CRUEL AND UNUSUAL PUNISHMENT

“It felt like we were going to get closure.”
— Caleb Farah

Caleb Farah is 18 years old. He was 16 when his sister, Shelby, was robbed at gunpoint and murdered at the Metro PCS store she managed on North Main Street. The heinous act was captured by video surveillance, and there is no real dispute as to the killer’s identity, 23-year-old James Rhodes.

Before Rhodes’ July 21 hearing, Darlene Farah says, her son Caleb was angry, lashing out at her over little things. “You just don’t know what this man has done to my family,” she says. “My kids are not the same. It’s torn my family apart.”

Now, she worries that her children are shutting down emotionally.

“My two kids — this is their senior year. It’s a critical time. They need to be able to focus. I wanted structure and stability for them,” she says.

During my visit to his home a week after the July 21 hearing, Caleb finally came out of his room to be interviewed after his mother had asked him three times. He curled up on the family’s couch in a large, sparsely furnished room, in a home to which they’d recently moved. Wearing pajama pants and a tank top, resting his head on his arm on the back of the sofa, he was not quite ready to face the day, much less a reporter.

“It felt like we were going to get closure,” he said.

“It” was the hope he pinned on the court hearing about whether the defendant in Shelby’s murder case, James Rhodes, would be determined to be intellectually disabled. Caleb wanted Rhodes to be deemed disabled so that he wouldn’t be eligible for the death penalty, because that would have meant a swifter end to the legal process.

“We would have never had to go to court or see him again,” he explained, sure that the state attorney’s office would have accepted Rhodes’ plea bargain for life in prison without parole, if only the court had found him disabled.

But the pretrial hearing didn’t go the way Caleb had wanted. Instead, Judge Tatiana Salvador ruled that Rhodes’ below-average intelligence was not low enough to be disabling.

“When they said he [Rhodes] qualified for death, it started everything over again,” Caleb said, “so it’s been kind of frustrating.” Since Rhodes was deemed not disabled, the state can move forward with its death penalty trial.

And that could mean years, or even decades, of legal turmoil for the Farahs, says one death penalty opponent.

It is not uncommon for families to advocate against death sentences for defendants. Jason Ortiz of Murder Victims’ Families for Reconciliation (MVFR), a national victims’ rights organization, offers this explanation for why that is:

“From our experience as an organization of victims’ family members, we’ve found that capital punishment does more harm to families by distracting attention away from the needs of the victims, often leaving them alone and without support, diverting resources that could help families cover costs of dealing with losing a loved one, and ultimately delays justice, with capital trials taking decades to come to completion and forcing families to relive the worst moments of their lives over and over. All of this damage can be avoided by replacing the death penalty to life in prison.”

“I don’t want the death penalty,” Darlene Farah says, adding that she’s urged the state attorney’s office to accept Rhodes’ plea ever since his attorneys made the offer, a year-and-a-half ago.

“I’ve always taught my kids that two wrongs don’t make a right.” She notes that she never believed Rhodes was intellectually disabled, however.

“It’s the system,” Farah says. “It’s the way the system is. If I didn’t have my other kids, I’d say, ‘Take it all the way.’”

Throughout the past two years, however, the criminal proceedings have strained Farah and her children emotionally.

“I’ve seen what it’s done to them,” she says. Where her son brims with anger, she says, her daughter Nycole bottles up her feelings instead.

“I think we’d be able to move on when it’s done and over with,” Farah says, “We will never forget about Shelby — but
the angriness … “

“I’m not fighting for his life.”
— Darlene Farah

After yet another court hearing held on Aug. 12, in which things didn’t go the way she’d prayed, Farah wondered whether it was “God’s will” for Rhodes to face death for killing her daughter. She told prosecutor John Guy that she was relinquishing the life-or-death decision to God.

But when asked what she wanted God’s will to be — if she, as one of God’s own, could do the choosing — she thought for a long moment then said, “I want it to be over. I don’t want to sit there and worry about the [capital] conviction being overturned and us going back to court.”

Farah is very clear that she is fighting for some semblance of normalcy for her two younger children, and not for the man who murdered Shelby. “I’m not fighting for his life,” she says, referring to Rhodes. She says the thought of Shelby’s painful last moments will always haunt her.

“I’ve prayed and prayed,” Farah says. “I don’t want the death penalty but they’ve [the Office of the State Attorney has] made it clear to me that they’re not taking the offer. I feel like I have no choice.” She adds, “They’re Shelby’s voice in court.”

While she says that her underlying opposition to capital punishment is rooted in her faith, Farah is more pragmatic than spiritual about her daughter’s case.

Referring to the July 21 ruling, she says, “I understand that death penalty cases have a special procedure. I understand it takes time. But we’ve been on a roller coaster. It took a year-and-a-half on that motion,” she says.

On Aug. 12, Judge Salvador scheduled the case to be tried on May 2, 2016. Sources say that another communication between prosecutors and Rhodes’ public defenders, held after Aug. 12, failed again to yield a plea negotiation.

“Highly unusual.”
— Attorney Kristina Musante, American Civil Liberties Union

In July, while discussing the plea bargain offer made by Rhodes’ defense team back in February 2014, Farah seemed frustrated, stymied by the prosecutors’ intransigence. “They put an offer on the table for life with no eligibility for parole,” Farah told Folio Weekly.

“It would be done. Over with. They won’t take it. Angela Corey won’t accept it.

“We’ve been begging, ‘Please accept his offer.’ She [Corey] knows. My kids want that. I want it wrapped up for my kids.”

Prosecutors told her she’d want Rhodes executed if she saw the video.

“No matter what I see,” Farah said, “I don’t want him to get the death penalty.”

“Shelby’s in heaven,” Farah said. “She’s fine. It’s Caleb and Nycole now. I have to focus on them. They’re here with me now.”

ACLU attorney Kristina Musante says that the years it takes to administer the death penalty are hard on victims’ families, and that’s why many state attorneys try to adhere to the families’ wishes when they ask for life sentences instead. Musante is campaign coordinator for Justice 4 Jacksonville, an ACLU-related group dedicated to bringing community awareness of the societal costs to administer the death penalty — both financially and in terms of the emotional toll on victims’ families. (Farah is not a member of J4J.) The campaign is aimed at Florida’s Fourth Judicial Circuit, which comprises Duval, Clay and Nassau counties.

“What we’re finding in Jacksonville,” Musante says, “is that the victims’ families’ wishes are not being honored [in death penalty prosecutions.] That’s highly unusual for a state attorney to do.

“Nearly every state attorney honors the wishes of the family, particularly if there is only one victim and the family members all agree that life without parole is the right choice. Agreeing to a life sentence would end this nightmare today,” Musante says.

Justice 4 Jacksonville gets support on this point from a surprising source. Marc Hyden, a former field representative for the National Rifle Association, now coordinates Conservatives Concerned About the Death Penalty. Hyden opposes capital punishment on conservative principles: pro-life values, fiscal responsibility and limited government.

“I think murder victims’ friends and family members deserve better,” Hyden told me. “They deserve swift and sure justice.”

I asked State Attorney Angela Corey’s office about the role of the murder victim’s family in the decision-making process regarding whether to pursue the death penalty. In a statement provided by spokesperson Jackelyn Barnard, the SAO declined to respond to that question directly.

In relevant part, the statement reads:

“Every single case the State Attorney’s Office (SAO) handles is important. In some cases, the crime is so heinous that it warrants pursuing a death sentence. Experienced Assistant State Attorneys in the Homicide Division thoroughly review each case that is considered to be death qualified and State Attorney Angela Corey then makes the final decision.”

There is no mention of any consideration of the wishes of the victim’s family in the SAO’s statement, and prosecutors will not comment on pending cases.

“Far too often, murder victim’s families are spoken for, but rarely are they spoken to and really heard,” says MVFR’s Ortiz.

The unusual disregard given to murder victims’ families who don’t want the death penalty pursued on their loved one’s behalf may be one reason capital punishment is relatively over-utilized here.

The Fourth Judicial Circuit’s use of the death penalty is hugely disproportionate to the rest of the state’s, Musante says. The circuit is home to only 6 percent of the state’s population and 8 percent of its murderers, according to Justice 4 Jacksonville.

In 2012, however, the circuit was responsible for handing out one-fourth of all of Florida’s death sentences. And in 2010 and 2011, the Northeast Florida Fourth Circuit accounted for almost half of all new Florida death sentences. Corey was elected in 2008, and re-elected in 2012.

Duval County ranks eighth in the nation in administering death sentences. It’s in a tiny minority of counties nationwide — only 2 percent — that are responsible for doling out more than 56 percent of all the death sentences in the United States.

Folio Weekly also asked State Attorney Corey’s office why her circuit’s share of death penalty cases is so out of proportion to the number of murders that occur in this part of the state. Within the SAO’s statement, provided by Barnard, the SAO declined to answer the question directly, but cited instead the factors that are used to determine whether pursuing the death penalty is appropriate, given the facts of each case:

“What many may not realize is, in order to seek the death penalty in a case, the facts and circumstances must meet a set of statutory aggravating factors which must outweigh the statutory and non-statutory mitigating factors. In Florida, there are 16 aggravating factors which determine whether the death penalty is appropriate. Some examples are: prior violent felony convictions; if the victim is under the age of 12; or the murder was heinous, atrocious or cruel. … ”

But critics say there’s another reason for so many death penalty cases in the Jacksonville circuit. Corey’s predecessor, former State Attorney Harry Shorstein, told the Clay Today news organization on July 9 that Corey “seeks the death penalty solely for personal reasons — to show she’s tougher than anyone else.” Shorstein went on to say that the high percentage of death penalty cases in the circuit was “unacceptable.”

While Justice 4 Jacksonville has charged that death penalty cases have “skyrocketed” under Corey, spokesperson Barnard told Clay Today that defendants sentenced to death under Corey were comparable in number to those sentenced under Shorstein.

“An expensive program that doesn’t work.”
— Robert Dunham, Executive Director, Death Penalty Information Center

Musante says that the difference between enforcing life in prison and enforcing the death penalty in Florida amounts to $51 million each year.

But Hyden, of CCADP, says that figure, which emanates from a well-known Palm Beach Post study, is now 15 years old. It’s a “very conservative estimate,” Hyden tells me, noting that the cost continues to increase over time.

“The cost is elusive,” Musante agrees, adding that J4J will be asking the Florida legislature to start keeping better track. Robert Dunham, executive director of Death Penalty Information Center, says monitoring death penalty costs presents a national accounting problem. “There is not any system in place in the U.S. that gathers up the true cost,” he says.

According to the Justice 4 Jacksonville Coalition, the initial trial in death penalty cases is much longer than in non-death penalty homicides.

More specialists, including psychologists, psychiatrists, and other professionals, are used, and more defense motions are routinely made, driving up the costs to the state’s judicial system — costs in the form of both time and money.

Because the stakes are so high, Dunham says, the additional expenses come into play regardless of what punishment the jury recommends, or upon which one the judge ultimately decides.

Dunham and Musante are also both concerned about the racial disparity in capital cases — an issue that merits an in-depth investigation in itself. J4J reports that 80 percent of capital sentences (12 out of 15) in Duval County, from 2009-’12, involved African Americans. In 2012, all five defendants who were sentenced to death were African Americans.

“There is no reliable evidence that the death penalty deters [murders] and there is significant evidence that it does not,” Dunham says. “The evidence says that this [use of the death penalty] is an expensive program that doesn’t work.”

Musante argues that the money could be spent on preventing crime, namely in the education budget, or on serving crime victims’ families.

Darlene Farah has made clear that she is not a member of Justice 4 Jacksonville, and that she feels the organization is too oriented toward protecting the defendant. While she wishes that prosecutors would assign life without parole for her daughter’s murderer, she’s quick to point out that she has confidence in Assistant State Attorney John Guy. “I have faith in him,” she says. “I appreciate what they’re doing.”

But, she says, “It takes everything out of me when I see him [Rhodes]. I don’t think I have the strength to get through the first trial.”

And the first trial is only the beginning.

On Aug. 12, Assistant Public Defender Debra Billard told the court that her client had a “treasure trove” of mitigating circumstances, i.e., reasons the death penalty should not be imposed. Three different doctors have been hired to assess Rhodes’ mental health, and they’ll need several more months to be sure that each one has ample time to complete their reports.

Add to those factors a separate sentencing trial, and an exhaustive appeals process, and it could be decades before the victim’s family is free from legal turmoil and media attention.

One Florida death penalty case, involving murder-defendant Jacob Dougan, has remained in judicial limbo for 41 years.

To make matters more complicated, the process of administering death sentences in Florida may get even more lengthy due to a pending U.S. Supreme Court case, Hurst v. Florida.

The issue in Hurst is whether the U.S. Constitution permits Florida to execute a defendant when his jury returns a majority-vote verdict, instead of a unanimous verdict, for death, in the sentencing phase of trial.

“The process is in question,” Musante says. “Why are we pushing forward with death trials when the decision won’t be issued until 2016?”

The Hurst decision could affect more than 40 percent of current death row defendants’ cases, Musante says, leading to new sentencing hearings and retrials. Musante estimates that each retrial costs about $300,000 in taxpayer dollars.

Rhodes’s Hurst motion has not yet been heard.

“She made me feel like I was OK.”
— Caleb Farah

Caleb has worked hard to make up for missed time at school, time he spent fighting lymphoma during 2010 and 2011 — he’s in remission now. His big sister was murdered in July 2013.

Then came the court dates, and more missed school.

He was set to join his little sister, Nycole, age 17, at Cedar Creek Christian School for their senior year this fall, but on the morning of our visit, he talks about dropping out of high school.

“I don’t really want to go, honestly,” he said. He pulled the strap of his shirt to show me a large, script tattoo, “Shelby.”

“She would understand,” he said. “No matter what I did, it was always OK. She made me feel like I was OK.”

Asked if he was OK now, Caleb looked down, shook his head.

Farah had mentioned that recruiters from the University of Georgia had shown an interest in Caleb. She reminisced about how Shelby went to all of his football games, cheering loudly from the sidelines.

“It’s not something I enjoy doing anymore,” Caleb said, noting that he’d recently decided to give up playing football. “It’s not the same without her. There’s so much going on right now. It’s hard for me to focus.

“I’d rather go to FSCJ and get my diploma and work and live normal. School just gives me another piece of stress I don’t need.”

“He’s at football practice now,” his mother messaged me a week after our first in-person interview. “So I take it he’s not going to quit school.”

“You can’t really let your guard down.”
— Nycole Farah

Nycole was soft-spoken, polite, and reserved. She was staying with close family friends whom she calls “Aunt” and “Uncle,” and didn’t want to come home for the interview. This interview was the first time she had agreed to speak to the media since her sister’s murder.

“Will you tell her why you don’t want to come home, Nycole?” Farah asked, as we sat together with her iPhone between us on the couch cushion. Nycole said her mom should go ahead and tell me.

“She doesn’t want to be close to anybody because she’s afraid they’re going to die,” Farah said.

I confirm this with Nycole. “Yes, ma’am,” she said softly. She said she’s had trouble sleeping since the murder, and that she’s had to grow up.

“You can’t really let your guard down. You can’t let other people see you down because they’ll take advantage of you,” Nycole said.

“I’ve gotten more into school and cheerleading so I won’t be at home. Because I miss her [Shelby].” Nycole acknowledged that she’s become more distant. “It kind of started making me shut down, as far as family. I’d rather be by myself.”

“I’ve always been the quiet one,” Nycole said, “but it’s just gotten worse.”

Nycole wants to leave Jacksonville for college, she said. “I don’t want to be stuck here. I don’t want to be in the same position as Shelby,” she added, referring to Shelby’s work schedule. “I’d rather be in school.”

Her mindset has changed since her sister’s murder. “Now, I think long term: what am I going to be, where I’m going, how I’m going to do it.

“I want to be a homicide victims’ advocate,” she said. And it’s not just for Shelby. “It’s for me, too.”

“She touched so many lives.”
— Darlene Farah

We ended my visit that day with Farah showing me photos of Shelby’s senior year: the senior picnic, the prom, standing with friends after a basketball game, senior breakfast, the Grad Bash trip to Orlando.

Shelby’s easy to find — in the center, smiling, surrounded by her friends. “She always lit up a room,” Darlene said. “She always had a smile on her face.”

“She touched so many lives.”

Darlene said that at Shelby’s murder scene, there were 300 people who gathered.

“Everyone at the crime scene
knew Shelby.”

The family has close friends who are police officers, and Shelby was interested in becoming a police dispatcher. She had inquired about applying for the job days before she was robbed and murdered.

“The evidence technician that was there? Shelby knew her. She had scheduled to ride with her.”

The family was civically engaged, and participated in several political campaigns over the years. Some photos from 2011 featured Shelby canvassing for votes in her “Alvin Brown for Mayor” T-shirt.

“I raised my children to be givers, not takers.”
— Darlene Farah

“I raised my children to be givers, nottakers,” Farah says, despite the family’s financial struggles since the murder. She hasn’t worked since then. “Nobody will hire me. They say to come back when the trial is over.”

Farah is a divorced mother who doesn’t say much about her children’s father, who remains absent even after his daughter’s murder.

Not having money is demoralizing, she says. “That alone can bring down a person’s self-esteem.”

But what bothers her most is not the evictions (the family’s had three since Shelby’s murder) or applying for food stamps (which she has not used.) Farah is bothered most by the fact that she can’t afford a proper burial marker for Shelby. Although Southern Monument donated a tombstone, Farah says that the staff at the cemetery, Oaklawn, has told her it’s not up to code for their grounds.

The vacant area over Shelby’s grave reflects the empty space she left in her family’s lives.

“It used to be when you saw one of us, you saw all four of us together,” Farah says. “They [Caleb and Nycole] don’t want to do things as a family anymore because they don’t want to do anything without Shelby.”

The sadness even extends to Christmas, Farah says. “My kids haven’t had a Christmas since Shelby died. They don’t want to do it without her.”

In her family’s tradition, Shelby lived the life of a giver.

She volunteered for Susan Komen Breast Cancer Foundation events. She fed the homeless every week. Instead of pursuing a position with the Jaguars cheerleaders, Shelby volunteered to coach a cheerleading team of young girls at the Brentwood Athletic Association. Shelby also started a scholarship fund for two small children whose father had died too early.

Friends have made YouTube tributes, which Farah plays for me. She shows me the blanket from the young cheerleaders Shelby coached. It’s covered with larger-than-life photo images of Shelby.

As she holds it up, Caleb retreats to his bedroom. Farah throws up her hands, exasperated.

“He [Rhodes] took away all three of my children’s lives. I don’t have the same kids,” she says.

She still hopes that maybe, just maybe, he will stop taking more of their time.

About EU Jacksonville

october, 2021

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