2.Juror Qualification Challenges and Reconsideration
104 linesTHE COURT: Okay, all right. So let's go through any jurors that, Solicitor, you mentioned something about some jurors.
RICK HUBBARD: Yes, sir.
THE COURT: And I think Mr. Young had one also.
RICK HUBBARD: Your Honor, there were two jurors in particular I wanted to address. I will begin with, Alvira, he was the man who had a hard time speaking with Your Honor, Spanish was his first language.
THE COURT: I remember, Porta Rico.
RICK HUBBARD: Yes, sir. And, Your Honor, when you asked him what type he was he really struggled, he kept talking about opportunity. He finally, basically said three because hearing everything but he was troubled. I got up and questioned him, he made clear what he was talking about. He said, if you give life or death you could deprive somebody of opportunity to change and he told his life story. I had been on drugs, I didn't go to rehab but I turned my life around, had kids, I have opportunity. So I asked him, I said, so a life sentence would even be too hard for you. He said, yes, because it denies somebody of opportunity. So here we are in a Capital case and even life, number two would even be too strong for him. That second category. I asked about that. Absolutely denies somebody of opportunity. When the Defense got up and they asked him about that, they said, well, you know, there are things he can do in prison. He goes, all right, maybe limited opportunity for life.
But when I clarified as to death he said only two people should have authority. Only two sources of authority should dictate whether somebody lives or dies. One is God Almighty and the other is the individual's himself, he chooses to take his own life. Otherwise no one has a right or authority to take a human life. I think that makes him patently unqualified. Your Honor, both as to life and death. And I think the issue Your Honor struggled with was just getting him to explain what he was talking about. And, Your Honor, it took a while but I think he is just absolutely unqualified. And even looking at the totality of his questions and answers he is unqualified. And, Your Honor, I would just like that on the record. Obviously the State has as much of a right to a fair trial as the Defense. Anyone who got on the jury like that could not do their job. He said the only job he could do was on the first phase because he doesn't punish at that point. But he does not feel he can punish somebody if the only alternatives are life and death. So I would move to have him struck, Your Honor, based on his questions. And it was late in the day, Your Honor, we had done an awful lot. But, Your Honor, I just ask you to reconsider that.
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, you heard all of those arguments at the time of the qualification, you determined he was qualified. Your Honor had not asked to hear additional arguments after ruling. I think continuing to argue after the Court has ruled is improper. And I understand they have protected their record, Your Honor as made the appropriate rulings with regard to Mr. Alvira. I mean, there is a number of jurors who I don't like their responses either. And, Mr. Johnson said at the end of voir dire, you know, what, he really might be a type one. I am not trying to reargue the rulings made by the Court as to Juror qualifications.
RICK HUBBARD: Your Honor, this one is just, it is not that he, it just hurts me, I think he is patently unqualified based on his responses. You had no other Juror that was even fell into the realm of this gentleman, none.
THE COURT: All right. Who else have you got. He is one of the one's that I have, I understand, I remember him questioning, I remember him very vividly. Who else you got. I am going to sit on that a minute.
RICK HUBBARD: I have got another one, Your Honor, a lady by the name of Desiree Jordan. Your Honor had several jurors, particularly as we went on you asked about photos and could you do it and you had a number of them that said they would certainly try. But Your Honor saw how emotional they were, Your Honor started setting them aside. Ms. Jordan was early on in the process, I think she was the 12th one on the list for us and for Your Honor. She was, basically made a comment, this would traumatize her for the rest of her life if she had to do this. And she was particularly concerned about what she was going to be hearing, the graphic nature of it all. She was very hesitant on the penalties but, Your Honor, the main sticking point with her was the graphic nature of things. I also noticed, Your Honor, she turned 65 tomorrow. I think if you gave her the option, would you assert your right to not sit I think she would assert it, Your Honor. I also think if she had come up later in the process Your Honor, based on her answers because no one else said I would be traumatized for the rest of my life. Yes, if you look in the eyes of several people, the school teacher for instance who got teary eyed. This woman was early in that process. She had the white hair, if you remember her and said she would be traumatized for the rest of her life. And I just put that out there because she will literally be 65 tomorrow based on what I see in her DL. And I think if she were offered that opportunity since the trial will actually start Wednesday or tomorrow, I guess, with openings, I think she could assert that privilege and be excused in this case. I think she at least needs that opportunity to be asked that.
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, once again Your Honor has ruled. She wasn't 65 when she was qualified. She is here today, she is not 65 today. We are picking the jury today. I know the State doesn't like her. The State thinks that she is not a vote for death and they are trying to stack the pool for death. And I get that but that is not how this process works. People make objections to qualification at the time. Your Honor ruled, we don't have the benefit of transcripts and not objecting to that. I think the State has mischaracterized a number of responses for both Juror number 10, Mr. Alvira and Juror number 226, Ms. Jordan, that they were both appropriately qualified by the Court.
THE COURT: All right.
RICK HUBBARD: One follow-up, Your Honor.
THE COURT: What is going to stop her when we start the trial, I am 65 and I choose not to serve and walk away. I don't know that I could stop that.
BOYD YOUNG: You can, the exception didn't exist at the time when they were qualified.
THE COURT: If she says, I am 65 and I am choosing not to serve. What am I going to say, stay or else.
BOYD YOUNG: Yes.
THE COURT: I don't think so.
BOYD YOUNG: Absolutely, that was at the time they were qualified.
THE COURT: I don't think so. If she says, I am claiming to leave that is her, not me. I agree with you, I would encourage her but I think she can walk out.
BOYD YOUNG: It would be no different than a Juror who came in and said, I, you know, I moved during the trial. Well, you were a Lexington County resident at the time.
THE COURT: She was born in '55 so she turns 64.
RICK HUBBARD: We have her at 64 now.
THE COURT: 55 plus 64 in 2019 would make her 64 tomorrow. Still, I don't think she could walk out so I disagree with you on that. And if she says I am 65 and see you later I wouldn't fight her. So, I am not going to make somebody do that when they have a statute saying so I believe she is a year short.
RICK HUBBARD: We had her as one year older apparently.
THE COURT: Anybody else, Solicitor, from your side.
RICK HUBBARD: Those are the two that were a most concern, Your Honor.
THE COURT: All right.
CASEY SECOR: May I, Your Honor.
THE COURT: Yes, there were some jurors that y'all had concerns with.
CASEY SECOR: Yes, sir.
THE COURT: Of similar like the way the Solicitor's side has been doing.
CASEY SECOR: I am not rearguing. It is new information we have discovered since voir dire, Your Honor.
THE COURT: Okay.
CASEY SECOR: Juror number 444, Philip Turner who is the Youth Minister in Columbia, First Baptist Church. His jury questionnaire, question number 29 asked, have you, your spouse or a close personal friend ever been investigated, charged with or convicted of a criminal offense. And Mr. Turner answered that question, no. However in 2017 a juvenile sued Columbia First Baptist for sexual abuse by a Youth Group Leader at the church. And in the suit Mr. Turner is named as a Defendant in addition to the alleged perpetrator of a child sexual abuse. Ultimately the case was settled by First Baptist, they acknowledged the abuse and paid the victim $300,000.00 dollars. And the media article about the case say that law enforcement investigated the case and worked with Columbia First Baptist to try to prevent future episodes of child sexual abuse in the church. It doesn't seem possible to me that Mr. Turner is not subject to a criminal investigation of Columbia First Baptist given that he was a named Defendant in a civil suit and the fact that the media articles indicate that law enforcement worked with various members of the church to try to prevent situations like this occurring in the future. Mr. Turner was a direct supervisor of the perpetrator of the child sexual abuse, was put in very close proximity to the target of the investigation.
THE COURT: So it wasn't him?
CASEY SECOR: I am sorry?
THE COURT: It wasn't him?
CASEY SECOR: No, sir. But law enforcement investigated it and he was a named Defendant and in the civil suit it says that Mr. Turner knew of or should have known of the sexual abuse of the minor and failed to alert authorities or doing anything to protect the child. And it seems to me that the possibility that he was not questioned in the course of the law enforcement investigation seems apocryphal at best. May I approach with the articles, Your Honor?
THE COURT: Sure.
CASEY SECOR: We would just ask that that be made a Court's exhibit.
THE COURT: Sure.
COURT REPORTER: That will be number 76. (Whereupon, Court's Exhibit 76 was marked for identification only.)
CASEY SECOR: Your Honor, I don't mean to interrupt. I just wanted to state that the remedy we are seeking is that Juror 444, Mr. Philip Turner be struck for cause for answering untruthfully on the jury questionnaire.
THE COURT: You are talking about question number 29, you think his response is misleading?
CASEY SECOR: I do, sir. The question is, whether you have ever been, you or a spouse or close personal friends have been investigated for a charge with or convicted of a crime. The key word being, investigated. The church was investigated for child sexual abuse but the target of the investigated being McCraw who is directly supervised by Mr. Turner.
RICK HUBBARD: Your Honor, just the way I am reading it, it says investigated for or charged with, investigated for, charged with or convicted of a criminal offense. My reading what they gave me, they were looking at other folks who had worked there. He is a named Defendant in a civil case. He was never personally investigated from what I am seeing. So I don't think it is untruthful if that is the basis.
CASEY SECOR: He was investigated by the Richland County Sheriff's Department. The Institution of the Church was investigated by Richland County Sheriff's Department. They instituted changes within the church to try to prevent this thing from going forward. McCraw was the target, meaning he was the person suspected of the CSC with a minor. Mr. Turner was his direct supervisor at the church and he was accused of having known about it and having not done anything about it. And, again, the chances that he wasn't part of the investigation seems absolutely impossible to me.
RICK HUBBARD: This says, you investigated. And if Your Honor wants to follow-up with questions, it is whatever Your Honor thinks. But I don't see him personally being investigated.
THE COURT: Here is what I would like to do. I think we speak with all three of them, back under oath back on the witness stand, give them all three another short voir dire. I think that is the way I want to resolve all three of the issues. All right. Any anybody else, I don't know who else downstairs on the third floor saying something has come up with me personally, unreasonable hardship on my family or my personal, something. I am anticipating somebody show up with some of those issues too and we will do those the same way.
BOYD YOUNG: Your Honor, we object to an additional inquiry as to Juror number 226 and Juror number 10. Given the Court's ruling we would ask the Court to review and require as to Juror number 174 who, in our response, my recollection of his responses was if proven guilty, boom, death. Juror number 221, Mr. Garrett Johnson who at the end of voir dire indicated that he was type one Juror. He should be reevaluated and disqualified. Juror number 302, Mr. David Murphy, gave responses that he was automatic death penalty Juror. Juror number 411 got--
THE COURT: Are you going to read off everybody?
BOYD YOUNG: No, sir. Just the ones I want to--
THE COURT: Y'all named three, now y'all are naming off everybody.
BOYD YOUNG: They have two that they want to re-voir dire and the Court said we are going to call them back up in here and I am, they are going to continue argument after the Court's ruled and the Court is going to let them reargue--
THE COURT: You are arguing with me. It is what I am doing going to be fair to both sides?
BOYD YOUNG: No, sir.
THE COURT: It is not?
BOYD YOUNG: No, sir.
THE COURT: I don't like that, I take that personally. I mean, I am trying my best. Y'all are bringing up issues, I think that is a fair way to resolve it. And now you are going into everybody that has answered a type one lean, you are going to bring them back in and do the same thing.
BOYD YOUNG: Well, Mr. Johnson said he was a type one. Mr. Hall proven guilty, boom, death. Your Honor found them qualified. I thought, my understanding is that I am not allowed to reargue Your Honor's ruling unless Your Honor says, hey, I have had some more time with this, I would like to talk about it some more which is fine. Your Honor is perfectly able to do that. But that is not what has happened. And if the State wants to bring up all the life jurors and re-question them and try to get them disqualified again then we should be able to bring up all the death penalty jurors and re-question them and see if we can get them disqualified.
THE COURT: I think what they brought up are three particular or two particular and y'all brought up a third thing or jurors who struggled, particularly number 10, the Hispanic gentleman, Alvira. He struggled with his questions, answering them and part of them was a language issue. But, I mean you don't think it is fair and go back and talk to him again?
BOYD YOUNG: No, sir.
THE COURT: Okay. I kind of think it is, respectfully.
BOYD YOUNG: I mean, Your Honor ruled that there wasn't a language barrier and that was part of the Court's ruling.
THE COURT: And I can rethink that one. That one has troubled me more than any of them is him, has troubled me personally. I thought about him since, I have not just cast him aside from my mind. So I can reconsider my rulings, can't I?
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: I would ask that you reconsider your rulings as to 174 and 221, Your Honor.
THE COURT: But you listed off a whole bunch of others.
BOYD YOUNG: I listed up two others, yes sir.
RICK HUBBARD: Your Honor, I think your proposal was fine. Just, it is ultimately, is Your Honor satisfied. I can come up with a list of folks I would love to question a little bit more and that I have issues with as well.
BOYD YOUNG: He has.
RICK HUBBARD: When we, when we first started this process, Your Honor was still trying to find where the ditches were, to keep us out of them. And so Your Honor gave a lot of latitude on questions. Initially you started tightening down on some of those questions, a lot of them were absolutely misleading and that is why you tightened on them as we got going on. And so that is why we objected, I remember Mr. Hall took all afternoon, and we just got that one Juror. So I think your proposal is fine, I think I have a good faith basis, for bringing forth the two that I have had based on their responses for you to reconsider. And that is it, Judge.
THE COURT: And I think the Defense has a good faith basis of the questions of Mr. Turner. I think that--
BOYD YOUNG: That is new information, Your Honor. I mean, that is not something that we had available to question him about at the time.
THE COURT: Okay.
BOYD YOUNG: Now, as far as Mr. Hall and Mr. Johnson go, those were the first two jurors qualified. The standards were different and if anybody should be re-questioned should be those two.
RICK HUBBARD: They have got the benefit of going into questions, I think misleading questions, our whole argument the entire time we went through this process was casting doubt on otherwise qualified people by the nature of their questions. The way they were, the big loaded questions where they blurred first and second phase. All of those issues, Your Honor, that we raised and Your Honor finally clamped down on that, as you got a feel on how they were doing and how people were responding. So they got the benefit of that on those first two.
THE COURT: I mean, there is no question the first several, four or five got extensively more questions, step out and back and forth. It was a lot slower process with them and the findings of the questions. It definitely was there. Anything else?
BOYD YOUNG: Your Honor, my position would be allow the State to bring back in jurors that they feel are life leaning and re-voir dire them, kept them to additional voir dire amounts to organizing a tribunal uncommonly willing to convict and sentence to death. It is a violation of Mr. Jones Sixth and Fourteenth Amendment rights of due process and a fair trial and should not be permitted. And it is a violation of Rule 18 where the State continues to argue after rulings, in an effort to get the Court to change your mind.
THE COURT: All right. I am going to think about it for a minute. I am going to see what jurors show up. Y'all got anything else you need to address. We can stand at ease.
BOYD YOUNG: We have additional motions, it is my understanding we need to address those this afternoon.
THE COURT: There was, I think you had a leftover motion and I think the State, something about a statement, the parts that were going to be redacted need to be addressed this afternoon too. I don't know what motion you have got but I thought there were two or three motions that we need to address this afternoon.
BOYD YOUNG: And the only thing that is left unresolved, I believe, would be the State's motion for a shuffle.
THE COURT: Y'all still want to be heard on that?
RICK HUBBARD: No, sir.
THE COURT: Okay. What motion you have got so I can entertain where you are coming from before lunch time.
BOYD YOUNG: This is a motion filed on behalf of Tim Jones, Sr.; July Jones, Jackie Jones, Travis Jones and Tyler Jones and Roberta Thornsberry. But primarily Tim Jones, Sr.
THE COURT: Who are those folks you just named off?
BOYD YOUNG: The victims family members, also Mr. Jones, Jr. family members.
THE COURT: I am not sure I understand that. It seems like it is the State's job to represent, communicate with the victims.
RICK HUBBARD: It is and, Your Honor, these are not my victims. So we have communicated with the family to the extent they are willing to communicate with us. Your Honor, heard Mr. Tim Jones, Sr., he is dormant. He has been very kind to us, we have been kind to him. But, Your Honor, his situation, my victims are five dead babies.
THE COURT: What about, you mentioned a motion, I don't remember the numbers, Mr. Young, it was 100, 101, 102, I don't commit the motions to number memory. What were those that were left that I haven't ruled on. I thought that was something else we were going to do this afternoon.
BOYD YOUNG: I believe Mr. Madsen had the, motion in response to the State's, what was titled as the State's Lyle motion.
SUZANNE MAYES: Our motion was in response to a motion they made months ago that we provide them with notice of anything that we might potentially use that would be prior wrong, not just talking about, character evidence in the sentencing phase, et cetera. We responded to their request for information and in that motion we advised them that would be consider character evidence particularly in the sentencing phase that we foresee offering. That is what that motion was, a response to their motion. As to the actual guilt phase in this case, what we foresee coming in is evidence of the drug use and we have hashed this out repeatedly. But the drug use isn't limited to just while he was on the run from law enforcement. It is going, date back to around May of 2014 which we consider to be res gestae evidence of this crime because it relates to his mental state, the same mental state that all of the Defense experts are going to be testifying to. So it is the drug use that we foresee as a prior wrong, it is not 404(b) evidence, it is all res gestae in this offense.
THE COURT: If we need to be heard on that we will but I thought y'all had more or less, Ms. Mayes gave an accurate summary, y'all understood that is kind of where it was going to fall in each portion of the case. So, Mr. Madsen, if she is incorrect--
ROBERT MADSEN: Judge, what I want to make sure, is they have filed this is 404(b), which as Your Honor knows, they have listed down there propensity. Propensity is no where in 404(b) specifically in the first phase of the trial. Additionally in response to our motion they just kind of, extremely broad. In other words, we think that there might be things that they want to bring in front of the Court that would not meet a clear and convincing standard. And in fact there were a few items that law enforcement themselves had investigated and did not believe that there was sufficient probable cause to bring any charges. Well, certainly if law enforcement is out there or DSS is out there and do not think that it meets their burden of proof how in the world are they going to bring it in under a clear and convincing. But our motion was to make specific anything. Your Honor can see the motions. I mean, it just basically says that an adult or a juvenile subsequent prior to testimony describing discovery material, there is nothing in there that is specific. How are we suppose to answer it. Obviously the Court is going to have to make a determination on whether it meets that clear and convincing threshold, when it is so broad how can the Court do that, how can we answer that. Now, you know, that is the basis for our motion.
THE COURT: Well, let's put that on the record just after lunch or just after we get through doing this jury selection. Ms. Frick, are they here?
COURT CLERK: They are all here, Your Honor. The Clerk is doing the roll call.
THE COURT: Let's just stand at ease for a few minutes.
(Whereupon, a short break was taken.)