1.Pre-Arraignment Motions and Trial Administration
207 linesApril 29, 2019
THE COURT: All right, this morning, when we left Friday at our status conference there was an issue we had pending is to when to arraign, we have got to arraign Mr. Jones before the jury is selected. So we need to do that and there was a discussion as to whether to do the arraignment in the presence of the jury and we can arraign Mr. Jones now and we could possibly do it again in front of the jury. Mr. Young, please let me hear you on that issue.
BOYD YOUNG: Your Honor, Mr. Jones is requesting a formal arraignment in front of the jury panel.
THE COURT: All right.
RICK HUBBARD: We absolutely oppose it, there is no right to be arraigned in front of the jury panel. In this case he is seeking to take the plea of not guilty by reason of insanity. We have had months and months of discussion about everything from the mailer we sent out, the questionnaire we sent out to the jurors and all the debates we are going to have on voir dire. This let's them know specifically what his claim is, it is too early. This is not the forum for that. I think prudence is to arraign him here, it is not a violation of his rights, it secures his rights and we go in there and we draw a panel of jurors without specifically identifying their plea. I don't believe them stating that he is not guilty by reason of insanity is something they are entitled to do in front of that jury.
BOYD YOUNG: We can't start a trial without telling the jury that he has plead not guilty by reason of insanity.
RICK HUBBARD: Actually, we can, it is called opening statement. It is opening statement, what they propose for Your Honor was clearly an opening statement when he absolutely and inappropriately for the Court to state something that they can then change. Now a Court has staked out a factual, you know, defense for that. I think that is highly inappropriate. I think prudence is, we have been so prudent for you to conduct this hearing right here, let's go in there and draw and qualify the big panel and stick to our plan, Judge. I think we are spot on right now on how you are doing it.
BOYD YOUNG: Judge, the State wants to put a bag over the jury's head and not tell them what is going on because they want this trial to result in the death of Mr. Jones. Mr. Jones is going to be put to death or sentenced to life based on what the jury decides. And to ask them to decide that with blinders on is just ridiculous and it is unfair and it deprives Mr. Jones of due process and the Sixth Amendment right to a fair jury and his rights to due process under the Fourteenth Amendment in South Carolina and the U.S. Constitution. I have never seen a case where the Judge didn't say, this is what he is charged with, this is how he has plead.
RICK HUBBARD: And, Judge, there is no case saying he has a right to do it front of a panel, period.
THE COURT: All right, here, I have thought about this since Friday, with it being a Capital case, slightly different rights or additional rights are at play with the Defendant and Mr. Jones is in that position of being noticed by the State to, the State seeking the death penalty. My fear is that he is allowed to be arraigned in the presence of the jury, he is allowed to be entered to a plea. Understanding that not guilty is request for a jury trial and then an affirmative defense of the not guilty being by reason of insanity. I think it would be inappropriate for me to comment on the facts and I don't want to do that. I think that until the testimony comes out that my process with the jury is, Mr. Jones has entered a plea of not guilty by reason of insanity. The State has the burden of proving his guilt. I am already looking at what the form of the verdict form would be right now. But until we fill in testimony to that I am uncertain as to what all that would or could include. Potentially guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty are all on the table, are they not?
BOYD YOUNG: I haven't argued about, the only reason that not guilty would be on there would be jury nullification.
THE COURT: I mean that is all out there for me right now because I have no testimony to consider what would be on the thing. But potentially those are out there.
BOYD YOUNG: By statute, the statute says that when a Defendant enters a plea of not guilty by reason of insanity the Judge shall include four verdicts on the verdict form.
RICK HUBBARD: That is after testimony is in. Let's talk about we don't want the jury to know about this plea is absurd. It is just the timing of it. And, Judge, there is nothing that suggest that it is imperative that we do it right now. This is, it is premature, you haven't even qualified this panel. They are bringing in this courtroom now, all of preconceived notions of what is going on in this trial, what the law is, what the facts are, who knows. So it is inappropriate at this time. It just makes the challenge for everybody a steeper uphill climb. That is why you need to be in charge and I think the best way to retain the integrity of this case is to do what we need to do right here, have an arraignment right here, go in there and, Judge, I think they are the ones that need to come out in their opening and say they have got an affirmative defense. Because when we do the jury qualification, you know, all of those cases, Hill, Patterson, others about specific defenses or mitigating circumstances, we all make it, the law is clear, it has got to be brought. So we absolutely undermine what we are going to do right there.
BOYD YOUNG: It doesn't undermine us to get a fair Juror who can fairly consider not guilty by reason of insanity, guilty but mentally ill, guilty and not guilty. Those are all questions which Your Honor has to ask them in order to determine whether or not they are, in fact, impartial in the matter or should be set aside under the South Carolina code.
THE COURT: I think we have got all the challenges which the Solicitor is enumerating, which the Defense is aware of. We have got huge challenges in qualifying this jury no matter which road we take. I am not aware of another Capital case in South Carolina where the plea was entered not guilty by reason of insanity. I am not aware of it. There may be one, is Stanko a possibility?
BOYD YOUNG: Yes.
THE COURT: And I have not read Stanko. I think the more, I am going to call it, conservative approach to protect Mr. Jones' rights is to arraign him in the presence of the jury and allow him to enter that plea in that fashion so as to not, I am going back to some other cases that I have seen, Judges in Capital cases advise the State, they advise the Defense lawyers, yes, yes, yes, that is correct and that is done. But you have got to advise the Defendant too and I am kind of using that as an analogy. If Mr. Jones isn't allowed to do that potentially that is a mistake from the getgo.
RICK HUBBARD: Here is why I don't think it is. First of all, there is no case saying, he has a right to be arraigned. There is no case that says it must be in front of a jury panel, none, anywhere. Secondly, Stanko, which the plea was, he was claiming that he was insane. Even in the voir dire the Judge did not allow them to specifically ask about not guilty by reason of insanity. And,--
BOYD YOUNG: Because it has--
RICK HUBBARD: I have got the floor, I will give you a chance. The Judge broke it down and said, here are these ten options on mitigating circumstances and other matters. And so, Judge, to me, it undercuts everything if you do that, by taking him out there and letting him enter his plea right now. That is going to be on all the news right now and then when we are qualifying them they are going to be saying, well, Judge, you have already informed the jury so we might as well go down that road that no other Court is letting them do. Didn't do it in Blackwell, didn't do it in, you know, when they wanted to have a definition of murder, when they, you know, wanted to get into the various mitigating circumstances they wanted -- the Judge said, no, I am going to read the list. That is what Stanko is about too. To me, you are going to be hearing that argument the minute you give them this and they are not entitled to it. They are entitled to an arraignment right here. That is why I am going to ask you to reconsider or we are going to have a really big mess when we start tomorrow on panels. And I think it would be to the detriment of getting a jury which is ultimately, ultimately, it is not the Defense's lawyer's right, the Defendant's, it goes to getting fair jurors. And I think it is going to undermine the process of getting a jury panel.
THE COURT: It is going to be tough either way we go. All right, Mr. Young.
BOYD YOUNG: Your Honor, I was just going to comment. The ruling in Stanko was that the voir dire issues weren't preserved, they didn't use all of their strikes. There is a lot of dicta going back and forth about the Judge said, the Judge at one point and time said, well, if you are going to talk about affirmative defenses you have to list them all. The Defense said, well, we are abandoning that line of questioning. That is as far as it went. The opinion then goes on to say, at the end, we are in no way saying that the Defendant should not be entitled to ask about jurors views about the insanity defense and inquire -- there is nothing that says that shouldn't be allowed. The way that it was done and then abandoned in Stanko did not render the jury in that case fundamentally unfair and then Justice Pleicones' dissent goes into a pretty good lengthy discussion about how unfair it would be had the Defense elected to push the position on inquiring about not guilty by reason of insanity, which they had abandoned.
RICK HUBBARD: Here is the thing, Stanko wasn't talking about arraignment.
THE COURT: Do y'all have a copy of Stanko while we are talking about it? Wait a minute, I have got it in my notebook.
RICK HUBBARD: Judge, here is the thing, they are talking about voir dire now. And the Court said, yeah, it wasn't preserved but we are going to go ahead and address it. So they did because they knew a Judge like yourself would be faced with this exact same question. But what they are doing is interlacing voir dire with his right to come in here and plead not guilty by reason of insanity. It is a separate thing. My argument is though, Judge, you would actually be undermining all of your previous rulings by ruling that he can claim not guilty by reason of insanity in front of the jury panel because then it will undercut everything you have talked about on voir dire. But the case focuses on voir dire, they said they are going to give the Judge discretion, he did nothing wrong. I think--
THE COURT: She.
RICK HUBBARD: Judge Couch. No, no, Judge Deadra Jefferson, I am sorry, Couch was in Blackwell. But the Judge did nothing wrong. And Pleicones is actually, it is like they are building their argument on the dissent. But, Judge, it is not voir dire we are talking about now but if you rule the way you suggested you might we are going to be having a whole other argument about voir dire that these other Judges have carefully avoided. And I would suggest, Your Honor, that what your Colleagues did was very prudent by reserving that issue for yourself. Let him do it now, outside the presence of a jury and then when we do move to the voir dire you do what Judge Couch did and I think Judge Jefferson did it as well, that you don't let them get into specific factors. Judge, our position ultimately is simple. There is, when you are ultimately arraigned you are either guilty or not guilty. They have to come forward at some point and put forward evidence of not guilty by reason of insanity. They don't have a right to claim it now without putting anything forward.
BOYD YOUNG: They have our report from an expert that is saying--
RICK HUBBARD: That is their evidence, they are obligated to put forward and the Court can't embrace it at this point.
BOYD YOUNG: I can put it in now.
RICK HUBBARD: We usually try stuff in front of a jury once they are actually sitting on a jury and not now.
BOYD YOUNG: Unless we lie to them.
RICK HUBBARD: Judge,--
THE COURT: Hang on. Y'all don't get all--
RICK HUBBARD: I would suggest this too. It is not unusual for people on the Defense side to abandon a plea, take another tact, I think it undercuts all of that.
THE COURT: That is their risk if they do that. I mean, I agree with you. They can go where ever the testimony goes.
RICK HUBBARD: That is why this needs to start off right here in this room, Judge, not out in front of that panel. Because that is a risk and that is what we can take care of.
BOYD YOUNG: Judge, my understanding is that the Court has ruled on the arraignment issue and I would like to move on to one other matter.
THE COURT: I am not ready yet. Mr. Young, you want to be heard any further on this, Mr. Hubbard?
RICK HUBBARD: Judge, my final thought just to make it very plain. I think if we do this in front of the jury we will have created an issue during the entire voir dire process that we can avoid.
THE COURT: How are we going to avoid it. Let's suppose the plea is entered not guilty, I mean, I am sorry, not guilty and gets a trial. Then during voir dire your proposal would be ask the jurors during their individual questioning, what are your opinions for these mitigating factors and list most of them.
RICK HUBBARD: I think you have to list all of them and that is what the prudent course the Judges have taken because it keeps the Court neutral. And it also recognizes that is something that the Defense has to come forward on. So you stay neutral that way. But it protects the Defendant's rights because it is covered and the degree of how much that questioning is, Judge, you can determine that. And we may haggle over that but how far it goes, we will leave that to you and we understand that is your call. But right now an arraignment process, there is two pleas, guilty, not guilty. They have to put something forward to say not guilty by reason of insanity. That is why through the voir dire process you don't focus on any one plea or any one piece of mitigating evidence. You just, can you be fair for all of these things. That way they haven't locked in and when they do that is fine.
BOYD YOUNG: Judge, if that were true, which it is not then I wouldn't have to provide them with notice of an intent to offer a not guilty by reason of insanity. I wouldn't be required to submit to State evaluations, we wouldn't have any of that.
RICK HUBBARD: That has nothing to do with arraignment or voir dire.
THE COURT: My thinking is if he is allowed to enter a plea of not guilty by reason of insanity and be tried by God and my Country and then we go with the jury selection process then the process then would turn to considering the aggravating factors, considering mitigating factors and list them, numerous ones. Can you consider whatever is presented, whether it be aggravating, mitigating and be fair and impartial. Is that not basically the same result is, if they plead not guilty but do the jury voir dire in that fashion.
RICK HUBBARD: It is not for this reason. Really when we get to aggravating and mitigating we are talking about penalty phase. Not guilty by reason of insanity says we don't even get there. But what they want to do is, there is mental questions you can ask in mitigation. So it is going to be confusing to a jury, when does this even come up.
THE COURT: Oh, it is confusing.
RICK HUBBARD: Well, it is going--
THE COURT: It is for a non-courtroom participant, people that do this understand.
RICK HUBBARD: Which is why, if you rule that he enters his plea right here, however he wants to enter it, it really doesn't matter to us here. Out there it does because it is going to add to the confusion. That is your job to keep things from being confusing. And then when we go through this process it is clear that we have that burden, the guilt phase, we have a burden in the penalty phase should we get there to establish aggravating circumstances. And if you look at like Blackwell, for instance, they actually said because we have that burden, beyond a reasonable doubt. Actually said what the aggravating circumstances were in Blackwell as to the penalty phase and the mitigation factors the Judge said, here is the list. So there they had to claim a mental retardation. They didn't get into that on his plea, they didn't get into that in the voir dire.
All of that was done without the jury knowing and yet that trial was affirmed, the Judge was deemed to have done a proper job, used his discretion properly, that was Judge Couch. Stanko was NGRI and the Rule focused at that time was what do you do when you get to mitigating, aggravating. But it is very clear from there, the Judge was doing everything he can to not, not announce what is going on to the jury and certainly not from the Court. But he stuck, she stuck to those factors as well and that case was upheld, it was judicial discretion but it made sense. There was one dissent and that is really the argument being taken by the Defense now. So proper course and prudence is to do the arraignment here. There is no prejudiced, there is no case anywhere that says ask in front of a jury. In fact, prudence would say it isn't. I have never known an arraignment where you enter in anything but guilty/not guilty anyway. But say he wants to do it here--
THE COURT: Well, you know, in Stanko that wasn't discussed is whether he was arraigned, whether he did or not.
RICK HUBBARD: Right.
THE COURT: That hadn't been addressed.
RICK HUBBARD: But you see from how Judge Jefferson handled the NGRI issue as far as mitigating circumstances. She made them read the list and I think that is why. If she had done, I think implication is if the arraignment had been done in front of the panel it would undercut all of that.
BOYD YOUNG: Nobody ever read any list in Stanko.
RICK HUBBARD: They went through, they didn't get into specifics.
THE COURT: I thought they named off several--
BOYD YOUNG: She said, if you want to ask about insanity you got to ask about all of them.
RICK HUBBARD: That's right.
BOYD YOUNG: And in dicta, they said we are not getting to that, that claim was abandoned by the Defense, there is no issue to rule on.
RICK HUBBARD: But they went ahead and ruled on it to give--
BOYD YOUNG: They didn't rule on anything, they just said--
RICK HUBBARD: They most certainly did--
THE COURT: Y'all be careful now. Joy is doing a tough job over here.
RICK HUBBARD: Although it was abandoned and the dissent disagreed with that. Although it was abandoned we will go ahead and address it. Because they know Judges like yourself need guidance and that guidance says the prudent course--
THE COURT: All right, here is what I think the ruling in Stanko was. They kind of took the middle ground and contrary to dissent's view which would be Justice Pleicones' view, our hold in no way interposes an absolute band on questioning jurors about their views of the insanity defense, rather we hold the trial Court's ruling limiting the scope didn't deprive him of a fair trial.
RICK HUBBARD: Right.
THE COURT: So they didn't say you couldn't do it, they said the way she did it was fair anyway.
RICK HUBBARD: Right. And Judge Couch did it that way and my argument is this, is that is the product course that, Your Honor is going into a massive trial with a ton of issues. You have two Judges, Judge Couch and Deadra Jefferson that kind of set a good path for you, something that you know has been tried and true. My question is, is Your Honor comfortable carving a path on your own without any guidance at that point. I think you cut the tether at that point because the minute you do this in front of the jury panel their argument is going to be, Judge, they already know. So why are you limiting us like Judge Jefferson did, why are you limiting us like Judge Couch did. And then it is just going to become, what do you think about insanity. It is going to open up a can of worms.
THE COURT: I think we already got that can of worms open. I understand what you are saying.
RICK HUBBARD: How, Judge?
THE COURT: How are they not going to ask the mitigating factors to the jury.
RICK HUBBARD: I think they can as they go along but when you harp on one I think that's where Judge Couch and Judge Jefferson said, no, prudence says leave it wide open because right now the trial hasn't started.
THE COURT: I agree with you and I don't want them to focus on one but I want them to focus on all of them in the questioning, the voir dire questions of the jurors.
RICK HUBBARD: But then at that point the jury is going to know, well, we don't need to focus on any of these others. That is the problem and right now they need to be open to whatever is there. That is my problem, Judge.
THE COURT: Okay. Hang on, go ahead.
BOYD YOUNG: Insanity is not a mitigating factor. That is not relevant, if he is found insane we don't have a penalty phase. Insanity is not a mitigating factor, you can't address insanity as if it were a mitigating factor because the jury has to be told, if you find, like they were in Blackwell, if you find him insane it is over, there is nothing else for you to consider. The State in Blackwell asked jurors repeatedly, even if he is found mentally disabled or mentally retarded can you still consider death. That was their question, that was their issue on a specific mitigating factor to get jurors to say, yeah, even if he was mentally disabled we would still give consideration to death. That is what Blackwell holds. To say that insanity or to imply that insanity is appropriately addressed as a mitigating factor, I mean, I don't even know where to start on that as far as, that is Morgan and United States Supreme Court cases go, you have to first find somebody guilty of a death eligible murder and then ask them how they feel about the different penalties that they are going to be asked to consider. That is what we intend to do, that is what we did in Blackwell which is the transcript of the State and the Defense have handed up. Blackwell wasn't an insanity case. I do think Your Honor is going to have to address biased as to whether or not a Juror can fairly consider not guilty by reason of insanity as a possible verdict and then ask them, having discarded that defense, say, all right, let's say you say he is not insane then we could move to a second phase and these are issues that you have to consider there. You have to be fair and impartial in the first phase, you have to be fair and impartial in the second phase.
RICK HUBBARD: In Stanko, Your Honor, the question was affirmative defenses, going through various affirmative defenses for that first stage. Here is the problem, Judge--
BOYD YOUNG: What are the other ones?
RICK HUBBARD: Well, self-defense would be one and things that we end up having to overcome and disprove by evidence beyond a reasonable doubt. I think that the appropriate time for a jury to hear from you on this issue is when you are telling them what the law is. Because then the evidence is in, it is premature right now. Now if they want to cover any other affirmative defenses out there and go over those that is fine.
BOYD YOUNG: You can't cut a new path by allowing the Defense to do what it wants to do. The only thing that you can do is unnecessarily restrict the Defense and run the risk of impaneling a fundamentally unfair jury. Why even get close to the line. There is nothing improper or wrong about what we have been asked to do. The only thing that you could do is say, no and run the risk of saying, well, the Defense requested it, they weren't given it, now we have got to do it again. The case of State v. Aerial, South Carolina Supreme Court 311 SC 35 said it is not error, then the Defense can't complain about it later when they waived their right to arraignment, we are not doing that.
RICK HUBBARD: Here is what I would propose, Judge. Just to make it clear to a jury about the guilt phase. That we list out all defenses and affirmative defenses such as guilty but mentally ill, NGRI, but we also have like self-defense. And there is probably just going to be a handful, short list, that all of those are out there.
THE COURT: Depending how the testimony came out those were potentials.
RICK HUBBARD: Right, for voir dire. But for this purpose we don't, and then he is protected, he is protected because every single Juror can potentially be asked about this, without going out there and saying, well, we are sticking to this one. See what I am saying. I think that is the compromise.
THE COURT: I like your voir dire suggestion very much and I think that is kind of my thinking, that is where I am going on voir dire but they get to be arraigned and say what they want to say.
RICK HUBBARD: But, Judge, my problem with--
THE COURT: I understand the risk, it can--
RICK HUBBARD: Then it kind of undercuts having a list, why have a list.
THE COURT: Because if I am going to be neutral on the facts I don't know how the testimony is going to come out. I can honestly say that, y'all have a better idea, y'all have talked to your witnesses. But you never know.
RICK HUBBARD: We don't.
THE COURT: So the testimony comes out after hearing all the testimony, evidence presented and received from the Court, their affirmative defenses, their mitigating factors, their aggravating factors. Whatever has been proved beyond a reasonable doubt and/or with the affirmative defenses, can you be fair and impartial in light of all of that, all the mitigating's, all the affirmatives, all the aggravating. I am not saying we list them all every time but list, don't list the two that are in this case, list multiple ones with each Juror.
BOYD YOUNG: In Blackwell we just listed the two, kidnapping and murder of a child under the age of eleven.
RICK HUBBARD: That was because, that standard practice for aggravating circumstances, when the State is coming forward with the burden of proving beyond a reasonable doubt, that is standard to put the State's mitigation, aggravating factors. But, Judge, this goes really basically the arraignment process, when you have a list of affirmative defenses or defenses they are picking one. So in my mind what I am trying to argue, trying to prevent is, it is kind of like, all right, jurors, focus on this one and then it becomes a staking question which you are trying to avoid in voir dire by listing. So why do that part in front of them, it serves no purpose whatsoever but to create an issue when they get up and go, but Judge, you already did it in front of the jury. Why do we need to go through this or why can't we just focus on one.
THE COURT: I don't want to focus on one, I agree with you.
RICK HUBBARD: That is why, I think if you do it here, we go out there, all his defenses are out there. They are protected one-hundred percent, both of his lawyers and certainly more importantly as the Defendant. Otherwise the law doesn't require him to do in front of a jury panel. And, Judge, if there was a case they would be putting that in front of you ASAP. There is not one, they are asking you to go where no one else has gone and I am asking why, when we can protect his rights and the obligations of his Defense attorneys by doing this right here and going out there and then when we break up the panels and do voir dire, we will have a short list of defenses including insanity, guilty but mentally ill because that is going to be an option, that is going to be an option if they put forward any evidence and we know they will. And at some point they could, it leaves them the pathway of saying, that could be their best option at some point. I know they don't think that now, maybe it is not. But that way you stay out of it all together and you do it here, we walk out there, qualify this panel. That is the best way, otherwise you are carving new ground and going where other Judges haven't gone.
THE COURT: All right. I don't think I agree with you on everything but I think they get to be able to say that and I can tell them, I am not going to buy their argument, well, just focus on the one that you have already basically waived it as legal argument, not so. Mitigating factors, not going to focus on one, we are going to focus on several. Aggravating factors, the same thing. Affirmative defenses, more than one. They are not going to be able to say, Judge, you said it when they arraigned him, the cat is out of the bag. That is all we want to do is stake them out on that.
RICK HUBBARD: But that is the fear we have with getting a qualified Juror panel, jury panel, petit jury, is that the cat is out of the bag. So that, all right, you have given us these other ones but clearly those don't matter, those don't matter, and now, but they might at some point, that is the danger that even--
THE COURT: That is the benefit too, is telling the jury, an individual, look, there are several options here. The State has got to put its case up and prove what happened, the aggravating factors, you also need to consider mitigating factors, you also need to consider affirmative defenses, multiple ones when you are talking to the jury. Yes, they are going to be focused on it but aren't they anyway.
RICK HUBBARD: Well, but the problem is, now they have scoped out the jury right now, the panel before we even have had them raise their right hands and qualify them. And said, listen, you may hear a list but there is only one we are concerned about so you don't really need to focus on the list. It takes that from you and gives it to them, that power, Judge. And there is no case law saying they are entitled to that.
THE COURT: I got that. You keep arguing, all right, stop now.
RICK HUBBARD: I know, Judge.
THE COURT: I have kind of made up my mind.
RICK HUBBARD: All right.
THE COURT: I am going to let them to do it but I am not going to let them streamline and focus on just insanity.
RICK HUBBARD: Okay.
THE COURT: Can't do it.
RICK HUBBARD: Yes, sir.
THE COURT: I agree with you on that, that it has got to be considering what is presented because I don't know what is going to be presented, there is going to be multiple things presented factually through the evidence and to the testimony, exhibits. And what is presented is what I am going to be required to instruct on the law. And I am going to try to do that. Now, am I clear in my ruling that when we get into voir dire, I don't want an argument. If I am going to get one then I want to know it now. Judge, forget about all the other mitigating factors, we are not staking but we are going to only ask very focused questions on that one issue. Am I going to get that.
BOYD YOUNG: Your Honor, I am happy, I know that we have motion number 98 which we are going to address this afternoon after the qualification of the jury regarding what we request Your Honor to charge the Juror panels before proceeding with individual, sequestering voir dire.
THE COURT: I have not read that yet. Tell me what that is, you said 98. It is hard for me, 98 is exactly, what does it say.
BOYD YOUNG: It asked the Court to instruct the jurors prior to individual sequestering voir dire about not guilty by reason of insanity, what that means, who has the burden of proof on that. And to be open and honest in their feelings about whether or not that is something that they can give fair consideration to. And if they reject that defense can they then fairly consider penalties of life or death and to be open and honest with their response. This is not a legal task, they are just supposed to tell us how they feel about certain things. The State is trying to put blinders on a jury, don't tell them what the truth is so that they can impanel the jury uncommonly willing to convict and sentence to death.
THE COURT: Hang on, stop, I am reading very rapidly. Is this not more or less what I said to Solicitor Hubbard, is I want to present guilty, guilty but mentally ill, insanity, not guilty, broad terms because I am not aware of what the testimony is going to come out to be. Is this not exactly that?
BOYD YOUNG: Yes, sir.
THE COURT: Then I want the Solicitor to tell me why, if I rule like I do and say, not guilty by reason of insanity, we kind of got to do this but all of them.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: If Your Honor rules as you have already ruled, that we are going to do his arraignment out there in front of the jury and he says what he is going to, what his plea is, that motion is unnecessary. At that point this Court does not need to latch in on one defense and say, let me tell you about that one. And then when voir dire comes we have a list. So I absolutely object to that motion, that undermines what you just ruled. And that has been my concern from the beginning.
THE COURT: All right, is this not commenting on the facts?
BOYD YOUNG: No, sir.
THE COURT: How is it not, that is what I am trying to avoid is, I don't appear to take a position on the facts and am required to not.
BOYD YOUNG: Yes, sir.
THE COURT: The fact is, potential Juror, Mr. Jones does not contest that he killed his five children. Pretty fact specific.
RICK HUBBARD: Which is staking-out.
BOYD YOUNG: Staking-out means asking a jury to, I mean staking-out has a meaning. I understand the State says it all the time. But that phrase means asking a Juror if I prove he is insane will you agree to vote not guilty which hopefully it would take the path that it has to. But if I prove that his dad loves him will you agree to vote for life. That is the stake-out motion.
RICK HUBBARD: There is not a case that says, here's the definition of staking-out.
BOYD YOUNG: There is a lot of cases--
RICK HUBBARD: If I can state my--
THE COURT: Y'all are going to get beat up in a minute. Don't talk over each other.
RICK HUBBARD: Many cases talk about staking-out and Patterson is one of them and Hill, I believe. Your Honor, the bottom line is, they are asking you to do what no Court does, comment on the facts. So now the black robe is giving the, premature of their defense. I think it is improper, absolutely improper and will undercut everything we have been working on.
THE COURT: All right, Mr. Young, one more time, why would I be allowed to comment on the facts of the, taking the lives of the five children.
BOYD YOUNG: That is just what the plea means. I mean, it is not a comment on the facts to say this means he admits he killed his kids. That is not an issue, it has already been decided. It is not something that the jury has to worry about, are they going to decide it or not to decide it. Here is what their issue is for their trial. As far as cases, there is not a case that defines staking-out, there are cases that go into great depth about defining staking-out. We provided the Court with U.S. v. Johnson. I know it is an Iowa District Court opinion but it goes into great detail from around the Country in addressing all the laws about staking-out and the only definition that South Carolina has ever used is the one from North Carolina which is cited and discussed at great length in Johnson.
THE COURT: Here is what I am going to do. I want to hear you further on this but that sounds like that's commenting on the facts. I am apprehensive about that. We are going to arraign Mr. Jones in front of the jury, I am going to let him say not guilty. I want to leave his affirmative defense off in the presence of the jury. And then when we get into voir dire we are going into the broader portions. I am not going to let him say it in front of the jury for fear I get caught in commenting on the facts. Later on want to tell the jurors individually, can you consider what the State can prove, aggravating, mitigating, affirmative, broad picture so as to not get into the staking-out issue. I am concerned about that.
BOYD YOUNG: We can't do that. We can't go out there and say he pleads not guilty because it is not true.
THE COURT: But, I mean, can you name a case where someone says, I am not guilty by reason of self-defense, is that allowed to be plead?
BOYD YOUNG: No.
THE COURT: Why not?
BOYD YOUNG: It is not an affirmative defense, it puts the burden on the State to disprove self-defense whereas in an insanity case by law in the statute we have the burden by a preponderance of the evidence to prove insanity. You have to, this is how he has plead. This puts the burden on the defense by a preponderance to prove this defense.
RICK HUBBARD: That is just it, it is a factual question. I am concerned also about, addressing burden shift and right in the beginning. So I think what Your Honor said will be fine. And then on voir dire, everything they want will be covered in voir dire but under your control, your control, Judge. They are not going to go out and be affirmative defense of guilty of mentally ill. I mean, how do you do that. So that is where we are, Judge. Because I would still be entitled to try the case and say, no, he's just guilty.
BOYD YOUNG: Guilty but mentally ill.
RICK HUBBARD: And I am elected to prove his guilt. I think Your Honor's final conclusion, I am fine with that. We will probably get into a lot more stuff than I want to on voir dire but that is certainly Your Honor's discretion. But I think that handles the arraignment appropriately, not guilty is not guilty. We can come into the reason later and it is not guilty because of reason of insanity. The effect is the same.
THE COURT: Let me hear back from Mr. Young.
BOYD YOUNG: It is not what the law is and that is not what, not guilty by self-defense or not guilty by entrapment are not verdict forms. The verdict form is not guilty by reason of insanity, guilty but mentally ill, guilty, not guilty. His plea is not guilty by reason of insanity. To go out there and say, we are going to start voir dire by lying to the jury panel and telling them something that is not true so that we can pretend that we are not getting a jury uncommonly conditioned to convict and sentence to death is, I don't know, something that I have never seen.
RICK HUBBARD: Here is a compromise then, here is my compromise. Since we have already talked about how we will handle voir dire, handle it the way Your Honor suggested, just go ahead and do the arraignment here and therefore it takes that issue away. He doesn't have a right to be out there anyway. He can plead the way he chooses now, there is no comment on facts then we are good. If we just do it that way we are good, Judge. There is no issue at all.
BOYD YOUNG: As long as the Court instructs them that he plead not guilty by reason of insanity.
RICK HUBBARD: There is no law saying Your Honor, no case law saying Your Honor has to inform the panel.
THE COURT: Here is what I am going to do. We are going to arraign him right here. He can enter the plea as you wish. We will go in front of this jury panel out here and say, we are here to pick a trial, here are the indictments, he has asked for a jury trial. And then we get into the voir dire. How does that strike you. Not going to say he has entered a plea of not guilty therefore gets a jury trial. I am going to start out, he has asked for a jury trial. Voir dire, we get into all of this.
BOYD YOUNG: Well, we have to say he has entered a plea of not guilty by reason of insanity and we will talk to you about it individually when you come back. And then we can hash out this afternoon what gets said and what doesn't get said.
RICK HUBBARD: We will be doing that anyway. I think what Your Honor poses is perfectly appropriate. And then the information they want is going to be covered but in panels under your control. So you have individual jurors at that point, that keeps you in charge.
BOYD YOUNG: All you can do by agreeing with the State is put an issue in the case. If you agree with me is not putting an issue in the case.
THE COURT: No, no. Every time I make a ruling I am putting an issue in the case. It is a ball or it is a strike, it is an issue. All right. I am much more comfortable with what I just decided. We are going to arraign him right here, he enters his plea as he wishes. We will go into the jury room to qualify the jury, publish the indictments. He has asked for a jury trial. And then we qualify the jury in big panels, I mean in the big panel and then once we bring back to smaller panels we get into all of this as you suggested here. That is when we start saying, all right, he has entered a plea and we can tell them that, that he wants a jury trial, here are your array of choices that are going to be, considering this. That is kind of what I am envisioning, is that going to be unfair to your client?
BOYD YOUNG: Yes, sir.
THE COURT: How?
BOYD YOUNG: Because they are not going to be told that he has entered a plea of not guilty by reason of insanity.
RICK HUBBARD: Your Honor, the question for the jury is, if that plea is made, in addition of whatever else may be made, can they consider it, will they understand it and could they actually, if they believe it true, vote on it. That is handled in voir dire. Your Honor's ruling protects the Defendant that way. I think it protects them completely. What they are asking about fairness has nothing to do with the arraignment.
THE COURT: Now, we are going to arraign him here. I am going to leave it open right now as to when I get in the voir dire whether the Juror, individually is told exactly what you are asking. That is not off the table, I am going to leave that open but for purposes of the big panel he is going to have a trial by jury, he is going to be arraigned in here. All right.
BOYD YOUNG: Yes, sir. I want to just sort of enter my objection and make sure that I am protected on the record with regard to this issue.
THE COURT: Sure.
BOYD YOUNG: Okay.
RICK HUBBARD: Thank you.
BOYD YOUNG: So I don't want to have to object to Your Honor out in front of the big panel.
THE COURT: You will not, I will note the arraignment took place earlier and we are ready to go with the jury qualification process and everyone is protected on the record. That should protect you sufficiently on that issue.
BOYD YOUNG: Thank you, Your Honor. Two other issues that I need to address with the Court. This is the first available opportunity, I know that I have sent it to everybody about the potential Gag Order violations for Mr. Jones. I want to make sure I have raised it on the record at my first available opportunity. We have obviously moved for relief, or not obviously, we haven't done it on the record yet and we do move for a continuance and change of venue and the punishment option based on the subsequent violation of the Gag Order. I will imagine, I have discussed that with the State and we will take that up further this afternoon.
THE COURT: But for the purposes of the record your request for continuance, violation of the Gag Order and all of that, you have made a timing, appropriately done that. And we will argue it this afternoon after we qualify the big panel. Is that sufficient. I have not ruled on that but, yes, you are protected.
BOYD YOUNG: I have made everybody and the record aware about it.
THE COURT: And that was for several issues but one was the chat-room video that was on the internet for a short time over the weekend. And the Court was, I had an opportunity to review it before it came down. And whatever other issues you may have with the media and any publicity this morning. We will discuss that this afternoon but you are protected for that. I have not ruled on it but you are protected.
BOYD YOUNG: Thank you, Your Honor. Two other issues, one other issue that I need and I know I asked the Court, I think it was probably late Friday to see if they could call over to the sheriffs department's and see what was going on with Mr. Jones' glasses.
THE COURT: And we did. She did.
COURT STAFF: We are following up, I just haven't heard back.
RICK HUBBARD: And I will state from our point of view, the glasses, you mean of evidence of the broken glasses or what are you talking about or glasses that he--
BOYD YOUNG: He needs to be able to see.
THE COURT: During one of the pretrial hearings from the last two to three weeks, it was brought to my attention that his glasses had been broken or been lost and not the ones that you may have, the ones he was using over the last several months. Something happened and he had been examined for a new pair and they were in route somewhere and if they are where they are, can we hustle them up, what I understood the request to be.
BOYD YOUNG: That is what the request is and, you know, just point out to the Court, the recent Fourth Circuit decision, Bryant versus Sterling, March 19th, 2019 decision in which a Juror couldn't hear and they reversed the trial because the Juror couldn't hear. And I would analogize that to the Defendant not being able to see. I understand and I think, I don't, I am waiving Mr. Jones not having glasses today but we need to get them before we get started in the trial. He has got to be able to see.
THE COURT: Do you have any idea?
COURT STAFF: I didn't inquire Friday, my fault, I inquired this morning and I am waiting on that.
THE COURT: Thank you.
BOYD YOUNG: I understand.
THE COURT: Okay.
BOYD YOUNG: Mr. Secor had asked, I think I had asked and I misrepresented to the Court on Friday that the Juror types that were in the questionnaire in Blackwell, that is not correct, in the questionnaire in Blackwell. They were in the questionnaire in Daise which is another transcript that I am happy to provide the Court. However, I do think that the easiest way to handle that would be to go to the jury types or allowing the jurors to go to those types today. Everybody who selects one or two, going to the back of the line, let's just talk to the people who select three and move forward from there.
THE COURT: I am uncomfortable with that. I think we will do them in the panels of four as we are going to call them in starting tomorrow and give it to them as prompt as we can before they come in. I understand that request and since we hadn't sent them in the questionnaire, we were already there so I am going to stick with the plan on that.
BOYD YOUNG: One final thing as far as timing goes, in reviewing the Blackwell transcript this weekend, it looked like we did about twelve jurors a day to get the qualified panels.
THE COURT: And we are looking for twelve tomorrow, we are going to do four at 9:00, four at 1:00 and four at 3:30.
COURT CLERK: No, you said eight.
BOYD YOUNG: Eight at 9:00.
COURT CLERK: Eight at 9:00, eight at 1:00, eight at 3:30.
THE COURT: That's right. I have been reading Blackwell, four, four and four. That is where I got the number from.
BOYD YOUNG: We will see how it goes, I just wanted to make sure that the Court was aware that is about how it went.
THE COURT: And I would like, Ms. Frick, I am going to lean on her and Ms. Counts. If it moves slower then, we are going to delay them and get them where they are not stacked up on each other because that is no fun. We don't want that pressure of them sitting there waiting and I don't want to inconvenience them if we don't have to. All right.
BOYD YOUNG: Mr. Jones has asked me to ask the Court, due to his status at the Lexington County Detention Center, he is not permitted to have like a safety razor to shave unless Your Honor were to order them to allow him to shave, it is my understanding. I don't want to run afoul of any of the jail rules where they can stand there, watch him with a safety razor, so that he would be allowed to shave.
THE COURT: He hasn't done that?
BOYD YOUNG: No sir, he has just been using clippers.
THE COURT: Are they allowed to shave?
COURT STAFF: They are provided razors, Your Honor.
BOYD YOUNG: Mr. Jones is not because of his mental health status.
COURT STAFF: I will check with the jail administrator.
THE COURT: We will check with the jail administrator. I don't see a problem with him provided, he is supervised and having a safety razor to shave and it doesn't seem, with a little bit of supervision, that shouldn't be an issue at all.
BOYD YOUNG: Yes, sir. We can turn it right back in.
THE COURT: We can get something worked out on that issue. Okay. That shouldn't be problematic tomorrow. Y'all want a minute before we do the arraignment because I want to step off and use the restroom.
BOYD YOUNG: Sure.
(Whereupon, a short break was taken.)
THE COURT: Y'all can have a seat. We are waiting on the Clerk of Court.
RICK HUBBARD: I believe she has got the indictments.
THE COURT: She does, I think they are in an envelope.
RICK HUBBARD: I hope so.
BOYD YOUNG: Your Honor, we will waive reading of the indictments.
THE COURT: We will publish the numbers and the charges on the record for purposes of the arraignment.
BOYD YOUNG: I think they are on, right there in front of Your Honor.
RICK HUBBARD: Here are the five indictments, Your Honor.