4.Ruling on Social-History Proffer
97 linesTHE COURT: All right. You've proffered the social history. You're getting into her rearing him, which is slightly different, correct?
CASEY SECOR: I mean, I would argue it was part of the social history. But in terms of her history --
THE COURT: Correct.
CASEY SECOR: Yes, sir.
THE COURT: That's what I was getting at. How -- how is the stillborn birth in the house, the hospital, how is that relevant to anything regarding this young man? I mean, it happened. Why do we need to present that? What does that really show to prove -- what relevant fact does that prove in this case?
CASEY SECOR: It is the time around which Cynthia Turner, Tim's biological mother, is breaking psychologically.
THE COURT: So what? I agree. Why is that important here?
CASEY SECOR: Because I would argue that the proof of the -- of her harming herself or her child is evidence of her mental illness and one of the strongest pieces of evidence of her mental illness.
THE COURT: I still don't understand why that type of testimony would be needed in this trial to prove his mental condition. I mean, he's not involved in it.
CASEY SECOR: No, but it's his biological mother. This is an inheritable condition we're talking about and he was present in the home at the time.
THE COURT: He was two years old. I don't see how that's relevant to this issue. I understand it was a lot going on in that house.
CASEY SECOR: Yes, sir.
THE COURT: That incident doesn't seem to be relevant to these facts.
CASEY SECOR: I mean, respectfully -- and I don't mean to go back and forth. Respectfully, our argument would be that schizophrenia is a condition that is a consequence of genetics as well as environment. This would be the environmental factor to his being raised in a home where people are performing abortions on themselves on children that are almost full term.
THE COURT: No. You're not going to say that. It's something going on and this witness, Ms. Thornsberry, was very concerned about it, but I don't think that's relevant to here. I think that confuses and adds factors and facts that aren't relevant to making a determination on this issue here. Ms. -- I can't think of her married name, Cynthia's married name, it is a given factor that she has severe mental illness and is institutionalized.
CASEY SECOR: Yes, sir.
THE COURT: No one has challenged that at all. All the physicians have taken it as a given. She has not mild, not moderate, but she is institutionalized. There's no question. I don't think the State has challenged that at all.
CASEY SECOR: Yes, sir.
THE COURT: So that description of the incident in the bathroom to me seems quite not needed on the relevance issue of mental condition of Mr. Jones. I don't say it cannot be taken into account by the medical providers, I mean, obviously, I hope they did.
CASEY SECOR: Yes, sir.
THE COURT: I don't want that withheld and I don't think it was. Why does the jury need to hear it?
CASEY SECOR: Hang on a minute. May I take a moment? Your Honor, Dr. Bigler just testified to it -- to the importance of environment to the brain development of a child. I specifically remember Dr. Agharkar talking about the first three years of life being absolutely crucial to the development of the human brain. And, obviously --
THE COURT: All right. Well, you can get Cynthia was neglectful, was unpredictable, came and went, snuck out the house, was a handful for Ms. Thornsberry to deal with trying to take care of Tim, absolutely. But that incident in the bathroom has nothing to do with her being those things. I mean, it's just another factor.
CASEY SECOR: And I respectfully disagree and believe that it is profoundly indicative of both genetic problems and environmental factors. I don't mean to continue to argue with the Court. If the Court is ordering me to not present it, I, of course, will comply.
THE COURT: I don't want that presented.
CASEY SECOR: And I just ask for time to be able to present a cohesive argument so that I can properly preserve the record on that.
THE COURT: You've got a good proffer. Joy is taking it down. On that issue, that one little window of time of the incident in the bathroom I do not believe is relevant or necessary to show Cynthia -- what's Cynthia's name? I keep calling -- I want to call her Jones. It's not Jones anymore. Cynthia what?
CASEY SECOR: Turner.
THE COURT: Cynthia Turner. Ms. Turner will be the Defendant's, Mr. Jones, Jr.'s biological mother?
CASEY SECOR: Yes, sir.
THE COURT: This lady testified that she was unpredictable, that she was crazy as a bed bug, that she was coming and going from the house. She would take Tim off for days at the time where they couldn't find her. They would track her down and find her. She was doing all sorts of stuff. That is a huge amount of evidence in relevance to her condition without the bathroom incident. I don't think that's preventing you from showing that she was -- had many challenges. That incident does not help the determination of that, I don't believe, for this jury.
CASEY SECOR: Yes, sir.
THE COURT: All right.
CASEY SECOR: May I just -- I just -- I respectfully object to the Court's ruling regarding not being allowed to present evidence of Cynthia's abortion of her child, William. And I would object under the due process clause of both the United States Constitution and the South Carolina Constitution. I believe that it violates Mr. Jones right to a fair trial and an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution. And I would specifically object pursuant to Bobbie Lee Holmes versus South Carolina, the right to present a defense. And I believe that this is an integral and important part of our defense and I object to not being able to present it. Thank you.
THE COURT: The record is protected. Now, as far as the other way it was presented, the proffer, Mr. Graham, let me hear you on that. Because you haven't said a word yet. I, obviously, addressed one particular factor the Court has concerns with. What other concerns would the State object to the way it was presented?
SHAWN GRAHAM: The ones that we discussed at side bar, Your Honor, was the witness' testimony regarding the incidents that happened to her regarding rape and incest. It's not probative to the issue we're here for today. It doesn't have relevance and it's prejudicial to the fact that it's trying to cause sympathy for this witness and also for the Defendant, but it's not relevant. It has nothing to do with his environment, inflammatory. It happened before he was -- it has nothing to do with the environment that he was in. If they want to talk about specific -- I mean, I didn't hear anything that they're trying to say that she, the witness, did not do a good job raising the Defendant.
THE COURT: Well, I kind of stopped them from saying when Tim had birthday parties. They were getting more of his young life when I stopped them.
SHAWN GRAHAM: My point would be is when things happen to you, you can either deal with it or you can be a victim in life. But regardless, how she chose to deal with those events that happened to her, in the relationship with the Defendant, the actions, the way she treated him, the things that she did with him, those are relevant to this case. Anything about her personal background is not. It serves no purpose other than to inflame the jury. No doctor relies on -- there's no expert who's going to say that it's important to me that this witness was raped multiple times and had incest. Nobody is going to say that has anything to do with this case.
THE COURT: Mr. Secor.
CASEY SECOR: Regarding relevance, Your Honor, this is the part of the case where the Defense presents evidence to support our affirmative defense of not guilty by reason of insanity. So in the context of this proceeding, relevance is any evidence tending to make any aspect of NGRI more or less likely than it would be without the evidence.
THE COURT: Her being raped was evidence of what?
CASEY SECOR: The environmental factors and biological factors that Timothy came from. The suggestion that a person can experience trauma and just choose to not be a victim and choose it to not have an effect on them is in direct contradiction with brain science. That would mean when people come back from war with PTSD, we'd just say oh, shake it off, man. You'll be fine. But that doesn't work because they have traumatic memories that are ingrained in their brains that they couldn't forget no matter how hard they tried. And it affects their interactions with their loved ones. That's why we hear horrible stories about people coming back from war and they have difficulties with their marriages when they come back. Sometimes they even get arrested, sometimes they kill family members. I mean, it's horrific. And I'm not trying to excuse it, but we know why. We know why, you know, some football players have a tendency to abuse their girlfriends because they've got brain damage --
THE COURT: Everything you said, I agree with. I don't think her childhood is relevant to his childhood.
CASEY SECOR: And I'm not trying to argue with the Court, but I would think that you think that your grandparents lives are relevant to you. I mean, I would assume that there's things about you that you see from your grandparents that you are proud of and they're a part of you, you know. I know that I see that in myself. A lot of the things I see in myself from my grandparents that I don't like. I wish I could get rid of, but, unfortunately, they made me, you know. There's not much I can do about it now. But I think that Tim's history, his life history, his social history, his family history, these experts have taken into consideration --
THE COURT: They have, I mean, that's where you keep saying that they have. How is her saying at -- I was left at an orphanage at age three, my mother came back and got me at age eight. How is that relevant to -- it is her life. It is a history of Tim, Jr.'s life, but how is it relevant to his mental condition in 2014 when all that stuff happened before he was born, so it had nothing to do with his environment? It had to do with her environment, but not Tim, Jr.'s environment in 1980 -- it was about '80 when he was born, I guess.
CASEY SECOR: '81.
THE COURT: '81?
CASEY SECOR: Yes, sir.
THE COURT: I mean, this happened in the early 50's, 1962 maybe, '63?
CASEY SECOR: '64, Big Tim was born.
THE COURT: All right. Tim was born in '81, why does something that happened in the 1960's to her relevant to what happened in '81 and post? I understand she could say I as -- I married the same man twice. It's been chaotic. But her being put off in an orphanage does not impact Tim's mental condition in 1981. Does it?
CASEY SECOR: Yes, I believe it does, Your Honor. I believe it does because Ms. Thornsberry tried very hard and was -- loved and loves Tim deeply, but she understands that there are times that he went through things when he was in her care that were not good for him. And we just talked about the police coming to the house because they're fighting, gunshots.
THE COURT: I agree, but that's got nothing to do with what happened in the 50's. So why bring up what happened in the 50's if there was trouble in the 80's? Why is that relevant?
CASEY SECOR: Because I think that if Ms. Thornsberry hadn't experienced those things in her youth, I think that her later life would not have been as chaotic. I think the chaos that occurs during Tim's life is a consequence of the chaos that occurred in Ms. Thornsberry's life.
THE COURT: She can describe the chaos in Tim's life, she can, without saying I was put off in an orphanage at age three.
CASEY SECOR: But I think the reason why it's so important for me to explain is because I don't -- I am not trying to blame Ms. Thornsberry for anything. And I think it's important for the jury to understand the reason why Ms. Thornsberry had problems with alcohol and with violence and with relationships is because she was betrayed by the people who were supposed to protect her as a child. She was abandoned by people who were supposed to take care of her. And as a consequence, despite the fact that she has made tremendous strides from her own parents to where she is now and the fact that she's still alive is remarkable after all she's been through, but her credibility comes from the fact that she made it through that. But she still had faults and failures as a consequence of things that happened to her that were not her fault. And I think the jury is entitled to know the full story so that they can judge Ms. Thornsberry as somebody who was struggling and trying very hard, but was struggling as a consequence of things that were not her fault and were -- she was traumatized by people earlier in life. And that's a theme in this family, a tragic and horrific theme in this family. And the jury, in order to assess whether or not Mr. Jones was mentally ill, not guilty by reason of insanity, guilty but mentally ill at the time of this horrible tragedy, they need to know these themes that have gone through this family.
THE COURT: All right. I don't find it relevant anything that happened before he was born is a tragedy to him. It's tragic to the family, I give you that. It's not a tragedy to Tim Jones, Jr. So why would testimony -- other than for the medical providers, why would this jury need to hear something that happened to Tim, Jr. if Tim, Jr. wasn't there? 20 years before Tim, Jr., 30 years before Tim, Jr., certainly, that's family history and medical providers can get that history. Whether it be physical, like we're talking about and all that, get the medical history, get the psychological history. They did -- I know they did. Y'all have not led me to believe they didn't. Why is an event that is 30 prior to Tim Jones, Jr. being born -- now, you can ask her, did you have -- come from a broken home, sure, but family history of mental illness is not being challenged. I don't think that's a question of fact. I think y'all have gone over it a lot.
CASEY SECOR: I would just say in response to that, Your Honor -- and again, if you want me to stop talking, I will.
THE COURT: No, I want to hear just a little more.
CASEY SECOR: I would respectfully say to Your Honor that the standard for relevance and for admissibility, of which I know Your Honor is aware, but it's not whether or not it's being challenged, that's -- you know, just because something is admissible doesn't mean --
THE COURT: It's relevant --
CASEY SECOR: Yeah, just because they're not challenging it doesn't mean I shouldn't bring it in. And I think that -- I would be surprised if there's anybody in this courtroom who heard what Ms. Thornsberry just testified to who doesn't think to themselves that sounds like an awful lot of horrible things to happen inside her family.
THE COURT: To her.
CASEY SECOR: To her and the whole family. And I think that people -- I think that, generally speaking, we as human beings, we have that sense of thinking the apple doesn't fall far from the tree. And once you look at the whole tree and you look at the apples that are on the ground, you can see well, now, I know why that apple is rotten because I see a lot of other rotten apples on the tree. And I don't mean that to be disrespectful to Ms. Thornsberry. It's an analogy. And so when you look at the tree -- and sort of going back to what Mr. Madsen said in opening, you look at the tree and you look at the whole root system and you look at the soil. And when you find that those things are poisoned or rotten, then it explains that the fruit that's falling from the tree and the condition that it's in when it falls. That sounds sort of silly and simple, but it feels like the best way I can explain it.
THE COURT: Okay. Let me hear from Mr. Graham.
SHAWN GRAHAM: Your Honor, my suggestion would be what happened to her was horrible. The jury doesn't need to hear it. If they want to talk about where genetically he comes from, why she might have behaved the way that she did during her childhood, I thought we were going to talk about her diagnosis. To me -- what I know is that gave me something saying she's diagnosed with depression, I believe bipolar and then self-reported for schizophrenia. If that's what they've got and that's what they can prove, then why don't they ask her if she has those conditions and when she was diagnosed with them? But to go back and explain events -- I mean, those questions weren't even offered and I thought that's what we were going to talk about. Your Honor understands where I'm coming from.
CASEY SECOR: The only thing I would add, Your Honor, is that -- can I -- I know this is difficult for everybody. Nobody has ever been in one of these cases and I know Your Honor is doing everything he can to make things move along and we are, too. I would just say that this is a unique situation. This is a situation where the Defense has a burden of proof. It's not a situation where we are just trying to defect the evidence that's being presented by the State. We have an affirmative burden of proof at this stage in the trial. And I don't feel that we can do that effectively without presenting the family history and social history, which involves and includes members of Timmy's family and events that occurred prior to even his birth. I understand -- my assumption is the Court disagrees with me on that, but I feel like I needed to put that on the record. And I do think that the social history has been used by the State in response to some of our witnesses and so I think their use of it in crossing or attacking our witnesses is evidence that social history is very relevant.
THE COURT: All right. Here's what my ruling is. I don't find to be relevant Ms. Thornsberry's childhood and social history to her current diagnosis, whether it's diagnosed by a physician or self-diagnosed. I think she can testify to her current and/or former physical and emotional condition. I do not believe it's relevant to prove the affirmative defense that Ms. Thornsberry's childhood of being raised in an orphanage or being assaulted by her stepfather and having Tim, Sr. at age 12 is probative toward Tim's current or former condition. All of that can be utilized by the experts in whichever field of psychology or psychiatry in their presentment of their opinions. I think Ms. Thornsberry's testimony as to the behavior of Ms. Turner is relevant to Tim's upbringing. I think she can testify that Turner was a handful and unpredictable and had emotional issues. I do not believe that it's relevant that there was an episode in the bathroom with another child. Now, she can say I had a troubled youth. I think that's as far as she needs to go for purposes of this trial. I don't think her social history is relevant to the issue whether Tim is -- on that night -- that's what we're getting at, one night, one event versus a family history of mental illness. That's the difference, I guess. So that's where I'd like to limit the Defense's presentation of Ms. Thornsberry's involvement with Tim, Jr. Do you understand my ruling?
CASEY SECOR: I just -- I need to ask some questions to make sure I do. I guess the Court's order is that I begin at the time of Tim, Jr.'s birth, is that correct?
THE COURT: Yes, sir. Now, you can ask her about her medical history to what extent you want, but not tell me everything that happened to you as a youngster and that's how you got that medical history. I mean, y'all showed some medical history, y'all were exchanging it, I didn't review it. But am I wrong, you didn't get that far. She had been treated for, by physicians over the years for different issues. I think that's relevant for you, that she's -- you know, has -- she was a caregiver, so she would have been challenged. Y'all did proffer that, so I'm guessing -- I think her social history behind Tim, Jr.'s birth is not relevant to the jury's determination of his mental condition in 2014.
CASEY SECOR: May I briefly state my objection?
THE COURT: Yes, sir. Thank you for your patience.
CASEY SECOR: I appreciate you allowing me to make the record, I do. Your Honor, I would argue that Ms. Thornsberry's social history, family history and history of trauma to her throughout her life is specifically relevant to the issue of not guilty by reason of insanity. The Defense has a burden in this case to present evidence of that. And our evidence -- the one primary factor in our evidence is Tim's diagnosis of schizophrenia, which has been described by experts as being a consequence of genetics and environmental factors. I would argue that the environmental factors experienced by Ms. Thornsberry are environmental factors that flow through families as being abandonment, neglect and violence and mistreatment of children and, therefore, becomes relevant to the environmental factors affecting Tim's condition from birth forward. But, also, the genetic predisposition that he was born with. The environmental factors that he grew up around were affected by the environmental factors that Ms.
Thornsberry experienced. And I would argue that the Court limiting us from presenting this evidence violates Mr. Jones' right to due process under the Fifth and Fourteenth Amendments of the United States Constitution, Article 1, Section 314 of the South Carolina Constitution, also, his right to a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution, Article 1, Section 14 of the South Carolina Constitution. I would also argue that his violation of the heightened reliability and the prohibition against cruel and unusual punishment under the Eighth Amendment of the United States Constitution, Article 1, Section 15 of the South Carolina Constitution. And I would cite Bobby Lee Holmes vs. South Carolina as the case that stands for the proposition the Defense is entitled to present a full and complete defense. And if I may just check with Mr. Young. Mr. Young just ask that I respectfully ask that the Court adopt the same argument regarding the video of Cynthia Turner.
THE COURT: Yes, absolutely. It is very, very -- my analysis and reasoning and your objection to the video now being shown and the proffer on Ms. Thornsberry's testimony, in my opinion, is basically the same issue. So yes, you're protected on both with that argument. Absolutely. I don't see any problem with that at all.
CASEY SECOR: And I know we've had a slow morning, I'm not blaming anybody for that, but I am going to need some time to regroup about my questioning of Ms. Thornsberry.
THE COURT: All right. You want to go to lunch until 1:15?
CASEY SECOR: That would suit me.
THE COURT: Is that enough time? The jury is going to a buffet, so I've got them pretty well covered. It may be 1:30. They're going to a buffet where the food's ready and they're going to serve themselves and be able to sit down and eat.
RICK HUBBARD: That will be fine. Judge, just so you know, there is a jury book one of the jurors left --
THE COURT: I'll get the SLED team to come pick it up.
RICK HUBBARD: Yes, sir. We're fine however you want to do it.
CASEY SECOR: May I ask for one--
THE COURT: -- sure.
SHAWN GRAHAM: The only other thing, Your Honor, is I saw a bunch of exhibits being premarked, so we probably would want to have time to review those.
COURT REPORTER: And, Judge, that's Defendant's 138, which is the flash drive, and then 139 through 164, which are photos.
THE COURT: These exhibits that were premarked, Mr. Young, are they his or yours?
COURT REPORTER: They're Secor's, Mr. Secor's.
THE COURT: Tell the jury to go to lunch. And I want this book, there's one Juror, take it back to them.
(WHEREUPON, the jury was excused for a lunch break.)
(Whereupon, a lunch break was taken.)
BOYD YOUNG: Your Honor, with consent of the State, we have Defense Exhibit number 165 through 211. These are the photographs of the items identified by my investigator and gone through on the stand yesterday that we will substitute for the record for the actual items.
RICK HUBBARD: The State concurs, Judge. I went through them all and we're fine.
THE COURT: Are they in or just ID?
RICK HUBBARD: I'm fine if they're in, that's fine. (WHEREUPON, Defendant's Exhibit numbers 165 through 211 were admitted into evidence.)
THE COURT: Bring the jury in. (Whereupon, the jury came into open court at approximately 1:40 p.m.)
THE COURT: Call your witness.
CASEY SECOR: Your Honor, the defense calls Roberta Thornsberry.