6.Resumed Voir Dire and Trial-Procedure Motions
276 linesBOYD YOUNG: Yes, sir. One other housekeeping matter, Your Honor. This is what has been marked as Court's exhibit number 65 with the State and the Defense handed up South Carolina law on Capital voir dire, memorandum of law on voir dire issues. I just want to make sure this is part of the record.
THE COURT: Yes sir, it will be. So that is 65. (Whereupon, Court's Exhibit 65 was marked for identification only.)
BOYD YOUNG: Your Honor, the Defense spent some time this weekend putting together what I thought was a comprehensive witness list because I knew the jurors were going to have to review it and marked it as Court's 63. The State has given--
THE COURT: No, 63, is that not the, no, that is 62. You are correct. 62 is the transcript and audio recording of all of that chat room stuff. This is 63?
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: The State has given me another copy of a witness list, I don't know what their additional witness is on there, obviously we would object to additional witnesses being disclosed today. I will go back and look at that and see if there is anybody on there, we will address that in the morning. The State has asked to make a list of just the Defense's that aren't already included on--
THE COURT: So is 63 the State's and the Defense combined?
BOYD YOUNG: Yes, sir. What it was, when it was turned over to us with 173 names on it from the State we added ours.
RICK HUBBARD: Your Honor, I haven't seen what he just handed up so I can't verify that. I know this, last time we talked he said we had until Tuesday to give you a complete witness list. So I don't know if we have turned one over yet. We have turned one over to the Defense, we haven't given one to Your Honor.
THE COURT: Okay.
RICK HUBBARD: This motion that we add a name now somehow has to be struck. I am not sure where that come from.
THE COURT: We need potential witnesses, not called witnesses.
RICK HUBBARD: Right.
THE COURT: All right. But the exhibit 63 is the State's list from Tuesday.
BOYD YOUNG: No, sir. That is the combination list we put together this weekend.
THE COURT: And the combination list. That is what I was going to say.
RICK HUBBARD: And I have seen it to go over and see if that is a complete list representing people that we have on our list.
THE COURT: Well, y'all double check. Would that not be the most efficient to give the potential jurors, one list with all the witnesses, both sides. I mean if that is right, tell me right now, tell me in the morning.
RICK HUBBARD: If I can tell you in the morning so we can go over it that way we won't miss anybody while we are trying to handle others.
THE COURT: Sure and I would hope that this list, the comprehensive witness list?
BOYD YOUNG: Yes, sir.
THE COURT: Or combined. What else you got?
BOYD YOUNG: Your Honor, my notes indicate that Your Honor has withheld rulings on motion number 70 and 71. 70 was the procedure to engage in the post-challenge questioning of jurors where one party felt that a Juror was struck for cause and made the challenge. What we are going to do as far as, we are going to send the jury out, Juror out and have an argument and determine whether or not the Court felt that Your Honor's clarification on the point and then bring the Juror back in to allow clarification on a particular point. But the, about rebuttal and everybody where you have jurors who will just answer the question, like, yeah, you know what, I think I am open minded when you are asking me questions and how Your Honor should deal with those types of jurors. We think the appropriate procedure would be not to allow each side to continue to get up and be questioned but to make the challenge, determine whether or not the Court felt further clarification is necessary.
THE COURT: Okay, I understand. So what you are saying is that one the Court determines there has been sufficient questioning back and forth, we stop if there is going to be a question on or a challenge made, the Juror to be excused and let the lawyers argue about it, let the Court make a decision, up or down but not continually go back, forth, back and forth until you finally get the answer you are hoping for.
BOYD YOUNG: Here is the issue, Judge. It is not the last person talking to the Juror that gets them to say a response that should be determinative by Your Honor about whether or not they are or not substantially impaired in their ability to follow and apply the law.
THE COURT: I agree with that.
BOYD YOUNG: It is not a one question determination and I think the State in some of the cases that they have handed up, one in particular was Bennett where they said. the magic question, can you put that aside, does not cure a biased response and that is part of motion number 71 to restrict rehabilitation in that asking jurors, if a Juror says I am biased. You know what, I think death is the only appropriate punishment for somebody who has been convicted of murder. To try and talk to the Juror out of a biased view is improper and to ask jurors, can you put aside your biased is not an inappropriate determination of the Court. The Court has to determine whether or not they are biased. And under South Carolina law any Juror who is impartial in the matter shall be set aside. To put this question to a Juror, the Juror says, you know what, I have heard a lot about this case and I have read a lot about this case and pretty much formed an opinion about this case. Well, can't you put that aside. Well, when Your Honor ask a Juror, can you put that aside they are going to say yes. But is that really how they feel and that is why that that question shouldn't be asked. Your Honor asked questions to try and determine what their biases are and how they really feel, not can you put it aside which is what the State is typically arguing is the only necessary question for voir dire, well, everybody has biases, can you put it aside and be fair. And if the Juror says yes to that they are somehow qualified. But as they noted, that is not the standard. The standard is are they biased, did they give a response that makes clear their biased and any Juror who is impartial should be set aside.
THE COURT: I understand your motion. Let me hear briefly from Solicitor Hubbard.
RICK HUBBARD: Your Honor, I believe you have complete control over voir dire processes. I would suggest the cookie cutter approach saying we can't ask follow-up questions because in some cases follow-up will help clarify things for Your Honor. You are the one we are trying to assist in the process. So you are the one that says, you know when you have had enough. Attorneys, please be quiet. Other times you can say, y'all can dip a little bit more, I need to know a little bit more without you having to get involved and do it for us. So I think that discretion to stay with you without adopting a hardset rule right now. Now, as far as Bennett, sure, there are times when somebody is going to say something, they are biased and they can't be unbiased. Well, I think Your Honor knows when that is the case. Your Honor is going to say, attorneys, I am satisfied with that. There are going to be other times when they are going to say, I heard a lot of things, whether they might have a conception of what the law or how things go. And we will ask, can you set that aside because that is the proper question and can you listen to the Judge as he gives the law. Can you accept the Court's law, not what you see on TV. Can you accept the facts in the courtroom, can you set aside everything that you heard prior to coming in here, that is completely proper. We only air when we are talking about a clear bias and you are the Judge of that.
THE COURT: I don't want to, I do think delving into it and it is going to be depending on the jurors, but jurors are novices of the court system, I think they are. And their answer to the question early on, I am always going to do it this way or that way. Perhaps they just don't understand fully all the law. It seems to me that a reasonable amount of questions from either side and if a jury exhibits that they are more firmly entrenched than one side or the other, once I hear enough that I think I can make the determination of biased or not, if it is going to be a challenge I will ask if there is a challenge. And say, yes, we will excuse the Juror and I will hear both sides, explain what they think the Juror said. The Juror testified to this, this and this and the follow-up question said that, that and that. I think he is fair. You or whoever, whichever is arguing, Judge, he was convinced here, here and here and here and here. I will make a ruling with outside the juror's presence on that and we will move on. All right.
BOYD YOUNG: Yes, sir.
THE COURT: I am not doing, I am going to use Solicitor Hubbard's cookie cutter approach. Once I have heard enough and I think I can make a determination, say, okay, challenge or not, we will go forward. If it is a challenge excuse the Juror, we will hear it.
BOYD YOUNG: Okay. I need to perfect the record on a couple of motions that we have heard and request final rulings on these motions. Motion number 53, prevent death qualification where we said, jurors shouldn't be asked about the death penalty. We have a trial on the merits phase of the case and then if that merits phase of the case is found guilty then we death qualify the jury to hear the punishment phase of the case. That motion was denied on April 25th and I just need to renew my motion and get a final ruling on that.
THE COURT: My ruling has not changed. We are going to go forward with one jury for both sides, for both portions, guilt or innocence and punishment phase.
BOYD YOUNG: Yes, sir. It is still denied?
THE COURT: It is still denied, yes sir.
BOYD YOUNG: Your Honor, we also argue motion number 80, I titled Hobby Lobby and jurors who came in with the religious objection to the death penalty should be allowed to serve despite their religious objection to the death penalty.
THE COURT: I denied that motion also.
BOYD YOUNG: Yes, sir. Is that your final ruling?
THE COURT: I am going to deny it again, final ruling.
BOYD YOUNG: Thank you, Your Honor. We have asked, motion number 69, I think you heard it at the same time which was to strike jurors as they were qualified rather than putting together a full, once a Juror is qualified but not struck for cause the State would go first and then the Defense would move to strike as you go. That motion was denied at the time and Your Honor ruled we were going to put together a panel and then strike from the panel.
THE COURT: Your suggestion was we strike as we went and once we accumulated enough jurors we are done.
BOYD YOUNG: Yes, sir.
THE COURT: I am more comfortable with having a panel and having sufficient jurors to conduct a full strike. And so I am going to consistently rule that's my ruling on that. Now, in that light it occurred to me last night or this morning when I was reading over stuff, the number of alternates we were shooting for, potential alternates, hopefully more than three, we are looking for six, I believe alternates. Is that y'all's recollection?
BOYD YOUNG: I believe the Court had said six.
THE COURT: If we don't get six, we are short of my goal, the statute requires we get a certain number of alternates and if we go above that we have to have a waiver or something signed. Am I wrong on that.
BOYD YOUNG: I have no idea.
RICK HUBBARD: I have no idea either, Your Honor.
THE COURT: I think there is a requirement to be put in light of, that we agree, the Defendant agrees that we have more than the statutory limit on, I want to look that up. But it occurred to me this morning or last night, it seems like there is a case out there that says, wait a minute, you went with extra jurors, did y'all agree to it or did the Court just make the determination of that. And the case I am recollecting it was of determination, it was a determination by the Court that the Judge wanted three alternates and that was larger than the number allowed by the statute. And I am using three, I don't know.
BOYD YOUNG: I have never heard of the statutory limitation on the number of alternates.
THE COURT: We are going to shoot for potentially six. Now do we need a waiver--
RICK HUBBARD: If they are not objecting or if that is what they want too we are willing to enter into that and put it on the record.
THE COURT: Okay. What if we only get four.
RICK HUBBARD: Judge, I think, I know Mr. Young and his attorneys and our office have been talking. We have always thought it would be prudent to have more than the general two that you have in so many of these cases. So I would say four to six would be great. If we only get four I think that is a good, safety net.
THE COURT: What do you think, Mr. Young. Similar opinion?
BOYD YOUNG: I have never had to dive into the alternates. So I have never had that to happen.
THE COURT: The trials you have been dealt with, all twelve remain?
BOYD YOUNG: Yes, sir.
RICK HUBBARD: I have had one where we pulled an alternate. We had a woman who had a medical condition in this courtroom way back when.
THE COURT: Okay. Is there going to be an issue or does anyone know of any rule whatsoever that my suggestion that we pick the jurors and whether it is 15 or 18, they are the jurors and they listen to the trial and then at the end then they are notified. So I guess they have to be told at the end of the first phase, okay, the first twelve here you go.
BOYD YOUNG: We filed a motion that Your Honor granted in that respect, that the alternates not be identified as alternates until they go out for deliberations on merits.
THE COURT: I like that, that everyone pays attention and no one feels like they are sitting in the alternate's chair which to me, I have been in courtrooms, alternate one, alternate two is written on the chair.
BOYD YOUNG: Right or they get shuffled to the back.
THE COURT: I want them to be a group called the jury.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: But we are still going to stick to the order.
THE COURT: Yes, they are drawn, we keep it, we know who they are, the first twelve, they don't know who they are. They just know they are one of fifteen or sixteen and then at the very end, all right, y'all are about to go to deliberate. I give my instruction and i will call the alternates out when y'all start your deliberation and then they find out who the alternates are when they are called out of the courtroom by the bailiff at the start of deliberations. That is my intent.
BOYD YOUNG: One thing that, this happens in every Capital trial that I have done voir dire in and that is, well, we create the list, the panels are back there, the jurors start coming out. But some Juror will be late so we will go ahead and take a Juror that is in panel one that will be, the seventh Juror in panel one will get voir dired first and the second Juror in panel one will get voir dired second. And I think it would be prudent to just make the determination, are we going to strike them in order that they are qualified and voir dired in or are we going to strike them in order that they are on the Clerk's list despite when they come in and both sides, I mean, you will figure it out in the first couple, well, I don't like that Juror, if I can move them down on my strikes or move them up on my strikes. So I think it would be, for the Court to say, we are going to strike them in the order that they are qualified in which is the order they come in the courtroom in.
THE COURT: You mean, so they are struck qualification wise off this list which starts with Juror 97 and then Juror 174. So if 97 is qualified and 174 is not and then 256 is, those are the first two coming down the pipe at you.
BOYD YOUNG: Despite what order they come into court on.
RICK HUBBARD: I agree, we stick to the list that the Clerk has drawn and the order the Clerk has drawn. Those that have fallen out, that is fine, we go onto the next person. Even if we take them out of order--
THE COURT: In voir dire, they still stay with this list.
RICK HUBBARD: Yes, sir.
THE COURT: I like that.
BOYD YOUNG: Whichever way y'all want to do it. I am happy to stay with the list. I just want everybody to agree now.
THE COURT: So, for instance. If I get a call from a member of panel seven and he wants to change and get qualified in panel nine because it is a different day and he has got something, a tooth to get filled.
BOYD YOUNG: Sure.
THE COURT: He still stays on his respective place on Ms. Frick's list.
RICK HUBBARD: Yes, sir.
THE COURT: Yes, I like that.
COURT CLERK: They would be marked qualified but they would still stay in that--
THE COURT: So if we qualified a member of panel twenty first he still stays at the bottom of the list.
RICK HUBBARD: Yes, sir.
THE COURT: I got ya, y'all are both agreeing to that. We stick with the list. Okay, that makes sense to me.
BOYD YOUNG: Your Honor, I know I had another copy of this and the State has a copy, this would be Defense motion number 98, part two where, I know the Court has some concerns about some language in that motion as being commenting on the facts. We have redrafted and changed the motion for the instruction to the jury and we have removed what we believe to be the language that the Court indicated was commenting on the facts. And I know the Court wanted to hear from us later on on that. Mr. McGuire will address it, further if the Court has any further questions about it.
THE COURT: Solicitor, you want a few minutes to review the modification?
RICK HUBBARD: Yes sir, I just got it.
THE COURT: Okay. Is this a, the Court's pretrial remarks to the jury after they have been selected or is this to be utilized before the voir dire of the Juror.
BOYD YOUNG: Before the voir dire.
THE COURT: I thought that was the question.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: Judge, I am kind of confused. I know we had markings on ours so I was assuming that was markings they made but apparently it is markings we made.
THE COURT: Since they are proposing, give me your comments first and then I will let Bill comment afterwards. Go ahead.
RICK HUBBARD: First of all, we have not seen your standard charge that you propose giving. So I don't even know what we are judging this against. But I am just saying, my brief reading over of motion 98, part two, I know at the bottom of the page, as a Defendant is usually presumed innocent, obviously he has always been presumed innocent. Almost all of the next page is problematic. They start talking about insanity that is, you are getting on the facts at this point about what they are pleading. And then on the merits phase, guilt, mental phase, talks about the verdict forms. Judge, I have never seen an opening where you do that. The following page talks about guilty but mentally ill. Then also on the second paragraph of their third page, last sentence it says, while jurors must be unanimous of the existence of an aggravating circumstances, existing of a mitigating circumstance can only be found by a single Juror. Basically it is the Juror holdout issue that we have had problems with in the past.
And then the last sentence, the jurors are unable to decide unanimously for a penalty then a sentence of imprisonment of life without the possibility of parole will be imposed. I don't know, we have always told jurors what their authority is, they can sentence to life, they can sentence to death. But we have never talked about the consequences of what happens if they can't reach a decision because that is your step. And to me it coaches that single Juror to say, I am not going to listen to my eleven colleagues here, I want to dig my hills in and hold out knowing that I can sabotage this whole case, I don't need to listen. So I think that is the danger of talking about the consequences of a deadlocked jury because it just encourages that. The final page, the whole last bit about, if you are in favor of the death penalty say so. Many people might find death is the only appropriate penalty for a sane man who intentionally and with a wicked heart killed his five small children. You are talking facts. That whole paragraph goes on, it is just completely inappropriate. Anyway, Judge, I think, I don't know what you are proposing as your standard. Perhaps it will help both sides if we had an idea because I am implying if it is based on what has been done in the past we can stick with that.
THE COURT: All right.
BILL MCGUIRE: Thank you, Judge. Sort of to tie this all up with what happened this morning. And part of our opening is going to relate back to is, the fact that the prosecution requested that the Court take a in-camera pleading from Mr. Jones. It was in a small courtroom behind this one and it was in secret and he plead not guilty by reason of insanity. It was not an open courtroom and the Prosecutor requested that the Court not inform the panel that that was, in fact, Mr. Jones plea, not guilty by reason of insanity. And there must be some advantage that the State is seeking by hiding this from the jury because what happened was, he did plead not guilty by reason of insanity, it is a plea, it is not a fact, it is not a comment on the facts. The State is seeking an advantage by keeping and hiding this fact from the jury.
RICK HUBBARD: Your Honor, I am going to object right now. I know this is a motion hearing but it is also a motion hearing with the media. So he is not just talking to you, he is talking to the press and characterizing our motives which are absolutely wrong and Your Honor ruled, hearing both sides. So I am going to object, if he has got a motion he can make it but he doesn't have to be so disrespectful and attribute motives to us that don't exist. We are simply trying to do our jobs.
BILL MCGUIRE: Let me be perfectly clear. What did happen was the State requested that Mr. Jones not be allowed to have a formal plea--
RICK HUBBARD: No, sir.
BILL MCGUIRE: --in public in front of the jury panel and the Court granted that request, took a plea from Mr. Jones in the small courtroom behind this courtroom where he entered a plea of not guilty by reason of insanity. This Court then came out here in front of the panel and informed the panel twice that Mr. Jones had requested a jury trial when, in fact, he has entered a plea of not guilty by reason of insanity. He didn't just request a jury trial, he has formerly entered his plea of not guilty by reason of insanity.
THE COURT: Okay. That is accurate. What the Solicitor didn't like was the reason that they made their motion. There may be a legal reason.
BILL MCGUIRE: It was their request, it must be some advantage they are seeking.
RICK HUBBARD: Your Honor, and they must be seeking some advantage by wanting to do it in front of the jury. I mean, let's get away from that.
THE COURT: Both sides have a reason behind their request.
BILL MCGUIRE: Sure but the State is trying to secure their advantage by asking us to be not honest to the jury and to withhold truthful information--
RICK HUBBARD: That is what I object to.
BILL MCGUIRE: Well, it's the truth.
RICK HUBBARD: Dishonesty. Judge, if he has got a matter he can just make to Your Honor without continually calling us dishonest, they were trying to get an unfair advantage. I am just trying to get a fair trial.
THE COURT: I understand and we are going to do that. Let's not comment on their motives, just what, where we are and why you want this.
BILL MCGUIRE: Okay. So we can agree that the facts that I laid out are, in fact, accurate. The reason we are asking for these proposed comments is that it informs the jury in panels of eight that Mr. Jones has, in fact, entered a plea of not guilty by reason of insanity and it explains the law with regard to that. I redacted and I edited these comments so it is absolutely not comments on the facts. The word, usually, presumed innocent must be a typo on my part, I apologize for that. But everything else in there is perfectly accurate, it is perfectly truthful, it is honest, it is accurate and I want to get on track to be honest and truthful with the jury, with the potential jurors and not hiding things from them. There is always comments from the Court about how this procedure works, the guilt phase, the merits phase, the penalty phase. And this case has very rare, extremely rare circumstances of having a not guilty by reason of insanity plea but I think the Court needs to explain that as well.
THE COURT: I think you are right.
RICK HUBBARD: Judge, I have a proposal that we talked about in the back room. In other trials what they have done, at least with aggravating and mitigating circumstances, the Judge has always given what the aggravating circumstances are because the State has to allege those. So that is laid out. What the Court's have been doing is giving a list of mitigating circumstances and going through them so you are not targeting and staking out jurors. I would say you can do the exact same thing with defense. And, Your Honor, I have a list, right here, you can do the same with potential defenses which would include accident. I have a feeling that is going to come up in this case, it certainly came up in some discovery we turned over to them. But, anyway, it includes self-defense, it includes insanity, GBMI, there is a number of these, Your Honor. Identification, some won't apply, some will apply. But you have one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve or so that you could list.
If Your Honor just said, here is a list of defenses, one or more of these may come out during this trial. That keeps Your Honor from commenting on facts. Then your question is, can you listen to the law on each of these defenses and if you find they apply can you apply it based on the law as I give it. That protects you. That way Your Honor is not, what they are asking Your Honor to do is comment on facts, comment on the Defense's, specific defense that they want to allege. That is, Judge, I think that is just not proven. I think that is why it wasn't done in Blackwell, it wasn't done in Stanko. And then they can follow up with a question. They can ask, if one of these causes, one of those defenses, is there one that you would find problematic that you, in your heart and in your mind you don't think you could give or you can listen to or one that you don't think is, you know, you don't believe in one of these defenses. I think they could follow up with questions. That is what I would suggest, Your Honor, that way we are treating it like the other Courts have treated aggravating and mitigating but you protect yourself by not commenting on facts.
THE COURT: All right. I have got to obviously have some sort of preliminary instruction. I am going to work on that, look at that in the morning and we can talk about it further because I think we are going to be a learning process either way.
RICK HUBBARD: Your Honor, while we are talking too, I just want the record to reflect to, what we did this morning wasn't a plea.
THE COURT: It was an arraignment.
RICK HUBBARD: It was an arraignment and generally you come in and you are either guilty or you say you are not guilty and you demand a trial which put onus on us, just to clarify for the record.
THE COURT: Can we, just so we are clear on your motion. Did I read it wrong, this is indictment 188, 189, 190, 191 and 195?
RICK HUBBARD: Yes, sir.
THE COURT: And not 192?
RICK HUBBARD: Yes, sir.
THE COURT: Are you okay if we correct that?
BILL MCGUIRE: Sure.
THE COURT: I thought there was a three indictment skipped.
RICK HUBBARD: I think the one on Nahtahn is 195.
THE COURT: I think that is correct. All right. I will pair this down to come up with my preliminary instruction and I will have it ready to give everyone in the morning before we get started with the first person. All right and we can argue, argue will be heard further.
RICK HUBBARD: May I pass up what we marked as far as their's as well?
THE COURT: Sure.
RICK HUBBARD: And, again, I have no idea what, if you worked up a preliminary charge of instructions or preliminary instructions. Of course, anything that has been used in the past and not come back, that is always safe. What we will do is we will type up a list of potential defenses. But, Your Honor, I believe if we ask it that way they can still follow up with questions.
THE COURT: All right, as far as aggravating factors go, can you enumerate some of them what you believe are present, so I don't have to open the file back up.
RICK HUBBARD: I think we have two. Child under eleven and two or more murders.
THE COURT: And likewise the Defense has provided some mitigation factors they intend to show?
RICK HUBBARD: Judge, I haven't seen a list but I am fine, basically what I think we need to do is go over all of them because as the facts come out there may be others that they want to draw from.
THE COURT: Could be.
RICK HUBBARD: And I would like to provide Your Honor with a potential list of defenses so we can handle that matter the same way.
THE COURT: And I thought you went over four a moment ago.
RICK HUBBARD: Yes, sir. And there are others, there is like identification, necessity, defense of habitation. There is a number of things that just may clearly not apply but I think the jury is going to understand that as we go through this.
THE COURT: But the one that has been plead at arraignment was not guilty by reason of insanity.
RICK HUBBARD: Right. There is also GBMI.
THE COURT: I have got that down.
RICK HUBBARD: An accident, as I said, can easily be mentioned. Frankly the mention of self-defense will even come out. There is the issue of potentially duress. And to follow the rationale defense as we get into the facts and he can potentially even say if it is a fear, a fear motive, that he is defending his habitation as well.
THE COURT: Any comments on that, Mr. McGuire?
BILL MCGUIRE: Sure. I think it is just going to muddy the waters and we just list all the possible defenses available to any Defendant in South Carolina, for instance self-defense, I think it is a bit absurd if we are talking about a self-defense case against five children, all very young. It sounds crazy.
RICK HUBBARD: Actually he was asked when he was being interviewed and then he said he did it because he said he was afraid his kids were going to kill him. So that is, in fact, you know, it becomes relevant. It sounds crazy, I admit, it is absurd--
THE COURT: He said crazy.
RICK HUBBARD: Crazy.
BILL MCGUIRE: Towards evidence of insanity--
THE COURT: I was thinking three, the accident, guilty but mental ill, not guilty by reason of insanity. Those three seem to be appropriate in this case.
BILL MCGUIRE: If we are doing these other things that don't really apply, I mean entrapment would be in there as well. I don't know why we would want to waste time with that, muddy the water, when we get to this voir dire, we are going to have to get through this issue of not guilty by reason of insanity. It is going to come up, it is going to be offered sua sponte by potential jurors. They are going to talk it, it is going to be publicity. We have to address it, let's be honest with the jurors, let's give comments that actually make sense--
RICK HUBBARD: Your Honor, this is trying to avoid statements on facts. That is the problem so it is not that we are trying to lie to the jury, we want to make sure that the Court is not speaking as to facts and then we are not allowing either side to speak on facts.
THE COURT: And I agree with you but if I say some potential defenses are under the statute, accident, guilty but mentally ill, not guilty by reason of insanity and perhaps others may be shown through the testimony, then that gets us a little quicker past the self-defense suggestion. But, you know, y'all have to admit, it was there. There has been a comment made and I don't think it would, I don't think it would sell very well either way.
BILL MCGUIRE: We are not going to ask for self-defense.
THE COURT: Okay, I thought so. I am going to work on this and hand it to y'all early in the morning. What else have we got.
BOYD YOUNG: Your Honor, I believe we have motion number 100 which is a motion to inform the jury of the consequences of not guilty by reason of insanity verdict. Your Honor said you had a copy of the one that Judge Mullen had used.
THE COURT: Yes, I have got that. I have got a flash drive with just about everything she used, from her.
BOYD YOUNG: I don't think it was, I think it was not what the State handed up. I am trying to find it.
THE COURT: Do y'all want to see it.
RICK HUBBARD: I am sorry, what is he--
THE COURT: He was asking about the, it was the Daise case, I think it is how you pronounce it. I was reviewing something Judge Mullen had used, yes, I have been and I got on a flash drive a lot of things from her. You are talking about the types of jurors?
BOYD YOUNG: Yes, sir.
THE COURT: Here is what she used. I am going to read, the first type of Juror. One who would always, no matter what, vote for the death penalty. If you would always vote for death over life in prison you are the first type of Juror. Those two sentences. The second type of Juror is now given the choice between voting for the death penalty or life in prison would always, no matter what, vote for life imprisonment. The third and final type of Juror would decide whether to vote for life in prison or death on a case by case basis. This Juror listens to the facts and the entirety of the circumstances and then votes. That is what she handed out. So it is a little briefer than the State's but it is a little, has a little more explanation than the Defense has proposed.
BOYD YOUNG: What was in the questionnaire that the jurors filled out in the case of Daise was, type one. For any reason whether a matter of moral or religious, philosophical belief, matter of conscious or personal belief or any other reason, can you say that you would always vote to impose the death penalty when the Defendant has been convicted of murder. Type two, for any reason, whether a matter of moral, religious, philosophical belief matter of conscious or personal belief or for any other reason, you say you would never vote to impose the death penalty when the Defendant has been convicted of murder. Type three,--
THE COURT: That is just convoluted.
RICK HUBBARD: It is.
THE COURT: I have got the questionnaire too but I find that to be very convoluted. I can understand it if I read it three or four times.
BOYD YOUNG: That is why I think that the version that the Defense has handed up today is the most simple and used upon.
THE COURT: On her questionnaire, there is a difference in the voir dire handout.
RICK HUBBARD: I think that short questionnaire is to the point. I think the only thing that differs from what we handed up is that there is, we added a little bit of opportunity for a witness to go, well, you know what, if there is other facts maybe I should, maybe I am not that person. See, you make them think which is what you want but it is always couched to the word, with the words, always. And that is what the Defense's proposal does not have, just feels it is appropriate.
BOYD YOUNG: It says the Juror feels it is most appropriate.
RICK HUBBARD: I have got, I fill that life without parole is the appropriate penalty when the Defendant has been convicted beyond a reasonable doubt of aggravated murder. I am not sure what aggravated murder, I mean it is, this is convoluted to me and I feel that the death penalty is appropriate. Your Honor, you need those sharp terms like you just read and like in South and like what we presented in our proposal.
THE COURT: Do you like Judge Mullen's, not the questionnaire version but the voir dire version, do you like that any better than the State's?
BOYD YOUNG: Give a choice, yes sir, I like it better than the State's. I don't think it misstates the law as much as the one that the State submitted.
THE COURT: Well, aggravated murder, if they were proposing it you would say that is not an accurate statement of the law. What is that, there is not really a statute that says aggravated murder, wouldn't you? I would.
BOYD YOUNG: Murder plus aggravation.
THE COURT: I can go with that. Aggravated murder is not really a defined term. I am going to find something I am comfortable with based on, I will look at that also. I am working first on my statement for the jurors and then I am going to work secondary on the three types of jurors to hand out tomorrow and we will go over that before we give them to the jurors. All right. Anything else?
RICK HUBBARD: No, sir.
BOYD YOUNG: Judge, we have motion number 100. The motion informing the jury about the consequences of a not guilty by reason of insanity verdict.
THE COURT: Y'all keep dreaming, I mean, I thought we answered that.
RICK HUBBARD: I thought we did too, your Honor.
THE COURT: I feel like I keep answering the same question over and over and over.
BOYD YOUNG: Your Honor, I think it was motion number 96 and then there was a subsequent memo of motion number 100. It has never been heard or addressed by the Court.
THE COURT: All right. Have we got to address it before the voir dire?
BOYD YOUNG: Yes, sir.
THE COURT: Why?
BOYD YOUNG: Because the jurors need to be told if you find him not guilty by reason of insanity it doesn't mean that he walks out of the courtroom.
THE COURT: I know, but can't that be done during the trial?
BOYD YOUNG: I am sorry?
THE COURT: Can't that be done during the trial, why I have got to tell them during that, have I got to fully instruct them on all aspects of the law during the qualification process?
BOYD YOUNG: No sir, you don't. But if you are going to ask a Juror, can you fairly consider a verdict of not guilty by reason of insanity for someone who is charged with the murder of five children and the Juror says, no, not if nothing happens to them, not if there is no punishment, not if they just go home, no. That is not what happens. What happens is they are committed to a State facility. And the jurors need to be told, when you find somebody not guilty by reason of insanity it doesn't mean that they go home, they go to a State hospital where they are treated. There is a possibility that they may, one day, be released, but that would be only per the Court and the medical providers.
RICK HUBBARD: Your Honor, I don't even know how you begin to do that. How long do they stay. You don't know. No one would know. They could let them out in two months. They say, you know, he is doing fine now, what he has to do is be outpatient a while. We don't want to keep him inpatient. He is perfectly fine on his meds. Judge, you don't know and why would a jury need to know, why. They need to know if it is life, what that means. They are not choosing death because there is a, they are afraid he is going to get out in 15, 20, 30 years. That is clear, the Court has ruled on that but on guilty but mentally ill, I mean, not reason, not guilty by reason of insanity, why they need to know. They just need to know he is insane and therefore he cannot be held guilty so, State, your evidence fails. Why do they need to know that and how in the world would you even begin to tell what the consequences are because you don't know, Your Honor. We know what the consequences are, if he got found guilty and sentenced to life, he dies in prison. We know that. That is set. If he is given the death sentence, that jury is told, that is not just a suggestion, it is going to happen. Now it may not depending on appeals but we never discuss appeals, we don't discus what happens beyond this courtroom other than life and death, that is what we have always done, not always. There is a time when we haggled over what life meant. But the Court cleared those up, said those get two options. And the Court was very clear to give a guidance to our Circuit Judges, what do we mean by life, what do we mean by death, what do you tell the jury.
THE COURT: What do you propose, Mr. Young, I would tell the Juror, if he is found not guilty by reason of insanity then he will be referred to the State Mental Health folks to be held for some indeterminate time, to be determined by them. What am I telling them. That is not really like the sentence to be imposed by the Court because, what do I say.
BOYD YOUNG: Your Honor, do you mind hearing from Mr. Secor with regard to this.
THE COURT: I don't mind, what do I say?
CASEY SECOR: Your Honor, in the supplements in motion number 96, which is, filed motion number 100, at the bottom, second to the last page there is a proposed instruction from the Court that we would ask for, to individual voir dire and states as follows. In this case we would be asked to consider four possible verdicts. Not guilty, not guilty by reason of insanity, guilty but mentally ill--
THE COURT: All right, you are killing Joy. I want to know what do I tell the jury. Skip and get to the good stuff.
CASEY SECOR: If the jury unanimously finds the Defendant not guilty by reason of insanity the trial will end and I will commit the Defendant to the South Carolina State hospital where he will remain for a period of up to 120 days during which time a determination will be made regarding the need for further hospitalization. The law provides that the period of further hospitalization could be the remainder of the Defendant's natural life. If the jury finds unanimously that the Defendant is either guilty or guilty but mentally ill the case will proceed to a penalty phase where the jury will determine whether the Defendant is sentenced to life imprisonment without the possibility of parole or to death. That would essentially just be, Your Honor, verbatim of what the statute is regarding confinement of a person found not guilty by reason of insanity.
And the argument that we are making is akin to the arguments that had to be made regarding the instruction of life imprisonment versus life imprisonment without the possibility of parole which it took three times for the United States Supreme Court to be resolved in this State before we finally got to the point that we said that jurors need to be told the truth about what the statute says regarding sentencing which is life imprisonment means without parole until death of the Defendant. I recognize that or rather we recognize that Poindexter, the South Carolina Supreme Court case, 314 SC 490 from 1993 states that the consequences of a conviction need not be brought to the jury's attention unless the jury has a statutory right to fix or recommend punishment. And we would, we would argue that in the case of NGRI the jury absolutely does fix punishment because there is absolutely no discretion allowed from the Judge in the case where the jury finds the Defendant NGRI. The statute requires confinement to the Department of Mental Health for a period that is described in the proposed instructions.
THE COURT: How does the jury find that, it is 120 days, that is not the jury describing that, that is the statute.
CASEY SECOR: I am sorry.
THE COURT: You said that, if a jury can impose punishment, some of those State's which is not South Carolina.
CASEY SECOR: Yes, sir.
THE COURT: NGRI means 120 days referral and then give a report and decide whether for further hospitalization is necessary and treatment is necessary. The jury doesn't decide that 120 days, the statute dictates the 120 days, does it not?
CASEY SECOR: Well, it is up to 120 days, that is what is dictated by the statute, yes sir. And then after that is dictated by the Department of Mental Health.
THE COURT: But I can't offer the jury, please indicate if you find him not guilty but mentally ill, not guilty by reason of insanity, how long you think he should be hospitalized. And they would say ten years, whatever.
CASEY SECOR: No, absolutely not.
THE COURT: It can't happen. So why am I following that line of thinking if the jury is not making suggestions.
CASEY SECOR: The primary concern as it was brought up in the case of Simmons versus South Carolina and Shafer versus South Carolina and Kelly versus South Carolina all discussing the concept of whether life actually means life is that without the information of how their verdict plays out, jurors are forced into false dilemmas when they are confronted by the various verdicts that they are considering. In attached to motion number 96 is an article that was published by Dr. Frierson where he tried to determine the extent of knowledge, members of the South Carolina Bar, we practice in the field of criminal defense involving cases that have been, that have involved mental health defenses. And the data that he gathered in coming to his conclusions in that article show that, at the time of the articles's publication which I believe it was 2015, twenty-four percent of South Carolina Lawyers who practice criminal law could not properly identify the legal definition of NGRI; forty-two percent could not properly identify the legal definition of GBMI; twelve percent could not properly identify the dispositional outcome of an NGRI verdict, eighty-six percent could not properly identify the dispositional outcome of a GBMI verdict and ninety-five percent of Judges in South Carolina found that GBMI could not be sentenced to death. Which shows a profound lack of understanding of people who practice in this field, people with expertise and education in this field fundamentally misunderstand these concepts. And so the question would be, if Judges and Lawyers who practice in this field don't understand I think it would be an absurdity to suggest that jurors off the street would understand the same concepts.
RICK HUBBARD: Judge, if I can jump in just real quick. The big difference is that jurors have been told what their sentences are. They only have two choices in sentencing, life or death. That is why the Court has said, we are going to let the jury know what life means, we are going to let them know that when they say death that exactly what it means, it is not just a suggestion, that is what it means. NGRI is not a sentence, it is not a sentence imposed by the jury. The only case law out there talking about what you need to inform a jury about is what is on their plate, what they can sentence somebody to which is life and death. NGRI, finding somebody not guilty by reason of insanity is not a sentence on Mr. Jones. At that point they have no authority and this Court doesn't have any authority over what happens to Mr. Jones. There is a statute that kicks in. There is one sentence so you will be telling the jury the consequence of something that they have no authority over and all the case law is about what do they have authority, that is what you inform them on, life and death.
CASEY SECOR: Your Honor, if I just may, an argument regarding the standards of decency that is articulated what I have identified is Defense motion 100. In 1994 United States Supreme Court found a jury instruction regarding consequence of an NGRI verdict was not necessary under a Federal statute or as a matter of Federal practice. And that case was Shannon versus United States, 512 US 573 from 1994. Twenty-five years later which is now, there are 30 jurisdictions that allow a jury instruction regarding the consequences of an NGRI verdict. And I am going to list them all but I would point out that Louisiana is one of them and Louisiana didn't require unanimous jury verdict until last year. There is another article that is attached, number 100 which, again, was published or was the work of Dr.
Frierson that was a study of qualified jurors in Richland County regarding their acknowledgment of this information and that study found that 4.2 percent of jurors correctly identified the definitions and dispositional outcomes of both NGRI and GBMI verdicts. 13.5 percent of the respondents who correctly identified the definition of NGRI believe the dispositional outcome was that the Defendant would be sent home without being required to spend any time in a psychiatric hospital or prison which is one of the primary points of this motion, is that if jurors believe that a person is going to be just set free upon conviction or upon rather acquittal based on NGRI there are jurors, as pointed out in Dr. Frierson's article, who are going to be swayed by that fear or concern or misperception and they will fail to follow the Court's instruction regarding NGRI because they believe it means that Mr. Jones is going to be released. And it is particularly problematic in a case where the State is going to present evidence, audio recorded evidence of Mr. Jones admitting to the killings and then being asked to render a verdict for the jury, may believe means he is going to go home. And I would point out with regards to the State saying--
THE COURT: In the big scheme of things, 120 days hospitalization plus some extra hospitalization, in a lot of folks eyes it means you go home. The other two options is no going home.
CASEY SECOR: Yes, sir. I mean, in light of, vouch your life versus 120 days, who wouldn't take the 120 days every time. Oh, yes, of course. But the jury is not going to know that, it is 120 days, unless we tell them and they are also not going to know that it comes--
THE COURT: I thought that is what you were asking, is to tell them exactly that.
CASEY SECOR: That plus the fact that it could mean up until the day he dies because he could be kept there, according to the statute, for no longer than the maximum sentence that he could have received if he were convicted which in this case would be five counts of life without parole.
THE COURT: All right. If I provide an instruction during the voir dire that a verdict of not guilty by reason of insanity has consequences, guilty but mentally ill treatment, that is what you want.
CASEY SECOR: Yes, sir.
THE COURT: It is certainly not something that I can invoke, the statute does what the statute says, I don't have any impact on a sentence because it is not a sentence. I believe the Solicitor, consequences or mandated treatment.
CASEY SECOR: It is, Your Honor. If you look at the Columbia Regional Care Center Patient Handbook that is attached to motion number 100, it is clearly a correctional facility. And the suggestion that a person that is being sent there is not being punished or is not to be incarcerated, I think is just simply untrue. There are a number of points in motion number 100 that lay out the similarity between the Columbia Regional Care Center and another correctional facility. One of which is that patients that are at the Columbia Regional Center, according to the handbook are, "not allowed to communicate with anyone in another correctional facility." That is how the Columbia Regional Care facility states it. They can't communicate with somebody in another correctional facility meaning that the Columbia Regional Care Center is a correctional facility. There is no contact visitation with patients, family members; there are count times, six or seven times a day; patients can't have pictures in their rooms.
THE COURT: I don't need all of that, I mean I appreciate you giving me some background on it. I just don't know that I can get into that in jury qualifications.
RICK HUBBARD: Your Honor, I don't think frankly can be gone into it at any point because frankly Your Honor would have discretion on, say you send him off and he comes back. It is all therapeutic, there is nothing punitive but ultimately there is another institution out there that is going to determine what care is needed, when he gets out. So if you were the sentencing Judge you wouldn't even know, in this case we have jurors coming in off the street who have no clue and they are going to be told about consequences to a process that Your Honor is going to even trouble graffling what and telling them what can happen. We are going to confuse the heck out of this jury, that is why I think under our statute, they have, the only statutory right when it comes to consequences, consequences of a life sentence and of a death sentence because that is something that is firm and it has to do with sentencing. NGRI is not a sentence, it is a verdict and so some how qualify what their verdict of not guilty is, consequences of not guilty, Judge, you are going down a slippery road, you can't even begin to figure that out.
THE COURT: Well, I understand why they are advocating this is because it gives them some middle ground.
RICK HUBBARD: I know but, Judge, what middle ground would you give them.
THE COURT: I don't know. I know why they are asking for it.
RICK HUBBARD: Sure, I know why they are asking for it too but Your Honor, when we talk about being truthful with the jury, truth is no one in this courtroom knows what would happen if he got an NGRI, no one. And the honest to God answer would be, ladies and gentlemen, we have no idea what would happen, how long they will get him. We have no idea. They might let him out, sooner than later, might give him therapeutic treatment but the bottom line is this, they are going to know he is not guilty, the State failed because we could not overcome the burden we have to carry to show that he was sane at the time he committed this crime. And that is the beginning and ending of their authority.
CASEY SECOR: Your Honor, I am not entirely sure that the Court and Solicitor Hubbard seem to have agreed the reason that we are asking, the reason that we are asking for this.
THE COURT: It is the same reason they made--
CASEY SECOR: No, no, I want to make clear, the reason is if we do not tell jurors about the consequences of an NGRI verdict they will--
THE COURT: Assume he is getting off scott free and impose a higher penalty.
CASEY SECOR: Or just disregard the evidence of NGRI. To not tell them anything is to assume that they will not assume anything about what happens to somebody who is found NGRI, that that will not play a role in their minds. And I think that Simmons and Shafer and Kelly made clear in situations where legal concepts are not likely to be understood we have to give jurors information to make sure that they are not making decisions that are misinformed or based on misperceptions about what happens to somebody after they are convicted or found NGRI.
RICK HUBBARD: I think the only way you can begin to get close to being honest would be able to say that the Department of Mental Health will determine what happens at that time and nothing else. Not 120 days, not 10 years, not life because no one here knows, no one knows and that is the honest to God answer. We are talking about honesty, I was getting battered for trying to--
THE COURT: Well, now, would that be something the State would be suggesting, if we are going to show a consequence and then, a verdict of that is found it is up to the Department of Mental Health what happens to him.
RICK HUBBARD: Yes, sir. And then what happens at that point is up to them. And I think that it has got to end there because we are looking at a crystal ball and we can't see a darn thing right now.
THE COURT: Are you saying that would be okay if I said the consequences are the Department of Mental Health deals with him, something along those lines. Are you suggesting that's okay. I am not sure that I heard that.
RICK HUBBARD: What is that, Your Honor.
THE COURT: What I don't know is this, if the comment is going to be made which I don't know, I don't understand why this is required in voir dire, why I need to go over the consequences a verdict of that form. Later on if y'all want to comment on it what are you going to comment and what are you going to say, if there are consequences to a verdict of not guilty by reason of insanity. You are wanting to do that at least in your closing arguments, I am presuming. And is it going to be allowable to say that the Department of Mental Health then administers treatment of Mr. Jones or something like that, is that what you are asking.
CASEY SECOR: I think it needs, I think the important, the important part is do it on the front in voir dire to insure that jurors don't have a biased or prejudiced against being able to consider that verdict in a case such as this because that is sort of the crucial inquiry is whether or not, whether or not they can be qualified based on whether or not they have ability to consider an NGRI verdict. And if they think that the consequences of an NGRI verdict are that he is going to go home and therefore they will fail to consider it then they are not qualified but we wouldn't know that unless we ask them on the front end. I mean, we tell them, as Solicitor said, we tell them about life without parole means life without parole until he dies, a death penalty means he will be strapped to a gurney and killed. This is just a suggestion that we tell them also about the consequences of NGRI to ensure that they will comply with Your Honor's instructions as well as their oaths as jurors.
RICK HUBBARD: Your Honor, I think if we do that at this point it will be, I think that would be staking-out.
THE COURT: I am concerned about staking too because my proposal would be some defenses, aggravating factors, all mitigating factors, depending on what is shown at trial any of these, you can consider mitigating factors as well as aggravating factors and defense if they are proven or shown to you by the evidence. Could you then follow the instruction of the law, that is kind of what I envision getting to the jurors. I think that is right on it but the staking is what everybody is concerned about. The Defense don't want the State to stake-out, death penalty only folks and the Defense--
RICK HUBBARD: I think Your Honor's ruling would be consistent with Savors and Poindexter, 431 SC 2nd 254 '93 case, that voir dire is not to be used as a means of pre-educating or indoctrinating a Juror as to means of impaneling a jury, that is also in Stanko, it is cited in Stanko as well.
THE COURT: I think I want to remain general and follow the broader brush track of defenses, aggravating factors, mitigation factors and not get into consequence of a NGRI conviction. I think it would, it seems to me the proper question would be, if it was proven to you that, thus and so, could you follow the facts and the law and find the verdict consistent to that. I think that is fair, I think that is not staking-out, but that is kind of where y'all want to go, something along those lines, don't you?
CASEY SECOR: Your Honor, I would point out, from Justice Pleicones' dissent, in Stanko where it says, a insanity defense is entitled to voir dire the jurors whether they entertain any bias against such a defense. In fact, this Court has already recognized the appropriateness of such inquiry.
THE COURT: All right, but the bias against that would not be consequences of it, do you think?
CASEY SECOR: I think if they were to consider an NGRI verdict because they misunderstand the consequences of it--
THE COURT: Like everybody else.
CASEY SECOR: Yes.
THE COURT: There is nobody that understands it.
CASEY SECOR: Well, according to Dr. Frierson, 4.2 percent of eligible jurors.
THE COURT: And very few Judges and lawyers.
CASEY SECOR: Yes. Which I think, it further poses a problem and further encourages just the truthful dissemination of information to jurors. And that is what, it took three times for the United States Supreme Court, for South Carolina to get right, you have to tell jurors--
THE COURT: You said United States Supreme Court earlier.
CASEY SECOR: I am sorry?
THE COURT: You said United States Supreme Court earlier.
CASEY SECOR: I meant United States, Simmons, Shafer and Kelly, it took three trips for us to figure out to tell the jurors that life in prison means life imprisonment without the possibility of parole which is, I would argue is essentially the same argument regarding, what is the reason for not telling them what the consequences of an NGRI verdict is when you know from Dr. Frierson's studies that people misunderstand it. It is not even close, there is a profound misunderstanding what these things mean. And leading it up to arguments of counsel, closing arguments, that is not evidence, this is information that jurors need to know on the front end and need to voir dire them to determine their eligibility and qualification and they needed to hear it from Your Honor in order to have, it is important that they must consider if they are going to serve on this jury, comply with their oath.
THE COURT: I am going to go with the broad brush of the factors, I don't know how we are going to deal with this specifically like you are asking. I don't know. What is the last one, y'all got one more motion, what it is because I want to put that one to the side, I am going to have to sleep on that. I am sorry we couldn't have this hearing last Friday but that was not anyone's fault, we didn't have a Court Reporter, that's not anybody's fault, I was told we were at the back of the line as far as getting a Court Reporter so quit asking.
BOYD YOUNG: Mr. Madsen, Your Honor, motion number 1010.
ROBERT MADSEN: Judge, motion 101 was a motion to exclude evidence and/or grant a continuance. Obviously, Judge, since April 1st of 2019 we have received no less than ten new additional emails, packets of discovery from the State, I believe we have received even three or four new ones since the filing of this motion. Obviously, Your Honor, this is not stuff that has just popped up, in other words, a witness has come out of the bushes. This is stuff that the State had access to for the last two, three or four years and all of a sudden we are getting it here, you know, on the eve of trial, a month before. Obviously, basically the dribbling of the information to us affects our ability to develop a comprehensive trial strategy and therefore denies Mr. Jones' due process rights, his right to present a defense. We ask that that information, that discovery be suppressed, in the alternate we ask for a continuance. Like I said, I think there were ten or eleven items that we have received in the last month and then since filing this I think we have received three or four more additional items of discovery from the State.
RICK HUBBARD: Your Honor, again, it is beating a dead horse, it is this theory that the State has discovery, one big pile and that we handed out and this where it has dribbled. As Your Honor knows, as we prepare a case we talk to witnesses, we do summaries even if it is discoverable or not. We turn stuff over we don't even have to. We do summaries of everybody we talk to. Ms. Jones, for instance. That conversation in preparation for court, do we use her, do we not. We talked to her, we turn that over. What they would be asking is that we just stop prepping, that we stop which would be ridiculous. And then also our duty as Prosecutors is that if we find something new we have to turn it over even if it is judging a trial or after a trial. That duty stays with me. So it is really, Your Honor, an absurd argument, it is based on the assumption that we have all of this evidence sitting in a back room and we are just handing it out, piecemeal. What is happening is, we are prepping our case, we are talking to people, some people for the first time, some people for the fifth time, we are turning it over letting them know what we are doing. In fact it doesn't prejudice them at all, it helps them, they see what we are up to, where we are going, what we are looking at. And as far as discovery, Your Honor, I know we have a duty to turn stuff over, we just got a report from them this weekend, you know, they are going to put an expert and their expert does a report, they have to turn it over, we got it this week.
THE COURT: We got Amber on the video.
RICK HUBBARD: Right. That happens. But we move forward. Your Honor, if something pops up and they need more time they can always ask Your Honor and say, hey, on this particular issue we need some more time.
THE COURT: And that is kind of my general practice as presiding Judge is, if something was given over late in preparation of trial, we delay the trial five days and would be five more days in preparation and five more days of this and another opportunity for Ms. Jones to get on the camera. If y'all can identify something that is hugely prejudicial because the State just dropped on you, that is something I can consider. If this is new or additional information or witness statements and we get a witness and y'all find out or the Defense is aware, this is totally new, we didn't know it and the State just gave it. You know, certainly we will allow time on that because of this. But I think it needs to be, I think you are correct that April 1st is a good time to mark, this is where we believe most discovery had been provided, we have gotten some since. The some since, April 1st, if something comes up and y'all need extra time to look into it, to investigate it, I think we can deal with that if it comes up. But if you can't identify something hugely prejudicial because the State has surprised you with a new expert or something, I am just making an example. I don't know what the eleven emails, packets of information is.
ROBERT MADSEN: Judge, I do have one thing, can we approach?
THE COURT: Yes.
(Whereupon, a bench conference was held.)
THE COURT: To the extent there is any other information, Mr. Madsen, if you need additional time to investigate it the Court will consider that request if you need it.
ROBERT MADSEN: Yes, sir.
THE COURT: All right, Mr. Young, you are about to stand up again.
BOYD YOUNG: Yes, sir. I think that is all the motions that we need to take care of, Your Honor, at this point and time. And just, then somewhat concerned that the State keeps characterizing, not guilty by reason of insanity, is the State's failure to meet the burden. While the law in South Carolina that the Defense has the burden to provide evidence to establish and my understanding is that the jury charge would be, if the Defense establishes by the preponderance of the evidence you should find him not guilty by reason of insanity.
THE COURT: I think Mr. Hubbard was talking in general terms, if that is the verdict then the jury didn't go along with their, the State's failure to meet its burden of proving guilt. I think that is what he was, just in general terms.
BOYD YOUNG: Or the Defense has been successful in establishing by a preponderance of the evidence that he--
THE COURT: That is what we are going to argue and tell the jury at the appropriate time. And I agree with you, that is your burden by a preponderance, not the State's. I think he was speaking in general terms, if the jury comes back with a verdict then the State's proof has failed to prove guilt, I guess.
BOYD YOUNG: Thank you, I just had some concerns. I don't necessarily agree with the statute but that is the way it is.
THE COURT: And that is not for us to agree or disagree with the statute.
BOYD YOUNG: I certainly have made arguments that the Court should find certain statutes to be in violation of the Constitution.
THE COURT: And I have heard some of those arguments from lawyers over the years myself.
BOYD YOUNG: They have been consistently denied and so, we are going to follow South Carolina law.
THE COURT: All right. We are going to reconvene tomorrow at 9:00. I am going to do my best to be here before then to give y'all these things I am working on tonight, the two things I am working on. All right.
BOYD YOUNG: Yes, sir.
THE COURT: The Clerk of Court and I are going over to the Court House to talk about the cameras and Joy is going to go over and put her equipment in. So we will go over there.