Juror psychology helps win verdict for assault victim with mental disability

Johnson v. Amox, Tex., Cass Co. 5th Dist., No. 05-C-534, Apr. 20, 2007.

Billy Ray Johnson, a 42-year-old African American man, has a mental disability and lived for most of his life with his mother and brother in Linden, Texas. Described as a “gentle soul,” Billy Ray has never been violent or in trouble with the law. As a result of being assaulted at a party and left unconscious on the side of a road, however, Billy Ray now suffers permanent brain damage and lives in a nursing home. His assaulters received only light jail sentences after the jury in their criminal trial recommended probation, and it was left to the civil justice system to remedy the injustice.

One evening, while Billy Ray was waiting for a ride in the parking lot of a local convenience store, Owens, 19, an acquaintance of Billy Ray’s for the past 10 years who was aware that Billy Ray was mentally challenged, approached him and invited him to a “pasture party” on property belonging to Owens’s father. Billy Ray initially refused the invitation but agreed to go after Owens promised to return him to the store in time for his ride.

At the party, Owens gave Billy Ray beer and danced with him around the campfire. Several partygoers made fun of Billy Ray, using racially inflammatory language. After a few hours, only six people remained at the party, including Billy Ray, Owens, and three of Owens’s friends: Amox, 20, Stone, 18, and Hicks, 24. At this time, Hicks began encouraging Amox and Stone to beat up Billy Ray. Owens was aware of this but did nothing to protect or warn Billy Ray, who was incapable of understanding the danger of the situation and protecting himself. Without any provocation, Amox then punched Billy Ray in the face. He fell backward, hitting his head on the ground and losing consciousness. He began to vomit and make gurgling sounds, but no one present attempted to help him or call for medical assistance. For at least an hour, they simply stood around Billy Ray’s unconscious body. At one point, Owens picked Billy Ray up, tried to stand him on his feet, shook him in an attempt to wake him, and then let him drop back down to the ground. Hicks dissuaded one of the attendees from driving Billy Ray to a hospital because his blood would stain the car seats.

After about an hour, Owens, Amox, Hicks, and Stone drove Billy Ray to a dark, deserted road, dumped his body on an ant hill about six to eight feet from the side of the road, and left him there, in only his t-shirt and jeans, in 50-degree weather. They then proceeded to a local car wash to clean Billy Ray’s blood and vomit from Amox’s truck. A few hours after Billy Ray lost consciousness, Hicks—an employee of the local sheriff’s office—phoned the office to report a body lying on the side of the road. He and Owens directed a deputy sheriff to Billy Ray but did not provide any information about the assault.

As a result of the assault and the lack of immediate medical attention, Billy Ray fell into a coma. He suffered bleeding in his brain; aspiration pneumonia caused by breathing vomit into his lungs; a clavicle fracture; and numerous cuts, abrasions, and ant bites. Billy Ray remained in a comatose or semi-comatose state for several days. Despite extensive rehabilitation, he suffers permanent brain damage, affecting his mental ability, balance, speech, and swallowing. Because Billy Ray is no longer able to make executive decisions, he must now live in a nursing home, away from his mother and brother, who are unable to visit often, causing him emotional distress. His past medical expenses were about $173,800, and his life-care plan is estimated at about $2.84 million.

The Southern Poverty Law Center (SPLC) of Montgomery, Alabama, brought a civil suit on Billy Ray’s behalf in 2005 after Amox, Hicks, Stone, and Owens received only light jails sentences—30 days for three of them and 60 days for one—in their criminal trial. Johnson, through his cousin as next friend, sued the foursome. Suit against Amox and Hicks alleged assault and conspiracy to commit assault. Suit against Owens alleged premises liability in failing to protect an invited guest from a known dangerous condition and negligence in bringing Billy Ray to a situation that he knew was potentially dangerous and not protecting him, even though he knew Billy Ray’s mental disability prevented him from understanding the danger. Suit against all four men also alleged negligence in assaulting a disabled person and then dumping him on the side of the road instead of seeking medical attention.

AAJ member Glenn Perry, of Longview, Texas, acted as co-counsel on the case. Perry had previously worked on a case for the SPLC and is a great admirer of the center, so when he received a call from Morris Dees Jr., SPLC’s founder and chief trial attorney, asking him to recommend local counsel, he offered to work pro bono on the case.

Perry admits the legal team, which also included Dees, Kelley M. Bruner, and Rhonda Brownstein of SPLC; and Claudene Arrington of Hope, Arkansas, faced several obstacles. The most obvious challenge was the racial aspect of the case—four white youths attacked a helpless black man in a town that arguably still has deep racial fault lines and stereotypes. Less obvious, says Perry, was the attitude of the community toward the trial. The extensive, negative media coverage of the criminal trial and the community led many of its residents to firmly believe that one trial was enough and that no more “outside agitators” such as the SPLC were needed.

The trial team thus had to deal with potential jurors who had strong opinions about the upcoming trial and could not be relied on to act as impartial jurors. Because of this, Perry and his wife, Dr. Jan DeLipsey, a juror psychologist, paid special attention to jury selection. They came up with a model for the ideal juror, which was a middle-aged female active in church, who was or had been a caretaker for a person with mental disabilities. To find such persons and to weed out persons who might be prejudiced—not only against African Americans, but also against outsiders coming to Linden—Perry had potential jurors fill out a three-page questionnaire. Questions included what news sources they watched and read and what organizations they belonged to. Based on the answers, Perry and his team were able to disqualify for cause 50 potential jurors. The final jury consisted of one man and 11 women between the ages of 40 and 60, all of whom were churchgoers and eight of whom had experience caring for someone with a mental disability. One of the jurors was African American.

After the selection was over, Perry focused his attention on the trial. He had to overcome preconceived notions about both Billy Ray and the defendants in order to stand a chance at winning the case. Perry says there was an undercurrent in the community that stereotyped Billy Ray as a drug-using street person. Although Billy Ray spent much of his days walking around town, he was neither homeless nor a drug user. In contrast to Billy Ray, the defendants were all young, clean-cut, Caucasian members of the community from well-known families. Throughout the trial, Perry’s goal was to downplay the obvious racial differences and to focus on other disparities. He tried to convey the message that “[i]n America we don’t tolerate people abusing defenseless people. We don’t care about race or creed. The most vulnerable people in society are not to be victimized.”
Perry’s strategy worked. Owens and Stone settled with Billy Ray for confidential amounts, and the trial proceeded against Amox and Hicks. After deliberating for less than four hours, the jury returned a unanimous verdict finding Amox and Hicks each 40 percent liable for Billy Ray’s injuries; Owens 12 percent; and Stone 8 percent. They awarded Billy Ray about $9.02 million.

The trial was a very moving experience for Perry. “I’m an old cynic, but this renews your faith in fellow citizens and in the ability of our justice system to be a positive and powerful influence in our society.” Perry says that the members of the jury were the heroes of the trial. They are “decent, honest people with no ax to grind, who did what the system asked them to do.”

Plaintiff’s experts were Ramon Diaz-Arrastia, neurology, Dallas, Tex.; and Susan Garrison, physical medicine, and Ginny Stingent, life-care planning, both of Houston, Tex.

Although the trial is over, Perry and the team are still working on the case. They aim to obtain a guardianship for Billy Ray so that a special-needs trust can be set up to help him get into a facility that is more appropriate for his condition and to improve his quality of life. Regarding the trial and its outcome, Perry, who claims he is not a spiritual person, says that it was “[a]lmost a spiritual experience to be involved in the case. It was the Atticus Finch moment of my career.”

MELISSA C. HEELAN