4.Voir Dire and Trial-Procedure Motions
71 linesTHE COURT: Anything we need to hear before we get into our panels in the morning.
BOYD YOUNG: If we can take care of a couple of housekeeping matters. At the time where we filed our, we made a Court's exhibit, I don't remember what number it was, it was a notebook that had all of the photographs of the remains, about 415 pictures. And we have handed up and given a copy to the State of a memorandum of law with a couple of articles attached regarding the emotional nature of gruesome photographs and how they should be served. I filed that motion today just to make sure that it is part of the record so that would be Defense motion 102.
THE COURT: And that motion will reflect back to the large notebook, I think it was 59 or 60.
BOYD YOUNG: Yes, sir.
THE COURT: Whatever the big notebook is. It is only a big notebook as a Court's exhibit. It will be reflected in regards to that.
BOYD YOUNG: Yes, sir.
THE COURT: Okay, fair enough.
COURT REPORTER: That was number 61.
THE COURT: It is number 61.
BOYD YOUNG: So the memorandum, Defense motion number 102 is in regards to the pictures contained in Court's exhibit number 61.
THE COURT: Right. And is there a ruling on that motion, did I not defer until the State decided what they wanted to use and what they intended to use and then we take up at that time whether it was relevant and or undue prejudicial under 403 or whatever bases y'all raised.
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: And that, Your Honor, was going to voir dire on gruesome photographs to the jurors.
RICK HUBBARD: Voir dire on gruesome photographs?
THE COURT: Well, I think the nature is not exactly on gruesome photographs. The voir dire was going include some comment from the Court of subject matter of the trial involved the deaths and bodies of young children, a subject matter of that type, would cause you not to be a fair Juror, something along those lines.
RICK HUBBARD: Because I know how we are going to try to try it, obviously as clean and straightforward. Obviously we run a risk of, you know, looking like we are parading kids in front of a jury. So I would request that it will involve graphic testimony involving small children. And it may be just that, that way that covers testimony but it covers whatever physical evidence might come in too.
THE COURT: And that what he was alluding to, voir dire as to the subject matter in general with maybe photographs.
BOYD YOUNG: There is going to be photographs of young children who were in a car during the summer for approximately ten days.
RICK HUBBARD: That is just getting into the facts at that point, Judge. What I prefer and what I think is clean, this is going to involve murder of, a case that involves the charge of the murder of five small children. And I am fine up to, some testimony or evidence may be graphic in nature. But other than that I think you are commenting on the facts.
THE COURT: Subject matter being that in general.
RICK HUBBARD: It is sensitive subject matter, can you listen to that.
THE COURT: All right.
BOYD YOUNG: Your Honor, I am going and I have made these Court's exhibits number 64 and 65. Number 64 is the Defense's proposed three types of jurors, the State has a copy, I believe the Court has a copy as well but I will give the Court another copy of what we propose the jurors, in determining whether or not they are one of the types. I know the State proposed a different version. I am happy to argue about that now.
RICK HUBBARD: We propose the standard version that has been used in every Capital case for as long as I have been practicing law.
BOYD YOUNG: That is just not true. I mean, I know that they wrote standard form on the bottom of it. That does not mean the standard form is not a form from the Court. The Prosecution has proposed it in a number of cases. And that form, and it was the form that was proposed in Blackwell but it is not a standard Court form, it is not the form that has been used in every Capital case. And there is a number of problems with the form that they have proposed. And when Your Honor reads or the jurors read that form to themselves it requires jurors to say, I am the type of person who has already made up my mind without regard to any evidence as to the appropriate punishment. And that is not what we are asking jurors to decide. We are asking jurors, based upon a conviction for an aggravated murder, do you feel the death penalty is always appropriate. Do you feel the life penalty is always appropriate or do you feel the life or the death penalty may be appropriate.
That is the way we have written it out, it is very short, it is very brief, it is not confusing. The way the State has laid it out, it says, the first one is, do you think you are required to give the death penalty in every case of murder. Well, first off, Your Honor is going to tell them that at the start that the death penalty is never required, not in this case, not in any case, not in the worse case you can imagine. To put required in there just signals to the jurors that a jury that has been selected, type one, is going to be an unfair Juror. It says, you are the type of Juror who is unfair and can't consider anything. And we think that language is problematic and the easiest way to do it is to simplify it and say, are you the type of Juror who thinks based upon a conviction, beyond a reasonable doubt, for aggravated murder, the death penalty is always appropriate. It is one sentence, it is one thing, it is easy, you compare it to number two. And the State's proposal for number two is like, are you the type of Juror who would come back with penalty having already made up your mind that it is going to be life without regard to any evidence which, of course, signals to jurors not to select number two. And then number three, I believe it reads something like, are you a fair person who and all of that language in it, leads the Juror to one conclusion. Just ask them a fair question and get a fair answer. We are going to voir dire on it anyway.
RICK HUBBARD: What motion number is this?
BOYD YOUNG: It is not a motion, we are just arguing about, we submitted three types for the jurors consideration. First off, we would ask that the three types not be used at all. That motion was denied. Based on that denial we have submitted a proposal for the three types for the jury--
THE COURT: What is the standard three types.
BOYD YOUNG: Judge, they wrote standard at the bottom of the form.
THE COURT: Where is the one that you are referring to that is not standard.
RICK HUBBARD: The one he is referring to?
THE COURT: Yes.
RICK HUBBARD: The one he gave you is not standard because I have never seen it. I can tell you, in all the Capital cases I have been in, the one that you see in Blackwell and these other cases--
THE COURT: That is what you are talking about on a piece of paper, that is what I am asking.
RICK HUBBARD: I think, I have submitted it. I don't have a copy.
BOYD YOUNG: I don't have a clean copy.
RICK HUBBARD: We will try to get you a clean copy, Judge.
THE COURT: I am certain I was handed one up and Ms. Frick and I had one and we discussed when we were working on the proposed questions questionnaire.
RICK HUBBARD: That is the one that is all marked with his editorial--
BOYD YOUNG: You can ignore my notes as far as what the actual language they handed up is.
RICK HUBBARD: Judge, we will get you a clean copy but it is what they used in Blackwell, that is what they have used in these other Capital cases. It didn't come from our office, it is not what I am trying to persuade you to use like it is some kind of new form. It has been used multiple, multiple times. Your Honor, we are having somebody send it to you.
THE COURT: I have got it.
RICK HUBBARD: Okay. I thought we had talked about this some time ago, Your Honor.
BOYD YOUNG: When?
RICK HUBBARD: Your Honor, I think if you look at the Blackwell, the transcript, it will give you multiple times in the transcript where Judge Couch when over those three types.
THE COURT: I am looking at the one that was on the, I am not exactly sure of its source, but it is more of the traditional one. I've looked at what Judge Mullen used when she had a trial several years ago and I am looking at the one presented by the Defense. I am leaning going towards the traditional one. You see a lot of testimony back and forth with Judge Couch on the traditional one and some modifications of it. And then you see a lot of testimony and the question is, Juror type one is basically defined, kind of generalized. And I expect that is going to happen here. There are going to be some editorializing of the three types, you are not going to read it verbatim.
BOYD YOUNG: The jurors are going to be asked to read it verbatim.
THE COURT: I understand.
BOYD YOUNG: And it is not coming from the Court. And this form has never been approved by the South Carolina Supreme Court. They never said, these are the appropriate types of jurors. The South Carolina Supreme Court is, ask the Juror, are you a type one who thinks it is definitely always appropriate somebody commit a murder. Type two, the Juror gets the life penalty, it is always appropriate for somebody who commits a murder. Or type three, a Juror thinks life or death might be the appropriate penalty for somebody convicted of murder. They have never cited this form and said this is the correct standard. That has never happened. This form fundamentally misstates the law. And it would be an error to give it to a Juror and or read it to a Juror in this format and it would deprive Mr. Jones of his right to a fair and impartial jury and the Sixth Amendment.
THE COURT: Isn't that one very similar, the standard form, very similar to the one used in Blackwell?
BOYD YOUNG: Yes, sir. It was very similar to the one that was used in Blackwell. The Blackwell Supreme Court never addressed the Defense's objection to the use of in Blackwell, it wasn't raised on appeal. The only Juror issue raised in Blackwell was a Juror who we had alleged was a burden shift. But, yes sir, no doubt that the, Donnie Myers, the Eleventh Circuit Solicitor's Office has prepared a form, they labeled it as standard form number two and they have sent it out to all Prosecutors saying, hey, use this, you will be more like the Eleventh Circuit and you will get death verdicts. If you get this form to jurors it educates jurors who have feelings that would otherwise disqualify them where they pick that the death penalty is the most appropriate punishment for somebody that has been convicted of murder, it educates them to not saying it and hiding what their true feelings are and they hide behind the form. And it deprives the Defendant of a fair jury.
RICK HUBBARD: Your Honor, this has been argued all the way back to 1985, State versus Robert South. That case was tried in this courtroom, it was a death penalty case, 1985. They dealt with this issue on the three types of jurors. I am going to read a quote from that case. During voir dire the trial Judge asked each perspective Juror whether they would, A. Always vote for the death penalty; B. Always vote for life imprisonment; or C. Vote for either depending on the evidence. Appellate claims this inquiry improperly steered the jurors. This contention is without merit. That is exactly what our questioning asked, exactly what we have in South. Judge, this issue has been debated going back all the way to 1985. That is where that form came from and there may be some variations but it is that always language. Because ultimately you are looking at a Juror will always be against the death penalty so that person just can't possibly sit because by saying that they are not going to listen to the evidence.
If they are always for the death penalty it won't matter what mitigating evidence there is. That is what it means, we want somebody, you know what, I will keep an open mind, I will listen to both types of evidence before making a decision and I can believe either one will be appropriate depending on the evidence. That is how it has always been done. That is what it says in Self. The language cited in South is a far cry from what they have handed up as their standard form number two where they say the type of Juror who thinks that the death penalty is required. There is a type of Juror who once the crime of murder has been proved by the State and the jurors consider the punishment feels that he or she is required to give the death penalty in each and every case. This Juror simply feels that once the murder has been committed the death penalty is the most appropriate punishment no matter the circumstances of the case. Actually here is what we turned over to Your Honor.
Type one is the type of Juror who, once the crime of murder has been proved by the State and the jurors considering punishment feels that he or she is required to give the death penalty in each case and in every case. This Juror simply feels that once murder has been committed the death penalty is the most appropriate punishment no matter what the circumstances of the case. It is exactly what we are saying. It is not because the law requires, that is what they feel. Type two, a Juror is one who, although guilt of the Defendant has been determined under circumstances, under no circumstances could they ever give the death penalty. This Juror would not need to hear what the facts and circumstances and aggravation or mitigation in this particular case were because the Juror would have his or her mind made up concerning the punishment no matter what he or she heard. That is exactly what you are looking at. Those two types of jurors come in and they are either going to believe death is always appropriate in a murder, particularly if it is aggravated or death is never appropriate, life is the only sentence. That is all we are asking. But it is always, just like it says in South, always. That is the only way I know to clearly differentiate the types of jurors we are trying to keep off the jury. And so that is consistent with State v. South.
THE COURT: I am going to call it the, one the State has presented, I am comfortable with that, Mr. Young. What part of it other than you want me to adopt Court's exhibit 64 which I don't believe gives enough explanation as the State's standard exhibit number 2. Whatever that is called, I don't think, I don't know that we have it marked anywhere. Can we print and make it a Court's exhibit 65.
BOYD YOUNG: If the State wants to, yes sir.
THE COURT: I think you want to because you are comparing it against, it is what the State is proposing.
BOYD YOUNG: I would like what the Defense proposed.
THE COURT: I know that. But if I say no then I want to make the record what you are arguing against. Don't I?
BOYD YOUNG: Yes, sir.
THE COURT: Okay. Can we make the State's because I am not aware that it is in the record as a Court's exhibit, it is the one that Solicitor Hubbard has been reading from. I have it in an email, it has been given to me and reviewed but I am not sure it is a part of the Court's exhibit record marked as an exhibit, as this is what we are going to hand out. I don't think we ever got that.
RICK HUBBARD: We will be happy to do that, I can have it printed out.
THE COURT: Have it printed out and be marked as exhibit 65, Court's.
COURT REPORTER: That would be 66.
THE COURT: What is 65.
COURT REPORTER: The witness list.
THE COURT: Oh, I was unaware of that. It will be marked as the next subsequent--
COURT REPORTER: No, the witness list is, anyway it will be 66 coming up.
THE COURT: Okay, fair enough. (Whereupon, Court's Exhibit 66 was marked for identification only.)
THE COURT: Let's move on to the next issue and you can answer my question in a moment. I am, I don't want to call it the standard three question, three types of Juror questions but the marked one is what I am going to call it.
BOYD YOUNG: Okay.
THE COURT: All right.