5.Batson Challenge to Peremptory Strikes
17 linesBOYD YOUNG: Your Honor, the Defense may challenge under Batson for the State exercising all five of the preemptory strikes during the main panel and the ones, additional strikes they used as preemptory strike against women.
THE COURT: Mr. Jennings is a woman?
BOYD YOUNG: No, he is not, Your Honor. I apologize, the State used four out of the six strikes that they used against women, I apologize.
THE COURT: Okay. All right, Solicitor.
RICK HUBBARD: Yes sir, Your Honor. I am going through our notes, sir. Your Honor, as to Mr. Jennings. Go ahead and start with him. Obviously we did strike a male, a white male. He was the one, if he were Governor for a day would do away with the death penalty. He is the one if Governor for a day would do away with the death penalty and then when I questioned him he said, oh, well, it is the law now. So he was very equivocal. That is why we struck him. Ms. Jordan who I mentioned this morning. Repeatedly talked about she did not want to do this, I don't want to do it because I don't want to experience that. She is the one I raised earlier, Your Honor. Obviously she said she would try to be fair but she made a comment about this haunting her for the rest of her life, something to that effect. That is why we struck her. As to 179, Tonya Harmon. She was the one that said she makes her mind real quick and then she doesn't need to talk to anyone else. I intend to make my decision and I usually stick by it.
Basically I don't tend to be persuaded. We can see her in the jury room sitting in a corner, not conversing, not talking. She has reached her opinion when she walked in there. Your Honor, we want jurors that would deliberate, share their thoughts. Most importantly listen to everyone else, to reevaluate their own position to see if they are, in fact, holding a position they think they hold. We believe we are entitled to that. So we struck her. Ms. Washington, she is the only African American we struck and I will note that Your Honor realizes that we presented. We are fine with 241, also an African American; 247, also an African American, both male and female. But as for Ms. Washington, you remember she is the one, she worked at SCDC. She worked in this violent wing. When asked about the death penalty she said, we have got to forgive one another and you have got to forgive yourself. Had nothing to do and completely unresponsive to the question of death penalty.
So her first thought was on death, to forgive. That is why we even questioned whether she was even qualified to serve as a Juror. So 226, Desiree Jordan and 457, Dinah Washington, we thought were very questionable if they even qualified to sit based on their responses. So we struck them. Again, Tonya Harmon who we struck, that is because she struck us as someone who would dig her heels. That leaves 249. I am looking at my notes, Judge. Your Honor, her responses were, on the death penalty were what I would say is weak. She had never thought about it before. She answered their question that she would lean to life. And the only limited circumstances she would see death to be applicable would be someone like a Pee Wee Gaskins who was a known serial killer in South Carolina. That was the only answer she could give. We think she would be a very weak Juror and we have an absolute right to strike somebody we think would not give fair consideration for both verdicts, life and death because the State deserves a fair trial too. That was the basis for that, Your Honor. And I will note that there are other females that are still on. Tiffany Kent, Jessica Miller. Tiffany Kent is 231; Jessica Miller is 293; Toshi Addison is 241, African American Female; Judy Nixon is 314; Toni Clark is number 96. All females, all on the jury. We believe we satisfied, Your Honor.
THE COURT: Mr. Young, let me hear you again.
BOYD YOUNG: Your Honor, looking through the jurors, I believe that the State's reasons to go in for their, exercise their strikes against women are pretextual in that Juror number 272, Jeremy Mason, is a man who gave very similar responses specifically with regard to which death penalty is appropriate, serial killers or mass murderers, while they said they struck a woman whose responses were Pee Wee Gaskins. He said he wouldn't shed a tear if the death penalty was gone. Their response to a number of jurors was that, that they wouldn't have the death penalty if they were Governor. We believe a similarly situated Juror not struck by the State and upon his responses we argue that the State's offered reasons were pretextual.
THE COURT: Solicitor.
RICK HUBBARD: Your Honor, obviously out of all of this I get five strikes so I have to choose, we do have to make some strategic decisions. But, Your Honor, there is nothing pretextual about this. It is who you think would be a fair Juror. And, Your Honor, that is the call we made, not based on sex, not based on race. But we made that call on who we thought would be best appropriate to listen to both sides. What Mr. Mason also does, he works for a defense firm, he is more familiar with the law. Much more interactive on questioning, think he would be a Juror that back there in the jury room would talk, would speak. The big thing was is he wanted to hear what they had presented as well. And, Your Honor, we think he would be receptive to what we have to show. So we did not have that same confidence on those that we struck.
THE COURT: All right. Ms. Jordan, I understand the reasons for that. She was very hesitant or not fully certain whether the graphic nature, testimony would impact here. That is not pretextual in nature. Ms. Harmon, if I remember her right, she is the one that, I don't know what word the Court would use, but kind of called out the lawyers of re-asking the same questions so many times and was very firm, confident in the chair. She said something like, I take my oath very seriously and the graphic testimony will be tough. But she more or less challenged the lawyers to keep re-asking the same question and I have answered the same way each time. She had a personality about herself. I don't find that pretextual either. Ms. Washington, if I remember her. She is the one that worked formerly at the Department of Corrections. Yes. And I find those reasons, excusing her because she was a former employee at the Department of Corrections would not be pretextual. Ms. Lindler, tell those reasons again.
RICK HUBBARD: Ms. Lindler was, she was an older female, very meek.
THE COURT: I remember her, petite lady.
RICK HUBBARD: Yes, sir. And she was very, it was hard to draw her out, she was very less interactive, less thoughtful, said she had not ever thought about the death penalty before. Your Honor, just, obviously when Your Honor talked about the graphic nature of the case too, that seemed to be a concern to her. And she was much more hesitant on the stand with questions. Your Honor, that just caused us concern. Obviously we want somebody back there that can absorb everything because what we have got is graphic. And we just weren't sure that she was the person that can go back there and do that job faithfully.
THE COURT: I remember her now.
RICK HUBBARD: Your Honor, just so you know, for the record too, we presented a number of other females, we presented 164, Amy Girardeau, they struck her. Tracy Wehr, we presented, they struck her. Terrie Hanley, we presented, they struck her.
THE COURT: I think the State has provided a reasonable basis for exercising the strikes on those and the reasons given are not pretextual in nature. You have got limited strikes. I deny the motion to restrike the jury based upon a Batson violation. What else, Mr. Young?
BOYD YOUNG: That is it, Your Honor.