1.Jury Selection
1,123 linesApril 30, 2019.
THE COURT: How is everybody today?
RICK HUBBARD: Pretty good, Judge.
THE COURT: Sorry for my tardiness. I have been back working trying to get some sort of colloquy to give to the jurors. And it is a moving target.
BOYD YOUNG: You can just use the one I gave.
THE COURT: I like the way I write better.
BOYD YOUNG: All right.
THE COURT: Now, I understand that I made a suggestion of types of different jurors and y'all reviewed it and then my Law Clerk and y'all hammered out pretty close to an agreement except for maybe the last sentence. Is that fair?
BOYD YOUNG: That is fair.
THE COURT: Mr. Young, would you like to be heard on the last sentence before we go further?
BOYD YOUNG: Your Honor, the last sentence and I don't know what the version is but something can consider either punishment based on the facts, circumstances presented.
THE COURT: During the, depending on facts presented.
BOYD YOUNG: No facts are required for a Juror to return a life sentence, it is any reason or no reason at all. If you just end it without the last sentence, it says, this Juror can give life or death after a conviction for aggravated murder, period. If you say, depending on the facts presented you are putting a burden on the defense that doesn't exist in the law and that could be misinterpreted by the jurors.
RICK HUBBARD: Judge, I believe should always listen to the facts, should always base a decision on the facts. And as far as their right and authority to give a verdict of life for no reason at all, I don't have any problem with the Defense wants to ask each and every one of them that, no problem at all. In fact, I might say you don't even have to have a reason if you want to give life, you can give him life for no reason at, whatsoever if you think that is appropriate where a father has killed five children.
THE COURT: I agree with you on the instructions of the law that is not required. I like the way I have got this written because what I am asking is, depending on the facts of the case and listen to everything, that is what I am trying to convey, not as a burden on the Defense to prove this or prove that. It is not a specific instruction, it is more of a general comment, there is facts presented in the trial and depending on those is what I will make my decision--
BOYD YOUNG: But it is coming from Your Honor and Your Honor is certainly the authority figure for the jurors. And if they say, depending on the facts presented, that puts in the juror's mind that there is some kind of requirement on the Defense and it doesn't add anything--
THE COURT: I don't read it that way, I read it exactly opposite. It says, y'all are going to consider facts presented, mostly by the State.
BOYD YOUNG: The Court understands my opinion to do the right thing and our objection to it.
THE COURT: And we will make it the next Court's exhibit, what is our next Court's exhibit.
COURT REPORTER: It will be 66.
BOYD YOUNG: Your Honor, can we cite Illinois versus Morgan for the proposition that extra language in there should be removed.
THE COURT: You are so protected. And that is exhibit 64 for your record that I am using, your argument is relevant and related to, 66. 66 is the questionnaire, I mean the three types of jurors.
BOYD YOUNG: Yes, sir. (Whereupon, Court's Exhibit 66 was marked for identification only.)
THE COURT: Y'all have agreed on the witness list combined.
RICK HUBBARD: We, it was hard for us, we never gave them a witness list so we weren't sure what was combined so we ended up doing a list, just taking the header off. I figured that would be a little better, easier way to do it.
THE COURT: Which one is it.
RICK HUBBARD: I think you will have two lists but they will probably bleed into one another.
THE COURT: You want to use both of them?
RICK HUBBARD: Sure. We do have one other thing before we start. The Defense have these boards, I absolutely object to using of this stuff. Judge, whatever lists are read need to come from you, needs to be to your language. I think it is going to be time consuming. And, Judge, this is like closing argument, we are going to be in here for a long time as opposed to a good five, ten minutes, hey, can you do this job or not. They don't need to see the indictments, they don't need to see pictures of victims, how does that determine whether they would be a fair Juror considering mitigation and aggravating circumstances. This chart with options in the flow of the case doesn't have not guilty. I don't believe it is accurate.
BOYD YOUNG: I thought you said not guilty and not guilty by reason of insanity were the same thing.
THE COURT: No, you said that.
RICK HUBBARD: I think sentencing principles, Judge, it needs to come from you.
THE COURT: How do you intend to use this if you are allowed to use it?
RICK HUBBARD: It is highly prejudicial.
BOYD YOUNG: It is not prejudicial to me. The indictments with the pictures of them are to ask the jurors about publicity. A lot of jurors, when we asked their names may not recognize the case but will recognize the pictures. These are the pictures that have run across the State newspaper, WIS, Channel 19 and Fox and the internet since 2014. The sentencing principle is the principles that we go through with every Juror, those are the same principles that we went through with all the jurors in Blackwell, that is the law, it is an accurate statement of the law. We need to make sure that each Juror is able to understand what the principle of law is that applies to sentencing and can follow it. The not is all the defenses that the State wanted listed. Murder is not self-defense, murder is not defense of others, murder is not heat of passion, murder is not duress, murder is not somebody who is insane, murder is not somebody who is intellectually disabled, who is so drunk or high they couldn't form an intent, it is not an accident, it is not the wrong guy. Murder is an intent of the killing of an innocent victim with malice aforethought. When we talk about the death penalty for somebody who has been convicted of murder plus aggravation this is what we are talking about. We are not talking about homicide.
RICK HUBBARD: You don't talk about pretrial publicity by showing more pictures, so if they haven't seen them you are showing them now. So, all right, ladies and gentlemen, I want to know if you have been corrupted by pretrial publicity. So by the way, here is some. Secondly, these are pictures of the victims, the minute they see that this case gets reversed. Even if it stands because the Defense says, well, we agreed to it, it is going to be a PCR. Guilt phase you cannot bring pictures in unless there is evidence to support the pictures of the children, the victims. This chart, highly misleading and convoluted and my gosh, are we going through a flowchart and doesn't even have not guilty. Indictment, it is a notice document. Why in the world do you want an indictment, you read the indictments, you published them. There is no reason they need to go through these again. It is because it has a formal Solicitor's name at the bottom, sentencing principles. I contest a number of these just the way it is written. Individual moral decision, not a group factual decision. Fine but you go on, it is almost like you are staking them out to be, look, hold your own verdict against the crowd. This one, drunk or high, that is not a defense. That is absolutely inaccurate. Drunk or high, there is going to be drugs in this case. Judge, it is all misleading. We are going to pull the case right out of the gate.
THE COURT: How, in the other cases did y'all have boards like this, showing jurors as they were being questioned or did you just ask the questions that deal with these topics, so to speak?
BOYD YOUNG: I have done it both ways, Judge.
RICK HUBBARD: I would assert that we do it the way that it hasn't been done. In the 29 years I have been practicing we have never done this. All we are doing is not educating a jury under Poindexter. That is not the goal of voir dire, it is simply to determine, can they consider evidence, can they consider aggravating and mitigating circumstances, they can give either life or death. This is misleading, it is trying to educate the jury to their position. I think it is also trying to inflame the jury and, Judge, frankly is poison right before we get started.
THE COURT: I am uncomfortable with this, I am uncomfortable with you asking questions that you are suggesting that you are going to ask, most of them. But having this sit down here.
BOYD YOUNG: It just saves times.
THE COURT: I don't know that it saves time or slows us down. How does it save time when you have to go pick up, have you seen this child, have you seen this, pretrial publicity--
BOYD YOUNG: No, I just say, here is the picture of the kids and the indictment. Does that refresh your recollection about recalling any publicity. If not that is great, let's move on. Surely the State has refreshed people's recollections by showing them, hey, you said you didn't remember this. Well, here is this.
RICK HUBBARD: Why would I want to refresh their memory on something I am asking to set aside. So they base their opinion here in the courtroom--
BOYD YOUNG: Because you don't want to wait until they are in the jury box, oh, you know what. Now I remember and then they said, oh, Judge, I told you I didn't know anything, now I do.
THE COURT: Here is what I think would be proper. If somebody came in and says, you know, I think I have seen publicity but I can't remember what they look like, recall their names, there was five children. That is probably the common response you are going to get is, I remember five children, the flash on the news was not up there very long so you don't commit to memory because they are just five children, young, in age they are younger children. That is going to be the gist of many of the answers of the pretrial publicity but can you identify that is, Gabriel, I don't think they need to do that.
BOYD YOUNG: They don't.
RICK HUBBARD: Judge, I don't think they need the picture at all. I think the picture itself is going to be problematic. I think it will be reversible right out of the gate. I do.
BOYD YOUNG: Appellate defense is sitting right there and I am telling you it is not reversible. It is a tactual, strategic, whatever decision I need to make. You understand, the State can't appeal.
THE COURT: I understand.
BOYD YOUNG: And for them to say, well, you have got to protect yourself, protect yourself. The Solicitor talks about in my 29 years I have never done it. His reversal rate is over sixty percent on all of his Capital cases.
RICK HUBBARD: Most of which are PCR's which what I am trying to prevent.
BOYD YOUNG: My reversal rate is zero.
RICK HUBBARD: Most of our cases were reversed by PCR. Here is the thing, you can say it is strategy to try to inflame a particular Juror to say they can't be fair. That is what this is. That is not genuine strategy.
BOYD YOUNG: It is not strategy. If a Juror says, sir, you know what, I can't be fair. That is their honest opinion, it is not like I tricked them into saying, I can't make a Juror say I can't be fair. The Juror would already have that--
THE COURT: I don't like the indictments and photos, I don't think that is fair.
BOYD YOUNG: We can do the photos by themselves on a blank board.
THE COURT: I don't, I mean, I think it depends on the answers that the jurors give you. But to say you have heard pretrial publicity, seen pretrial publicity and they say yes. And what have you seen, would that affect your ability. Somebody is connected close enough that would know the name of these children is not going to be qualified as a Juror because they are too close. These are five children that appeared in the news. I don't see how seeing their picture is refreshing their memory as to exactly which child was which.
BOYD YOUNG: I am not doing that, Judge, and I just think that there is a lot of people who wouldn't know the names when we read them. Here are the pictures that were on the news, does that refresh your recollection, do you remember seeing this. And if you say, no, that's fine, it is over, it is done, move on.
THE COURT: I don't think the indictments or photographs are necessary to do that.
RICK HUBBARD: And, Judge, I don't think you want to refresh their memory about something you are asking them to set aside. So if they don't have memory, great, they are exactly where you want them.
BOYD YOUNG: First you have to ask them what their memories are and by the, if they are in the jury box, by the time they say, oh, yeah, that is a problem.
THE COURT: Well most of the time you refresh someone's memory with something that they are familiar with or just have forgotten. There has never been a document created with an indictment with a picture until y'all created it. This is not something that refreshes anybody's memory. This is your creation.
BOYD YOUNG: Well, I put the pictures from the media on the corresponding indictment.
THE COURT: I don't like that. I think that is unfair, I think it creates issues that we have not even dreamt up, like unintended consequences. I don't like it. You can ask them if they have seen pretrial publicity, what was it, can you set that aside. You can ask them all of that but seeing pictures on indictments, that is not going to help. I don't see how that helps, I can see how it potentially hurts us getting a fair jury. So I don't like the indictments and photographs.
BOYD YOUNG: I am happy to take the photographs off the indictments, they come off.
RICK HUBBARD: The indictments would be improper as well. It is a notice document.
THE COURT: Yes, I don't see how picking a jury needs to include that.
BOYD YOUNG: I can just take these off and have the pictures on one and say these were the pictures in the media, does that refresh your recollection, do you remember seeing that. Yes, no.
THE COURT: Again, why, if the question is asked, have you seen pretrial publicity because about half the venire stood up and we took down their numbers and you asked those, have you seen pretrial publicity, yes, to what extent, whatever your follow-up question is. If they say, no, is that when you say, well, you didn't see these five children on the news media. I mean, how does it refresh, I don't understand how you are going to use it because if they say, yes, are you, you are going the wrong way with it.
BOYD YOUNG: Like here are the pictures, do you recall seeing them.
THE COURT: No, no. If they say, no, I haven't seen media then they have got no recollection. But if they say yes, do you recall seeing pictures of the kids on the news, they answer. If they say, no, what are you going to do. Well didn't the news media show you that.
BOYD YOUNG: No, I don't recall seeing it on the media. I then say, here are the pictures that were all over the news, does that refresh your recollection, do you remember seeing these. If they say, no,--
THE COURT: Then what about the problem Solicitor Hubbard says, now that we are talking about that can you set that aside, the publicity that you saw and now you have revisited it for a third time or fourth time.
BOYD YOUNG: The question about, can you set that aside is not the appropriate question. The question for Your Honor is, has it, have they formed a biased. Not like, oh, I can put that out of my mind, it is not a real thing. It is just, all right, now you have seen it, tell me what you thought, what did you feel, did you form an opinion, did you not form an opinion. What was your opinion and how strong was your opinion. Those are the questions that Your Honor needs to ask in order to determine whether or not the person should be excused.
RICK HUBBARD: Your Honor, Court's have always asked jurors, whatever you may have heard, may have heard, can you be fair and set that aside and base your opinion on what you hear here.
THE COURT: I said it a few times yesterday.
BOYD YOUNG: Morgan says that question is improper and that jurors always say yes to the question and it shouldn't be given any weight.
RICK HUBBARD: Obviously, that hopefully is what Your Honor is looking for, can they come in here and base their opinion on what they hear in the courtroom. Judge, I just object and I think it is problematic.
THE COURT: I mean, I see us asking these jurors that we are going to be discussing the deaths of these five kids, have they heard about it on the news media, is the discussion about that subject matter going to be difficult to you to hear, listen and apply the law as I instruct. The question of that sort. How are the pictures relevant of what has been shown to the media, how is that going to help me or hurt me to pick a fair jury.
BOYD YOUNG: Because may not remember the names, I mean may not, if when you just say, do you remember the Jones kids and they may say, no. If you show them the picture, oh, those are the Jones kids, yes.
RICK HUBBARD: Judge, here is the bottom line, they don't have to remember their names. They are going to get introduced to these kids slowly but surely in this trial. Every murder we try and most jurors that come in here they have never heard it. That doesn't mean that the victim or the Defendant isn't getting a fair trial. It is just, ensures that what decisions are made on what they hear right here. Why are we bringing in the outside that we have been working so hard to keep out and using that to qualify a jury.
THE COURT: I don't understand it either. I guess we can wait until we get there but the indictments with the pictures on it, I am not going to allow that but if you want to show pictures and a Juror answers a question that you think you need it I think then I can maybe make an opinion. But I don't see, I don't see how it is, I don't get it. I understand, I don't understand why you want to do that. Five children are five children, pretrial publicity.
RICK HUBBARD: Your Honor, I guess I am just concerned about, I just don't envision, what I don't want is, all right, I think it is necessary now, I have got to object in front of the jury and they are like, what is the Solicitor now wanting me to see. I don't want that. If I can just come out and ask it, if Your Honor can just say, we are not going to use this stuff and let's just go back to what we have been talking about since we have first initiated the conversation on voir dire. Let's do what is predominantly done, not just here in the Eleventh Circuit and do just a general voir dire and let's just get this going.
THE COURT: That is kind of what I was prepared for when I walked in and then I get all of this.
RICK HUBBARD: Your Honor, I just object to it and here is the problem. If Your Honor even leaves a crack in the door I am going to end up having to object in front of a Juror. It puts me in a very unfair position because then that Juror is going to be going, what is the Solicitor trying to hide. That might be the tactical or strategic motive behind this, that is fine. And I understand we are going to disagree on a lot of things but, Judge, that is unfair to the State.
BOYD YOUNG: The State doesn't get killed at the end of the trial.
RICK HUBBARD: Well, and the State didn't kill five babies. We just want a fair trial.
THE COURT: Solicitor, you said don't leave a crack in the door, I am going to leave a crack in the door. I don't know what circumstances, do you need to see these pictures so you can understand what we are talking about. I can't envision that somebody will say, oh, yeah, I am kind of familiar with it but they don't need to be shown the pictures. They are kind of familiar with it, that is enough. I mean, I don't understand where you are going to get in your questioning and I don't want to be the one doing it because I am not going to show the pictures. Don't put that on me because you want me to go into that. That is going to be y'all's doing.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: Can we do this to protect me. That if he thinks he has got a crack that he wants to exploit, can we stop but absolutely prohibit any of this stuff coming before a Juror before you rule.
THE COURT: That is what I was going to say. You beat me to the punch. When you think you need to use it, Judge, I want to put something on the record, a legal issue, we will get the Juror out and we will deal with it right then. I will say up or down. That is how I would like to handle it. The indictments, I can't fathom a reason, you would want to show that to a Juror. I have read it to them, it is a piece of paper, I don't understand that, the relevance of selecting a jury. And aren't these defenses and sentencing principles, aren't those part of the general instructions, summary, I am trying to give these jurors?
BOYD YOUNG: I hope so, yes sir.
RICK HUBBARD: And it should come from you but in your language because I have got a problem.
THE COURT: I do too, I mean I am not going to read from that because it looks, I was working on some stuff last night and this morning early and again when I got here. A lot of things are written the way I talk and the way I present things, not the way it is written in some of the instruction books. That is just not my style.
BOYD YOUNG: I understand.
RICK HUBBARD: And, Your Honor, here is a list of potential defenses and statutory mitigation in the extent to assist Your Honor.
THE COURT: Thank you.
RICK HUBBARD: And Your Honor may already have all of that which is fine.
BOYD YOUNG: I would object to most of the statutory mitigators. They are actually included in the defenses so you can't say they are defenses and then also mitigating. Because if they were found that would be not guilty.
THE COURT: Let's talk about my statement real quick. All right, y'all comment on this, I work off of another Judge's summary, a little briefer. This one has, this case has more facts. My comments would be, I will just hand them to you in writing, that will be easier and then I will comment on them then. Let me do that. I will send you a copy of this.
(Whereupon, a bench conference was held.)
THE COURT: Put this on the record, Joy. I am going to talk to the media while y'all are looking over that. Once we get into the voir dire selection, just talking to the audio/video folks, there is going to be no filming pictures of any of the potential jurors. You can listen in, take notes, do whatever but I don't want any actual recording of the questions and answers to be published. I don't want any photography of the potential jurors. If a Juror comes up and says, I have got something a little more sensitive, I may have a sidebar for that. But other than that you can listen, take notes, whatever you want to use but I am not going to allow filming of the jury and we discussed that I think at the meeting and we were clear on that. Is that consistent?
MR. MONCK: Will we be able to shoot a still photo for atmosphere.
THE COURT: Yes, as long as we don't get a Juror, sure, you can do that.
MR. MONCK: Thank you.
THE COURT: Is that consistent with our discussion at the sidebar?
RICK HUBBARD: Yes, sir.
THE COURT: Okay, we are good. (Whereupon, a bench conference was held with the media and the attorneys.)
THE COURT: Mr. Young, are you ready?
BOYD YOUNG: Yes.
THE COURT: Are you ready, Solicitor?
RICK HUBBARD: We are ready, ready to discuss.
BOYD YOUNG: Can we take five minutes.
THE COURT: Do y'all want to do that off the record or do you want to do it on the record?
RICK HUBBARD: We can do it in-chambers if you want or however you want to do it.
THE COURT: We will do it right there. I am going to step out, they asked for five minutes. We are down for five minutes. We will be kind of sitting at ease.
(Whereupon, a short break was taken.)
THE COURT: Let's make a record of this, just out of an abundance of caution I want to make a record of it. I handed out to both sides a rough draft of the summary of the law and facts. I am going to allow the State to comment and then the Defense to comment on it to see if we come up with a consensus. Mr. Graham, it is going to be you? You want to put it on the record or not?
RICK HUBBARD: It is up to you, Judge.
THE COURT: Y'all don't want it on the record?
BOYD YOUNG: Yes.
THE COURT: Okay.
BOYD YOUNG: Or we can go in-chambers and figure out where the real disagreement is.
THE COURT: Let's do that because I don't want to make this a Court's exhibit because it is a very rough draft. Let's go back in-chambers and discuss it and if we have got some big issues we will come back here and put those on the record. That suits me fine. (Whereupon, an in-chambers meeting was conducted to discuss questions for jurors.) (Whereupon, the panel of jurors were sent to lunch at 10:45 a.m. to 1:15 p.m.) (Whereupon, a lunch break was taken after in-chambers meeting.)
THE COURT: Solicitor, what have you got.
RICK HUBBARD: Your Honor, before we start, I want to make sure we start on the right foot. I see we have got boards up here again. Judge, I know we are going to second, I just don't want to be put in a position that the Defense uses one of these boards and I am objecting in front of a Juror. My understanding is no boards unless you at some point think it is okay.
THE COURT: That is my understanding, we had a sidebar, we did not put that on the record. That is kind of what we discussed. What is that, Mr. Young, do you know.
BOYD YOUNG: Let's say we could use the indictments with pictures on them, if it became necessary I could use the pictures. Of course, after telling the Court I was going to show the pictures these are the processes about how this case works. This is the chart that assists me in talking jurors through, here is where we have a trial for murder, guilty but mentally ill. We then get to consider statutory aggravating circumstances, you find not guilty or not guilty by reason of insanity you stop. If you find no statutory aggravating circumstances you stop. If they are found unanimously beyond a reasonable doubt you consider mitigating circumstances, other aggravating circumstances. Each Juror uses their individual moral judgment to what their appropriate punishment is and if it is twelve votes for life, it is life penalty. If it is twelve votes for death it is a death penalty. If it is not unanimous it is life--
THE COURT: Why have I spent all of this time working up that summary that y'all agreed to. That is what it was for, I am going through all of that without the benefit of a board.
BOYD YOUNG: I would love Your Honor to use the board and flow chart, it would go much quicker.
RICK HUBBARD: We will object to the board even if Your Honor used it because it is not correct. One, it only has, doesn't even have not guilty on there. Two, it gets into what we have been arguing against the whole time about what happens when one Juror wants to scuttle the entire process and say I am not going to vote for death and they get to single out that Juror and basically get that Juror to, basically control what the eleven other jurors are doing. It is improper. Judge, it is not needed, this is voir dire and as Poindexter says, this isn't about educating them, this is just seeing if they can be a fair Juror. This is teaching them the whole process. This is absolutely unappropriate.
BOYD YOUNG: I have to know that they can follow the law throughout the whole process.
THE COURT: I have to know that.
BOYD YOUNG: Yes sir, you have to know that.
THE COURT: I am hopeful that my summary of what I have written and drafted and y'all have commented on, y'all have edited, y'all have assisted me in editing is going to be sufficient to do that. I am not comfortable with that.
RICK HUBBARD: Judge, I have got the same objection with these.
THE COURT: Oh, no, I don't like those at all.
RICK HUBBARD: All right.
THE COURT: I have looked at those when I came down a little bit, I am not comfortable with that.
RICK HUBBARD: And then we have got the indictments again.
THE COURT: No, he had them over there, he brought them over to show me.
RICK HUBBARD: And then pictures of the children, my God--
THE COURT: We are still on the same as he is going to tell me if he wants to try to use the pictures, correct?
BOYD YOUNG: Yes, sir.
RICK HUBBARD: Judge, here is the problem. It would be easy if we could just make it through the first panel and see if it is even necessary. Just band it right now, just have ruling not now because, Judge, I can't even begin to fathom why showing them pretrial publicity and then saying, trying to cure them from it, we are throwing poison in the tank and then saying now we are going to take the poison out. I just, Judge, it just scuttles the process.
THE COURT: I don't want to use those boards, I think that is what my summary does and the questions that we have discussed at great length. Certainly if I were to use I would be asking for them but I don't think so, I don't think you are entitled to that.
BOYD YOUNG: So you are saying I am barred using the flow chart?
THE COURT: In the voir dire. You might want to use it later, I am not ruling whether you can or can't later.
BOYD YOUNG: I can't use it in voir dire.
THE COURT: I don't like that in voir dire, no sir.
BOYD YOUNG: And I can't go through murder is not and strip out the defenses.
THE COURT: No, I am going to give the defenses in the actual statutory language.
BOYD YOUNG: Okay. So I can't, so the ruling from the Court is and this, for the record, this is a board, it says, murder is not and then under the not it says self-defense, murder is not a defense of others, murder is not heat of passion, murder is not duress--
THE COURT: Yes. You want to make copies of them and make them a Court's exhibit for the purposes of the record you may.
BOYD YOUNG: I was just going to read it into the record.
THE COURT: Okay.
BOYD YOUNG: Murder is not insane, murder is not intellectually disabled, murder is not drunk or high, murder is not accident, murder is not mistake, murder is not wrong guy.
RICK HUBBARD: And, Your Honor, just on that, drunk or high, that is not a defense.
BOYD YOUNG: I understand that, Your Honor.
THE COURT: Well, and it doesn't say murder is not, it says not with big capital letters and underlined. Murder is not on the board at all.
BOYD YOUNG: Yes, sir. It is just to help me go through with jurors when we are talking about murder, what we are not talking about are these things.
THE COURT: I think I would rather talk about what we are talking about.
BOYD YOUNG: Sure. And I have a board entitled sentencing principles. These are all principles of law which we would ask the jurors about, to go through just to make sure they can understand it. It would be faster just to go through it with the board. I understand the Court is saying we can't use the board, it would be no jurors ever required to sentence someone to death. Number two--
THE COURT: I want a copy of that, I want to go through it, just make a copy of it. You are reading too fast and you are going to wear Joy down. Make a copy of it and put it in the record as an exhibit and your record is protected.
BOYD YOUNG: Sure.
THE COURT: All three of them.
RICK HUBBARD: Judge, just so I know so that I am not jumping up and be like a bad guy in front of a Juror, frankly that is often strategy as well. And I don't want to be in that position because I cannot fathom a reason you would show five children who were murdered or killed.
THE COURT: He is not going to show the pictures unless he gives me, Judge, I am at the legal issue and then we excuse the Juror. That is when he has got to do it. I assume, Mr. Young, you will be the one doing the voir dire.
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: Your Honor, if I may, just make a record real quick on the voir dire restrictions. The Sixth and Fourteenth Amendments of the United States Constitution guarantee a Capital Defendant the right to a fair trial, the panel of impartial and indifferent jurors under Morgan versus Illinois, 504 US 719; Ross versus Oklahoma, 487 US 81; Duncan versus Louisiana, 391 US 145; Turner versus Louisiana, 397 US 466; Irvin versus Dowd, 366 US 717. In Capital cases the right to, embraces the right to an impartial jury drawn from a venire that has not been tilted in favor of Capital punishment under Uttecht versus Brown, 551 US 1. Citing Witherspoon versus Illinois, 391 US 510. The essential demands in fairness require that criminal Defendants be given the opportunity to assure themselves of the right through voir dire directed to uncover a biased. Aldridge versus United States, 283 US 308. Holding summarily dismissing Defense Counsel's request for supplemental voir dire on an issue of biased.
The trial Court violated the Defendant's right to due process. Voir dire plays a critical function in assuring the criminal Defendant that his Sixth Amendment right to an impartial jury will be honored. Rosales-Lopez versus United States, 451 US 182. The issue of a fair and impartial jury becomes most grave when the issue is life or death. Aldridge, 283 US at 314. Capital Defendants have a greater, not a lessor right than others to insure themselves of a fair and impartial jury. See Turner versus Murray, 476 US 28. Holding that Capital Defendants have a constitutional right to explore the issue of racial biased even in the absence of such a right when lessor penalties are at stake. The Supreme Court of South Carolina has repeatedly held that Capital Defendant is entitled to a trial before a panel of jurors whose ability to protect, interpret and apply the law will not be affected by their personal opinions about the death penalty. See State v. George, 323 SC 496. State v. Davis, 309 SC 326. In order to comply with the Sixth, Eighth and Fourteenth amendments the Defendant must be allowed to ask questions intended to root out biased, to insure that the jury panel is not uncommonly willing to condemn a man to die. Witherspoon versus Illnois, 391 US 510. Thank you, Your Honor.
THE COURT: Anything else?
BOYD YOUNG: No, sir.
THE COURT: Do y'all mind, any of the attorneys, if I stay up here more comfortable or come down there more comfortable. I am not certain exactly where I want to speak to these jurors, it may be here. Do y'all care?
BOYD YOUNG: No, sir.
RICK HUBBARD: No, sir.
THE COURT: All right. The first Juror is 97. (Whereupon, Juror number 97, Robert Cody, came into the courtroom and was sworn.)
COURT CLERK: State your name and spell your last name.
JUROR: Robert Cody. R-O-B-E-R-T C-O-D-Y. EXAMINATION BY THE COURT
By The Court:
THE COURT: Mr. Cody, sorry for the delay. My name is Eugene Griffith, I am the presiding Judge in this case. Now, the purpose of bringing you in this afternoon is to remind you you are under oath. When we left yesterday I gave y'all instructions on not to communicate with anybody, not do independent research. So I ask you today, you are under oath at this hearing as a prospective Juror. And I remind you I am looking for truthful answers, there is no right or wrong answers, just truthful answers. Now, has anyone attempted to contact you about this case in any way?
JUROR: No.
THE COURT: Have you contacted anyone or spoke to anybody about this case since I have given you my instruction?
JUROR: I only mentioned to my parents that I was coming here today, that is the only people.
THE COURT: And I noticed from your questionnaire you are only 19?
JUROR: I am 20 now.
THE COURT: Okay, fair enough. I don't remember whether you were one of the one's that stood up and said you had seen any of the media reports?
JUROR: I didn't.
THE COURT: You have not?
JUROR: No, sir.
THE COURT: Have you done any independent research about the facts or circumstances of this case?
JUROR: No, sir.
THE COURT: Now, are you married?
JUROR: No, sir.
THE COURT: Now, you or any member of your immediate family a member of any organization which advocates for victims rights such as like MADD, SADD, CAVE, Troopers Association, Sheriffs Association?
JUROR: No.
THE COURT: Now, before you came in I sent two documents to you, I believe, a list of potential witnesses, rather lengthy. Did you look for that list?
JUROR: Yes, sir.
THE COURT: Now, the Court requires, the Court rules requires that any potential witnesses that may be called have to be placed on a list by the parties who call witnesses. And so it is not necessary they are going to call those but potentially they could be called. Did you recognize these names on that witness list?
JUROR: No, sir.
THE COURT: Are you related by blood or marriage, to your knowledge, to any of those witnesses?
JUROR: No, sir.
THE COURT: Are you connected to any of those witnesses in any way whatsoever whether it be a church connection or a social connection, professional, business relationship?
JUROR: No, sir.
THE COURT: No connection whatsoever?
JUROR: No, sir.
THE COURT: I think I asked you if you were connected with any of the lawyers in any fashion?
JUROR: Yes, you did but no, I am not.
THE COURT: Are you connected to the Jones' family in any way?
JUROR: No, sir.
THE COURT: Now, as I told you, we are looking for truthful answers, not right or wrong. But I want to explain to you some generalities on how the case is going to be, how it is going to proceed and give you, basically an outline of kind of what to expect if you are selected as a potential Juror. In this case Mr. Jones is charged with five counts of murder. In South Carolina is defined as the killing of another person with malice aforethought. And malice is defined as a person with a wickedness, a depraved heart, intent on wrongdoing, hatred, ill-will or hostility. Now the definition of murder excludes any just cause or excuse for the killing. When the State alleges the offense of murder combined with certain aggravating circumstances, in those cases the State can seek the death penalty. Now, before and during a trial, throughout the entire trial, a person accused is always presumed innocent of each and every element of the crime which he is accused of. Mr. Jones is presumed innocent.
Now the State must prove each and every element of the crime charged to a standard of proof called beyond a reasonable doubt. Now in most criminal cases the Court, the Judge makes a determination on what punishment is given if a person is convicted during a trial. In a death penalty case it is slightly different. A jury determines the punishment and so I want to discuss that with you a little bit. So in a Capital case such as this the trial is divided into two parts potentially. There is the guilt or innocent phase and then, if necessary, the punishment phase. In the first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. And so if a jury finds an accused person guilty of murder it is only then that the trial would proceed to the second phase.
In the second phase if the State proves an aggravating circumstance beyond a reasonable doubt then a jury can consider any aggravating and mitigating evidence in deciding what punishment, either life without the possibility of parole or the death penalty. Now, our law in South Carolina does not allow the State to seek the death penalty if a person is convicted solely of the murder. The State must prove an aggravating factor and the State must prove at least one statutory, the statute is the books right here of the laws handed down by the General Assembly, those are called statutes. Statutory aggravating factors are listed in those books under the particular code section I am referring to. And the State must prove one of those factors beyond a reasonable doubt. Now I am telling you, even if the State proves murder and an aggravating circumstance jurors are required to consider any mitigating evidence or circumstances. Okay.
Jurors must also consider any mitigating facts that would support a sentence other than death even if there are not mitigating circumstances shown, jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to life without parole sentence then a sentence of life without the possibility of parole will be imposed. Now in this case the State has indicted Mr. Jones of five counts of murder and is notified him that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity. In this case you may hear testimony and evidence showing many different things. There is a wide variety of testimony that may be presented to you in this trial.
Now, I will at the appropriate time instruct you as to how to consider and evaluate that testimony and that evidence and whether the testimony be defined as the evidence of an aggravating factor, evidence of mitigation which will be possibly a reason to vote for a sentence of life without parole, evidence of any defenses, even evidence of affirmative defenses such as an accident, guilty but mentally ill and not guilty by reason of insanity. Now, until the testimony and evidence is presented during the trial, I am not able yet to tell you the exact instruction of the law I am going to give you. But can you accept the oath to meaningfully consider all the testimony and all the evidence which is presented to you and apply it to the law as I will give you at the end of the trial and consider all this evidence consistent with my instructions. Can you do that?
JUROR: Yes.
THE COURT: Now, because of the plea in this case, it creates for the jury on the first issue of guilt or innocence four potential verdict forms, meaning four potential verdicts. There is a potential verdict of guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Now, if evidence is present, can you give all the evidence meaningful consideration and apply the law as I am instructing it to you then and reach any one of these verdicts. Can you consider all four of those potential verdicts?
JUROR: Yes.
THE COURT: Now, the statutes I have referred to over here, they also provide a list of potential defenses persons have in crimes. Potential defenses in criminal cases include identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense by habitation, entrapment, duress and alibi. Now, if any such evidence is presented about these defenses, presented in the case during the trial, can you give those and that testimony meaningful consideration and apply the law as I am instructing it to you as to how to weigh and consider that evidence?
JUROR: Yes.
THE COURT: Now there is also mitigating factors which I mentioned earlier and the statutes, again, provide a list of mitigating factors. Potential testimony can go into mitigating factors such as a Defendant has no significant history of prior criminal convictions, conviction of violence against other people, the murder was committed while the Defendant was under the influence of mental or emotional disturbance, the victim was a participant in the Defendant's conduct, the Defendant was an accomplice in the murder committed by another person, the Defendant acted under duress or under the domination of another, the capacity of the Defendant to appreciate his criminality of his conduct or to conform his conduct to the requirements of South Carolina law was substantially impaired, the age or mentality of the Defendant at the time of the crime, the Defendant was provoked by the victim committing the murder, the Defendant was below the age of 18 as a defense, the Defendant had mental retardation at the time of the crime. Now, if any such evidence of any of these defenses, I am sorry, mitigating factors are presented during the case can you give each of those meaningful consideration and also apply the law as required and instructed by the Court?
JUROR: Yes.
THE COURT: Now, before you came in also there was given to you a summary that I drafted up regarding the type of jurors who are normally, general categories people fall into. Did you review that sheet?
JUROR: Yes, sir.
THE COURT: Now, you see type one, did you read that?
JUROR: Yes.
THE COURT: And type two, did you read that?
JUROR: Yes, sir.
THE COURT: And type three, did you understand that?
JUROR: Yes, sir.
THE COURT: The explanation. You have an idea what type of Juror you would be?
JUROR: I have never been on jury duty before but probably type three.
THE COURT: Okay. And do you understand that the case may be lengthy, do you have any other personal plans, travel, to be gone for a while, anything like that over your upcoming several weeks of schedule that you know of?
JUROR: I start school in, on the 1st of May.
THE COURT: What school do you go to?
JUROR: Midlands Tech.
THE COURT: Midlands Tech, what are you taking?
JUROR: What kind of classes?
THE COURT: Yes?
JUROR: Computer, information system technology.
THE COURT: Computer technology related?
JUROR: Yes, sir.
THE COURT: The lawyers will have an opportunity to ask you some questions. I want to be certain, you are my first Juror.
THE COURT: Are there any other questions that we discussed that the Court should add.
BOYD YOUNG: No, Your Honor, I think there is a couple matters of law that we would like to take up with Your Honor before I start questioning.
THE COURT: Okay. You are the first Juror, the legal issues of discussing the questions, we are making a record that Ms. Holston is taking down so I need to put a couple of more things on the record. You haven't done anything wrong. Okay. You step out and we will have you right back in here.
(Whereupon, the Juror was excused from open court.)
BOYD YOUNG: Is there a place for them to go?
THE COURT: I don't know. This is the first one, I don't know.
BOYD YOUNG: The Prosecution has a lot of stuff on the table, have the Juror walk passed it.
THE COURT: Again, Ms. Comer and I discussed briefly what she was going to try to do. And I have been dealing with y'all so kind of left that to her. So we can do it differently on the second one. That was not my intent.
BOYD YOUNG: Is there a place right outside the door right there where they can go.
THE COURT: We can put them right there at the corner of the glass door.
BOYD YOUNG: Sure.
THE COURT: Sure, I can do that.
BOYD YOUNG: All right. I don't know which order Your Honor, first off I guess I need to do, Mr. Cody says he starts class back on May the 1st. And I know the Defense and the State have talked about scheduling witnesses, there are a number of witnesses who are not even available to testify until May the 22nd. So I know that Dr. Frierson is out of the Country until that time. So I don't know who is going to deal with that, having issues or what, I am asking the State, I guess.
RICK HUBBARD: Judge, I guess the question is, it is really up to you whether he stays as a student or whether he is willing to--
THE COURT: I think we ask him.
BOYD YOUNG: Okay. And I am happy to talk to him about it, that's fine.
THE COURT: Okay.
BOYD YOUNG: With regard to Your Honor's first read through of the charges that we hammered out and I am sure this was just sort of an oversight or as Your Honor explained, but you said that this is a death penalty case and we would object to this being labeled as a death penalty case. I think that is death processing language indicating to the jurors that--
THE COURT: Why didn't y'all tell me that a long time, I mean y'all are using all of these synonyms.
BOYD YOUNG: In a Capital case--
THE COURT: It is in here, y'all have been using the words. I am good with whatever y'all want but y'all set me up on that.
RICK HUBBARD: Judge, as a practical matter, it is, it is just a matter of whether one can be proven as guilt and two, it is a Capital case.
THE COURT: All right, death penalty case, Capital case, what do y'all want to use.
RICK HUBBARD: Most people don't understand what Capital is so that is why we use death penalty because they are, oh, I get that, I hear that. That is a colloquy that I can understand. We are talking to people off the street, we speak their language, we speak as lawyers, we speak Capital. A lot of them are going to go, what is a Capital case.
BOYD YOUNG: A Capital case is a case in which life penalty or death penalty may be sought.
RICK HUBBARD: Makes it a death penalty case, let's just stick to death penalty.
BOYD YOUNG: I'm just saying for the record we object labeling it as a death penalty case.
THE COURT: I think that is semantics and so I don't think it is any more prejudicial than saying death penalty, Capital case, execution. Death penalty is probably the one that is going to come out easiest for me.
BOYD YOUNG: And I understand that, Your Honor. And this is a part of Dr. Foglia's testimony pursuant to the Capital jury project in that the Court must be very careful not to use processing language because jurors picked up on it in facts in their eventual verdict when the remedy is so easy to the Defendant to just say Capital case as opposed to death penalty case to avoid the processing effect and the accumulative effect in the case continually being labeled as a death penalty case.
THE COURT: All right, so when I say there are two possible sentences or four possible sentences I say what?
BOYD YOUNG: Four possible verdicts. The possible sentences are death or life without the possibility of parole. But that does not make this a death penalty case. If you come out and say this is a death penalty case, we want to talk to you about death penalty. This is, we want to know about your feelings about the death penalty which is all stuff that is going to happen and I am just asking that we minimize the processing effect as much as possible and not label it as a death penalty case.
THE COURT: All right. I will make every attempt to call it a Capital case but I don't understand--
RICK HUBBARD: And I am afraid a lot of people aren't going to understand. Judge, I even had a Judge one time ask me what made a case Capital. They were questioning what happens in that case. Judge, these are lay people, they understand death penalty. I think the whole point of voir dire is you as a Judge explaining the process. That is how they know, they are not going to be prejudice. They are not going to vote death because you use the term, death penalty. He is going to understand, oh, this is a serious case.
THE COURT: This is going to be hard to avoid. I understand your request but I want to go back and see how many times I said it.
BOYD YOUNG: Once.
THE COURT: Once?
BOYD YOUNG: Yes, sir.
THE COURT: Capital case?
BOYD YOUNG: No once, you just said death penalty case once.
RICK HUBBARD: That shows there is very little impact. You have limited it to one time, one good colloquy term that somebody on the street would know so where in the world is the prejudice.
BOYD YOUNG: Haven't asked to excuse the Juror.
THE COURT: Okay.
BOYD YOUNG: Or dismiss the charges or anything. I am just saying I want the Court to be aware, after hearing a lot of testimony about the processing effect--
THE COURT: All right. You know when I said it?
BOYD YOUNG: Very early on.
THE COURT: Notwithstanding the first paragraph and the State alleges the offense of murder combined with certain aggravating circumstances the State can seek the death penalty. I read that.
BOYD YOUNG: Labeling this as a death penalty case is the issue.
RICK HUBBARD: Judge, there is nothing wrong with that.
THE COURT: One time, I can go with one time, I can go with that. I don't see any undue burden on me to say Capital case the one time I have got to say it.
RICK HUBBARD: Except unless the Juror doesn't know what you are talking about.
THE COURT: I have already said death penalty in other parts so I am not changing those.
RICK HUBBARD: Okay.
THE COURT: I will give you that, Mr. Young.
BOYD YOUNG: Thank you.
THE COURT: What else have you got.
BOYD YOUNG: When Your Honor went through the list of the statutory mitigators and we request that Your Honor tell the jurors that this is not an exhaustive list and that anything that the defense presents or anything that they apply is reason to vote for life is mitigation and that the statutory list, they are not limited in any way to the statutory list. These are some things that are listed by statute but you are entitled to consider whatever you want.
THE COURT: So whatever the defense believes to be consideration in mitigation. Something like that?
BOYD YOUNG: Yes, sir.
THE COURT: All right. I can do that.
RICK HUBBARD: I think we had something we passed up along that line.
THE COURT: It is, on the statutory things that the State passed up, it is at the very bottom below the statutes.
BOYD YOUNG: Yes, sir.
THE COURT: Fair enough.
BOYD YOUNG: We just need to say you are not limited by that statutory list, whatever. And finally we would ask that they also be instructed that they can consider mercy as a reason to vote for life.
THE COURT: Where do you suggest that go?
BOYD YOUNG: Right after you say they are not limited to mitigation, you can even have no reason and we call that a mercy verdict.
RICK HUBBARD: Tell you what, Judge, if you do that why don't you give me death penalty back. Let's just, dear Lord, we sat back there forever working on this thing.
BOYD YOUNG: I don't know how many times you have to have a ruling from the Court and then the State reargue it but my understanding of Rule 18 is that one the Court rules, unless the Court ask for further argument that we are not suppose to do that. So that is what I tried to do, the State has not tried to do that. I would ask that we start--
RICK HUBBARD: So I won't use like billboards and things like that and I won't reargue it every time and I won't try to slip those in even though you have ruled.
BOYD YOUNG: Is the State making an objection or are they just making a comment.
RICK HUBBARD: I am commenting.
THE COURT: What did you say about anything the Defense believes can be considered mitigation.
BOYD YOUNG: Or you can have no reason which is mercy alone.
THE COURT: No reason is not a mitigation factor.
BOYD YOUNG: No sir, that is mercy. Mercy alone can be, you can have no reason or mercy alone can be--
THE COURT: I think that goes in my closing instructions, I don't think that goes in the statutory mitigating factors.
BOYD YOUNG: I think Rosemond versus Cato, 383 SC 320 says it is proper to instruct a jury in a Capital sentencing phase that it may recommend a life sentence for any reason or no reason at all including as an act of mercy. And that is what we would just request.
THE COURT: That sounds like a very improper instruction. What else.
BOYD YOUNG: Your Honor, given the fact that Mr. Cody has indicated that he is not aware of any pretrial publicity the Defense would request to show him the pictures that have been in the media to see if it refreshes his recollection as to hearing anything about the case. We are doing this while Mr. Cody is out of the room and let the Court know that when a Juror says I don't know anything about it it would be my intention to say, here is pictures that have been in the media, does this refresh recollection about hearing about it. If he says, no, that is fine. If he says, oh yes, I remember it, we will talk about it.
RICK HUBBARD: Judge, we will be trying this case again.
THE COURT: I don't think that is a fair way to use those pictures and he said no and I think we will leave it there. I do not think that is a proper way to, everything I have read and all the cases y'all have handed up about voir dire, I have not seen that done or heard that question in these records. Y'all can tell me when it was done, I don't think so.
BOYD YOUNG: Your Honor, my position would be a Juror is just like any other witness. Say, I don't remember that and then they see something and say, oh yeah, you know what, I do remember that. It refreshes the recollection.
THE COURT: No, not allowed.
BOYD YOUNG: Thank you, Your Honor.
THE COURT: Okay. Do I need to reask him anything?
BOYD YOUNG: I request that the Court just clarify that the mitigating factors are not limited to--
THE COURT: You want to do that when he comes in?
BOYD YOUNG: Yes, sir.
THE COURT: I don't mind if you ask him the question.
BOYD YOUNG: That is fine, I am happy to do it, whatever.
THE COURT: That's fine. Bring Mr. Cody back in.
(Whereupon, Mr. Cody entered the courtroom.)
THE COURT: I will remind you you are still under oath. This is Mr. Young and he will ask you a few questions.
EXAMINATION BY MR. YOUNG By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Cody, how are you?
JUROR: Good, how are you?
BOYD YOUNG: I am doing well. So I wanted to talk to you a little bit about right before you left you talked about your school was starting back and you are at Tech and y'all start classes back on May 21st?
JUROR: Yes, sir.
BOYD YOUNG: And how many hours are you taking?
JUROR: Twelve.
BOYD YOUNG: A full class load?
JUROR: Yes.
BOYD YOUNG: And have you already paid for next semester or the summer semester?
JUROR: Not yet.
BOYD YOUNG: Because my understanding that the trial will probably go past May the 22nd. Would you be able to miss the first week or so of classes?
JUROR: I am not sure.
BOYD YOUNG: Are you in night school or daytime classes?
JUROR: Daytime.
BOYD YOUNG: Okay. So if you had to be here from 9:00 to 5:00 Monday through Friday for possibly until the first week of June, would that interfere with your ability to go to class?
JUROR: Yes.
BOYD YOUNG: Okay. Would you rather go to class or do you want to stay here, now is the time, you just got to let us know.
JUROR: If I go to class do I get transferred to a different--
BOYD YOUNG: Yes, as a student, if you are not available like the Judge talked about yesterday, if you are a student you would have the option of transferring your jury service. Actually you probably wouldn't have to transfer because you made it this far but that would be up to the Judge.
JUROR: Can I do that?
RICK HUBBARD: Your Honor, I think Mr. Cody needs to go to school.
THE COURT: I do too. We are going to transfer you to another term. Sorry for making you wait so long. A It's okay.
THE COURT: Mr. Cody is free to go, thank you and you do not come back. A Thank you. (Whereupon, Mr. Cody was excused from the trial of this case.)
THE COURT: Now, y'all tell me the first line, do y'all want more or less.
BOYD YOUNG: I think what you are doing is fine.
RICK HUBBARD: Fine, Your Honor.
BOYD YOUNG: One thing that was pointed out to me, I think Your Honor misspoke when you said mitigating factors are possibly a reason as opposed to any reason to vote for a life sentence.
THE COURT: Y'all can't nickel and dime me like that. I am trying.
BOYD YOUNG: I know.
THE COURT: I am not going to read it verbatim. I can't read that well, I can speak better than I can read. If I am missing any, I am sorry.
BOYD YOUNG: I just got to protect the record and let the Court know that we are looking for any--
THE COURT: I apologize, I am doing my best.
BOYD YOUNG: I understand.
THE COURT: If y'all are going to hold me to that standard I need to do something different. Who have we got next.
COURT CLERK: Juror 174, Kenneth Hall. (Whereupon, Juror Kenneth Hall entered the courtroom.)
KENNETH HALL, being first duly sworn, testified as follows:
COURT CLERK: If you'll have a seat over there, please. If you'll state your name and if you'll spell your first and last name for the record.
KENNETH HALL: Kenneth Hall, K-e-n-n-e-t-h, H-a-l-l. EXAMINATION BY THE COURT
By The Court:
THE COURT: All right. Mr. Hall, good afternoon. Sorry for the delay. You're the second Juror of panel number one. My name is Eugene Griffith. I introduced myself yesterday to y'all as a big group. Now, I need to get to know you and explain some things to you and ask you a few questions about your eligibility to serve as a Juror. First and foremost, scheduling and personal obligations you may have, I am very aware, these lawyers are very aware to serve as a Juror is a big imposition but it is a public responsibility every citizen has to do. So do you have any vacations or obligations the Court needs to be made aware of. Potentially, this case could go to June. Now, we don't know because until it starts, once it starts it finishes. So we're going on a roller coaster ride. We buckle in. We ride until it stops. Any obligations or vacations such as that between now or June?
JUROR: I have a vacation in two weeks, but it's nothing -- it's nothing --
COURT REPORTER: Okay. We can't hear him, Judge.
THE COURT: Ms. Holston, the lady right here, she's taking everything you say down. A Okay. I've got a vacation in two weeks. It's not, it's just me and my wife going on vacation.
THE COURT: Okay. No big plans?
JUROR: No. Not even going out of State.
THE COURT: Okay. So if you were called to serve as a Juror in this case you could meet those obligations and modify you and your wife's plans?
JUROR: Yes, sir.
THE COURT: Okay. Now, you were placed under oath. What I'm looking for is truthful answers. No right or wrong answers. Just truthful answers. I asked the jurors yesterday to accept and know that once you were responding to becoming a potential Juror that you're not to have contact with other people or have others having contact with you about this case. Have you discussed this case with anyone?
JUROR: No, sir.
THE COURT: Anyone tried to discuss this case with you?
JUROR: No, sir.
THE COURT: Now, there have been some media reports that I asked about and I'm not aware whether you were the one that stood up or not. Have you seen any of the media reports?
JUROR: I did before yesterday.
THE COURT: Did before yesterday?
JUROR: Yes.
THE COURT: Now, were they television news media, newspaper or what?
JUROR: Television.
THE COURT: I explained several different times that what you need to decide in the case will be provided in the courtroom. The testimony, the evidence --
JUROR: Yes, sir.
THE COURT: -- and whatnot. How long ago did you see the media reports? Has it been recently or a while back?
JUROR: I think it was this Saturday.
THE COURT: If I ask you to, I think the gist of the news report was the trial is upcoming and the jury selection such as that and some of the brief facts. If any of those facts are different than the testimony you hear and the evidence presented to you, do you understand you're going to consider the testimony and evidence presented in the courtroom in deciding what facts you believe, not the reports you've heard last week?
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: Now, are you or any member of your immediate family a member of any types of organizations which would advocate for victim's rights such as MADD, Mothers, SADD, Student's Against Drunk Driving, Bikers Against Child Abuse, a member of Troopers Association or Auxiliary or the Sheriff's Association?
JUROR: No, sir.
THE COURT: Now, I asked you yesterday. Are you connected in any way to any of the attorneys involved in the case?
JUROR: No, sir.
THE COURT: Ever been represented by any attorneys in the case?
JUROR: No, sir.
THE COURT: Are you connected, in any way, to the Jones family?
JUROR: No, sir.
THE COURT: You were provided, before you came in, a rather lengthy list of potential witnesses and the Court rules require that the parties who participate, they've got to provide the Court, me, a list of potential witnesses. And so, they've got to consider all aspects of when they come to trial even though they might not intend to call each and every witness. Potentially if a witness can be called, they've got to share the information with the Court so that, in the middle of the trial, if there's a potential witness and they didn't alert the Court ahead of time and I have a Juror or perhaps even me, the Court, wait a minute, that witness is connected to a Juror or the Court or my law clerk. Something like that. Are you connected, did you review that list?
JUROR: Yes, sir.
THE COURT: Are you connected, any member of your immediate family connected, in any way, to any of those witnesses?
JUROR: No, sir.
THE COURT: You're not related by blood or marriage, to your knowledge, to any of those potential witnesses?
JUROR: No, sir.
THE COURT: Do you know of any social or business relationships you may have with any of those potential witnesses?
JUROR: No, sir.
THE COURT: I'm going to give you kind of a preliminary summary of the law and how trials proceed, a trial such as this. So it's a little instruction on the law that's a little bit about procedure and what's going to happen, and then ask you questions of are you going to be, you know, understand that and be able to follow the procedures that will be coming in this case. Okay? All right. In this case, Mr. Jones, he was introduced yesterday, he's charged by the State with five counts of murder. In South Carolina, murder is defined as the killing of another person with malice aforethought. Malice is defined under our laws as a person with a wicked or depraved heart, a person intent on wrongdoing, a person with hatred, ill-will or hostility. The definition of murder excludes any just cause or excuse for the killing. When the State alleges the offense of murder, combined with certain aggravating circumstances, the State can then seek the death penalty.
Now, before, all the way up to the trial, and all the way during the trial, a person accused of any crime, murder is included, that person is presumed innocent of each and every element of the crime which he's accused of or charged with. Mr. Jones, he is presumed innocent right now. The State must prove each and every element of the crimes that are charged by a standard of proof called beyond a reasonable doubt. I'll give a more lengthy definition of that later. Now, in most criminal cases Judges determine the punishment upon conviction. But in a Capital case, the jury determines the punishment. Any Capital case, the trial is divided into two parts, potentially. There's the guilt or innocence phase and, if necessary, the punishment phase. In the first portion of the case, the State must prove a Defendant's guilt of murder beyond a reasonable doubt. If the jury finds an accused person guilty of murder, then the trial proceeds to the second phase. Two parts.
In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt, then the jury considers the aggravating and mitigating evidence in deciding what punishment, either life without the possibility of parole or the death penalty. Now, our law here in South Carolina does not allow the State to seek execution of a person if the person is convicted solely of the murder. The State must prove an aggravating factor. The State must prove at least one statutory aggravating factor beyond a reasonable doubt. The books I have, these blue ones are the State's statutes handed down by the General Assembly and the aggravating factors are listed under a particular code section in, I think, Section 16. Now, even if the State proves the murder and an aggravating circumstance, jurors are required to consider any mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death.
Now, I'll tell you, even if no mitigating circumstances exist, jurors are not required to impose the death penalty. In order for a sentence of death to be imposed, the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to a life without parole sentence, then that sentence of life without possibility of parole will be imposed. In this case, this particular case that we're here today for, the State has indicted five counts of murder and has notified Mr. Jones that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity. In this case, you may hear testimony and evidence showing many things. There will be a wide variety of testimony which may be presented to you in this trial.
I will instruct you as to how to consider and evaluate the testimony and evidence, whether it be defined as evidence of an aggravating factor, evidence of mitigation, which would be any reason to vote for a sentence of life without parole, evidence of defenses, evidence of affirmative defenses such as accident, guilty but mentally ill, not guilty by reason of insanity. Thus, until the testimony and evidence is presented during the trial, I'm not able to tell you the exact instructions on the law that I will give on which of these or any of these. But can you accept an oath to meaningful consider all the testimony and all the evidence and apply the law as I instruct it and consider all the evidence consistent with my instructions on the law? Can you do that?
JUROR: Yes.
THE COURT: Now, there are some recognized defenses, statutory defenses which I mentioned earlier. Potential defenses include, these are listed in the little blue and red books behind you. Identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Now, until the facts are presented, I'm not certain which of those apply, but those are statutory defenses. So if evidence of these defenses is presented in this case, can you give them meaningful consideration and apply the law as I instruct it regarding those defenses?
JUROR: Yes.
THE COURT: Now, I described some mitigating factors. There's statutory mitigating factors that are listed in the same books. Potential mitigating circumstances which you may hear. The Defendant has no significant history of prior criminal conviction or violence against other people, murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct, consented to the act. A Defendant was an accomplice in the murder committed by another person and his participation was minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim into committing the act. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Those are the statutory factors. The Defense may present other factors which could be considered in mitigation. Now, depending on how the testimony goes and whether those mitigating factors apply or not would be part of my instructions to consider those. If any such evidence of mitigating factors is presented in this case, can you give each of those meaningful consideration and apply the law as I instruct it to you?
JUROR: Yes.
THE COURT: Now, because of the plea entered in this case and depending on the evidence presented there may be up to four potential verdicts in this case; guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty. Four potential verdicts. If such evidence is presented could you give meaningful consideration of each and every one of those verdicts, any of those four, and apply the law as I instruct you and reach one of those verdicts?
JUROR: Yes.
THE COURT: All right. Both of the attorneys, one from each side has an opportunity to ask you a few questions. Remember, truthful answers. Nothing's right or wrong. Can you answer their questions?
RICK HUBBARD: Your Honor, I don't know that you did the types.
THE COURT: Oh, I did not. You are correct. You were given a sheet of paper to review three types of potential jurors which Courts have seen over time. Did you have a chance to review that, three types of jurors sheet?
JUROR: Yes, sir.
THE COURT: Now, generally, there are those three types. You read those. Can you describe yourself or find yourself in any one of those three types?
JUROR: I'm type three.
THE COURT: Type three?
JUROR: Yes, sir.
THE COURT: You like to listen to everything?
JUROR: Yes, sir.
THE COURT: And then determine?
JUROR: Yes.
THE COURT: All right. Mr. Young.
EXAMINATION BY MR. YOUNG By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Hall.
JUROR: How you doing?
BOYD YOUNG: I'm doing all right. We apologize. I know you were here all morning while we were working and we apologize for keeping you waiting. I just need you to speak up into the microphone just a little bit. Okay?
JUROR: All right.
BOYD YOUNG: And like the Judge said, we're just going to have a conversation about your opinions about some stuff. Okay?
JUROR: Okay.
BOYD YOUNG: Do you mind sharing those with me for any reason?
JUROR: Not at all.
BOYD YOUNG: If there's anything that I ask you about that you feel like you want to do outside of the presence of everybody else, just let the Judge know and we'll do it outside the presence of everybody else. Okay? Fair enough?
JUROR: Yes, sir.
BOYD YOUNG: All right. I know that you had talked to the Judge a little bit about that you had seen this case in the media on Saturday.
JUROR: Yes, sir.
BOYD YOUNG: Can you tell me, can you tell me what it is that you saw?
JUROR: They was talking about a jury was going to be picked for this case starting this week.
BOYD YOUNG: Okay.
JUROR: That's pretty much what it said.
BOYD YOUNG: And you knew that you were coming in on Monday?
JUROR: Yes, I did.
BOYD YOUNG: Okay. So you were like, I guess that's good. I'm going to get picked on --
JUROR: I was like, maybe this is something else that I'm being called in for, but I figured that's what it was.
BOYD YOUNG: Crossed your fingers, maybe, but probably it?
JUROR: Yes, sir.
BOYD YOUNG: Can you tell me like how you, how did you feel about what you had seen, what the allegations were?
JUROR: I had pretty much forgot about it happened, when it happened.
BOYD YOUNG: Four years ago?
JUROR: Yes, sir. And that just, you know, brought back memories, because I work out in this area and everything. And when I heard about it Saturday, about the jury being picked and everything, it just brought back, you know, when it happened, you know, and everything when it was in the news and stuff.
BOYD YOUNG: What did you think when it first happened?
JUROR: I was mad. I was mad. I was mad that the children lost their life.
BOYD YOUNG: Right. At the hands of their father?
JUROR: Yes, sir.
BOYD YOUNG: And did you form an opinion about the case at that point in time?
JUROR: No. Just mad. I was mad at the time that the children lost their life.
BOYD YOUNG: Are you still mad?
JUROR: No. I want to hear, I want to hear both sides. I want to hear, you know, what caused this --
BOYD YOUNG: Sure.
JUROR: -- to happen.
BOYD YOUNG: Got it. And the Judge talked to you a little bit about the presumption of innocence --
JUROR: Yes.
BOYD YOUNG: -- right?
JUROR: Yes.
BOYD YOUNG: I mean, do you presume Mr. Jones to be innocent, that he didn't do it? Is that --
RICK HUBBARD: Your Honor --
BOYD YOUNG: -- what your presumption is?
RICK HUBBARD: That's a legal question.
THE COURT: Rephrase that question.
BOYD YOUNG: Sure.
BOYD YOUNG: Based on what you saw and feelings you had and you being mad about it, can you presume him to be innocent?
RICK HUBBARD: Your Honor, I don't mean to interrupt, again. You charge on that issue as a matter of law. So you've asked can he follow the law. So if there's an issue, the question needs to be if the Judge charges you to presume somebody innocent, can you.
BOYD YOUNG: Your Honor, I object to the speaking objection and if Mr. Hubbard wants to be heard then we'd have to ask Mr. Hall to step out, please.
THE COURT: All right. Let's be heard. Can you step out real quick and let me hear the lawyers discuss this and we'll have you right back in here.
JUROR: Okay.
(Whereupon, the Juror exited the courtroom.)
RICK HUBBARD: Your Honor, my objection is we're asking the Juror, and I understand what the Defense is trying to do but we're asking the Juror about law. Can you presume somebody innocent? You're going to read the charge on the law and you're going to ask this jury, you're going to tell them, in fact, that you must presume he is innocent. That is, that is a non-negotiable matter, and you're going to ask them and you have asked them can you follow the law as I give it. You've done that. But to come in and say, all right, just pick something out of the blue. Part of your charges say can you follow that. Judge, you're asking him about the law of that. I think it just needs to be rephrased. If the Judge charges you that you must presume this man innocent, can you do that? I think that's how it needs to be phrased as opposed to what do you think about that.
BOYD YOUNG: Isn't that what, I'm not going to --
RICK HUBBARD: My objection is because the issue is can he follow the law as you give it. So that's the question. If the Judge says --
THE COURT: How about this? Mr. Young, can you go with what the Judge said, because I did it, that Mr. Jones is presumed innocent right now all the way through the trial.
BOYD YOUNG: He said he recalled seeing it, he was mad, he was upset when he first saw it, it brought it up again when he saw it on Saturday. I said, well, if you were mad about it, can you really presume him to be innocent. That's what I said. I don't understand what the objection is.
THE COURT: I don't think that's exactly what you said.
RICK HUBBARD: What I think the correct follow-up is, now, you heard the Judge say he's going to charge the law, you said you could follow the law. If the Judge tells you, you must presume this man innocent until there's sufficient evidence to convince you otherwise as you deliberate, it's got to be along those lines. Otherwise, it's really not fair to a Juror. They're coming in here, they don't know --
THE COURT: How about this. How about you were mad then. Can you set that aside and can you now listen?
BOYD YOUNG: Judge, I had, first off, he is not required to follow the law until he's a Juror. Juror's are required to follow the law. We're just asking him his personal opinions and his personal feelings about things like the presumption of innocence and about things like the death penalty. That's what I want to explore with him is his biased and if he has any. If he doesn't have any, great. But can you follow the law, will you follow the law, those are not the appropriate questions. Those questions are clearly delineated. Both the Unites States Supreme Court and --
THE COURT: We got that.
BOYD YOUNG: Okay.
THE COURT: But I'm not certain you were asking, give me your proposed question now. Bring him back in here. Do you want to go back to the issue of him being mad, because they were child victims is kind of his answer.
BOYD YOUNG: Given the feelings that you had at that time and based on what you've seen, how can you presume him to be innocent?
RICK HUBBARD: I don't think he can ask how can you presume him to be innocent. The question is not that. It is, will he listen to you and presume him innocent. That's the question for the Court.
BOYD YOUNG: The Court's already asked that question.
RICK HUBBARD: We're not sitting around at a cafeteria talking about, hey, just how do, tell me your feelings. Judge, there's a lot of laws I don't like but I follow them and I have to and he's taken an oath or will take an oath to follow the law. So that's the question. Not what his feelings are.
BOYD YOUNG: The question is about his feelings and biases go to both whether or not he is impaired substantially in his ability to follow the law or just exercise a peremptory strike. We are not asking him can you follow the law. Everybody says that they can follow the law. Everybody says that they will follow the law once it's given. But right now he's not on the jury and I'm allowed to explore his biased and prejudice and potential areas for both peremptory and cause challenges. That's all I'm doing, Your Honor. I'm not trying to trick this guy. I'm not doing anything improper. I'm asking him, all right, well, you said you were really mad. Tell me how you're going to set that anger aside. That anger was something that was in you, it's real to you --
THE COURT: Well, maybe that's the question.
BOYD YOUNG: -- And you brought it up.
THE COURT: Maybe that's your question.
RICK HUBBARD: Judge, I still have a problem with that. Now, I think it goes like this. Now, you said you were angry when you first heard these reports.
THE COURT: Right.
RICK HUBBARD: But as you sit here today and you're a potential Juror, can you follow the Judge's instructions when he says you must presume that man innocent? Can you do that. Knowing how mad you are, can you do that? Can you follow the Judge's instructions? That's how you ask it. You don't go, well, tell me how it made you feel. Judge, everything's about, for you, can this Juror do their job, and when he cuts you out --
BOYD YOUNG: Your Honor, State v. Sapp, 366 South Carolina 283, a question from the Judge. "I understand, and as I said, there are no correct answers to any of these. It's merely how you feel." That's what we're trying to ask.
RICK HUBBARD: It's one thing if it comes from you, but the real question is can he be fair and impartial and can he follow the law as you give it. That is the question. Knowing how angry this made you a long time ago, can you today, as a Juror, listen to the Judge and follow the law and presume that man innocent? Can you do that?
THE COURT: I think that my question, I'm trying to -- didn't you ask him if he was still mad and he said no? I think you did.
BOYD YOUNG: I don't recall. If I did, my question should have been why or why not.
THE COURT: I don't know how to get mad, I mean, can you set your anger aside or can you mask your anger or something. I don't know exactly where you want to go because it's such an obscure question. What are you, what are you, give me your question again because I think I've gotten back to can you follow the Judge's instruction. That's what Mr. Hubbard wants. I've asked him that and he says he can. What's your next question regarding his reconciliation of former anger --
BOYD YOUNG: Sure.
THE COURT: -- or current anger? What are you going to ask him?
BOYD YOUNG: Given how angry, given your anger at the time, how can you put that aside?
THE COURT: Or can you.
BOYD YOUNG: Can you put that aside?
RICK HUBBARD: I think that's different as far as how can you do it. Can you put that aside --
THE COURT: Yeah. I think that's -- I like that better. Can you put that anger aside?
BOYD YOUNG: Sure.
THE COURT: Okay.
RICK HUBBARD: And ultimately it's going to be can you put it aside and follow the Judge's instructions.
THE COURT: And you--
BOYD YOUNG: You know I disagree with that question. It's an improper question. Under Morgan, it says, don't ask that question.
THE COURT: Can you put it aside is where are you going with it?
BOYD YOUNG: Sure.
THE COURT: Okay.
BOYD YOUNG: I'll do that.
THE COURT: Bring him back in.
BOYD YOUNG: Did Your Honor want to see Sapp where it says --
THE COURT: I've got it in my notebook.
BOYD YOUNG: Sapp. Yes, sir.
THE COURT: It's Sapp or South?
BOYD YOUNG: Sapp.
THE COURT: We wrote down South.
(Whereupon, the Juror entered the courtroom).
BOYD YOUNG: Hey, Mr. Hall. You doing all right still?
JUROR: Yes.
BOYD YOUNG: Okay. And I'm not putting any words in your mouth. This is your opportunity to tell me what you're thinking. Okay?
JUROR: Okay.
BOYD YOUNG: You had talked to me about that you were angry when you first heard about these children being murdered?
JUROR: Yes.
BOYD YOUNG: And my question, and I started asking you about the presumption of innocence, right?
JUROR: Yes.
BOYD YOUNG: Tell me. Can you put aside the anger that you felt at the time that you first heard about it?
JUROR: I can. I think everybody deserves a fair trial.
BOYD YOUNG: Sure. I noticed that you have a couple of children of your own.
JUROR: Yes.
BOYD YOUNG: And some people say, in a case involving kids, having had kids and been a parent, that that's not a case for me, that I can't be a fair Juror in that type of case. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: You know people like that?
JUROR: Yes, sir.
BOYD YOUNG: Especially given the nature of the harm related to the kids, right?
JUROR: Yes, sir.
BOYD YOUNG: And my question to you, is that you or does that resonate with you or is that not you? You just need to tell me.
JUROR: Like I said, I think everybody, I want to hear the facts. I want to hear, you know, all the facts and, you know, determine that way. Not what I've heard through the media, not because I'm a father of two.
BOYD YOUNG: Sure.
JUROR: I want to hear, you know, the facts of the case and give my judgment then.
BOYD YOUNG: Okay. Fair enough. And the Court has told you about this, that Tim has plead not guilty by reason of insanity. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And we haven't really instructed you on what all that means yet, right?
JUROR: Yes, sir.
BOYD YOUNG: So some people say, you know what, not guilty by reason of insanity is not a verdict that's on the table for me in a case involving the murder of children. Do you understand that?
JUROR: Yes.
BOYD YOUNG: And can you tell me, is that something that you can give realistic consideration to in a case like this?
RICK HUBBARD: Your Honor, again, we're back to what we were talking about.
THE COURT: We are.
RICK HUBBARD: I rely on Stanko.
THE COURT: Yeah. All right. You all come right here a minute.
(Whereupon, a bench conference was held).
BOYD YOUNG: Mr. Hall, we apologize. We're just working out some kinks.
THE COURT: Before I ask you my first question, I am going to put you in the back, put something else on the record and get you right back in here.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom).
RICK HUBBARD: Your Honor, my objection is going right back to what we've been talking about for some time and I'm relying on State versus Stanko.
THE COURT: Yeah. I read it. You don't have to go back through it. Why do you get to ask that question?
BOYD YOUNG: Because some jurors --
THE COURT: On solely the one verdict out of the four, and that's what the State's objecting to is you're focusing on one of the four verdicts.
BOYD YOUNG: Because jurors who say that they would not give consideration to a not guilty by reason of insanity verdict in a murder case are not qualified, and they're substantially impaired in their ability to follow the law. And the only way to find out if they're substantially impaired in their ability to follow the law is to ask them the question.
THE COURT: I don't, I mean, I don't know how that question doesn't go to Stanko. I understand why you want to ask it. My suggestion is can you, basically, reask the question. The Court describes four verdicts. Are any of those four potential verdicts not available to you. Go with all four of them rather than not giving a reason of insanity was his plea. All four verdicts, is anything off the table for you? How about a question of that sort?
BOYD YOUNG: No, sir. Because I need to be able to go through each one of them.
THE COURT: I'm not going to let you do it. I'm very afraid that is staking.
BOYD YOUNG: The staking is--
THE COURT: I know. I know the staking to you is this and staking to the State is that.
BOYD YOUNG: Well, no sir. I mean, I've filed a brief and a motion to the argument about what staking is and we've gone through the case law. Staking is defined by Courts as giving a Juror a set of facts and asking them to commit to a particular vote. If I prove X, will you vote Y. That's staking-out, that's prejudgment, that's not allowed, we are not doing that.
THE COURT: The way you asked the question, I believe that to be very close for a problem with staking. I know you disapprove of that but it sounds like staking to me. I'll allow the question, four verdicts. Are any of those four verdict forms something you couldn't sign your name to. I will suggest that question will be allowed.
BOYD YOUNG: All right.
THE COURT: All right. Solicitor, that's what I'm going to go with.
RICK HUBBARD: Yes, sir.
THE COURT: So bring him in.
BOYD YOUNG: Your Honor, just for --
THE COURT: Hang on, Bob. Hang on, Bob.
BOYD YOUNG: For the record, I object to not being allowed to ask the question.
THE COURT: Yes. And all the cases are referenced in your brief.
BOYD YOUNG: Yes, sir.
THE COURT: Absolutely.
BOYD YOUNG: Thank you.
THE COURT: Bring him in. That's all the biases and whatnot argument. And if you want to put the number of that motion on the record in a moment, we'll do that.
BOYD YOUNG: Yes, sir.
THE COURT: Okay.
BOYD YOUNG: Thank you very much.
THE COURT: You are protected.
(Whereupon, the Juror entered the courtroom).
BOYD YOUNG: Mr. Hall, I apologize and I wish I could promise you you're not going to get anymore exercise but you probably will. Okay?
JUROR: I need it anyway.
BOYD YOUNG: All right. And you don't hold it against me for asking you questions, right?
JUROR: No, sir.
BOYD YOUNG: Okay. And you don't hold it against the State for saying we've got to talk to the Judge some?
JUROR: No, sir.
BOYD YOUNG: All right. And you don't hold it against the Judge because we take a few more minutes?
JUROR: No, sir.
BOYD YOUNG: All right. I was talking to you a little bit about the plea of not guilty by reason of insanity. Okay. And the Judge talked to you about how when somebody pleads not guilty by reason of insanity there are four possible verdicts that the jurors have to consider in the merits phase, in the guilty, not guilty phase, there are four possible verdicts for the jury.
JUROR: Yes.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Okay. So there's guilty, which is guilty beyond a reasonable doubt, right?
JUROR: Yes, sir.
BOYD YOUNG: You understand that --
JUROR: Yes.
BOYD YOUNG: -- and you don't have any questions about that?
JUROR: No, sir.
BOYD YOUNG: There's guilty but mentally ill, which I'll sum it up by saying they knew the difference between right and wrong but couldn't conform their actions to the requirements of the law. Okay, do you understand that? And guilty but mentally ill, we go to a second trial without the penalty phase. Okay, all right. And then there's two other verdicts that are possible. Not guilty. You know what that means, right?
JUROR: Yes, sir.
BOYD YOUNG: And not guilty by reason of insanity. And that means that somebody didn't know the difference between right and wrong, legal or moral right and wrong, at the time of the act. Do you understand that?
JUROR: Yes.
BOYD YOUNG: Now, some people would say, you know, if you didn't do it, that's fine, you didn't do it. But for me, that not guilty by reason of insanity verdict --
RICK HUBBARD: Your Honor, I object, again. Same thing. And I've been --
BOYD YOUNG: I apologize. I apologize. I meant to phrase it differently, Mr. Hall. Your Honor, can I rephrase?
THE COURT: Yes. You may rephrase.
BOYD YOUNG: Thank you, Your Honor.
BOYD YOUNG: Is any one of those four verdicts sort of off the table for you in a murder case?
JUROR: It comes back to knowing the facts.
BOYD YOUNG: Okay.
JUROR: Hearing the testimonies and, you know, and getting all the evidence that we can hear --
BOYD YOUNG: Sure.
JUROR: -- to determine.
BOYD YOUNG: And I understand, I think I understand where you're coming from. So let's talk about that a little bit. Okay. I'm going to talk to you a little bit about your views about the death penalty or life without parole. Okay. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Now, we're sort of putting the cart before the horse because, like you said, we haven't heard all of these facts yet, right?
JUROR: That's right.
BOYD YOUNG: All right. But now is the only opportunity that I have to talk to you about your views about the penalty, okay. Would you agree with me not to presume that Mr. Jones is guilty just because we have to have this penalty, this talk about the appropriate penalty now?
JUROR: Yes.
BOYD YOUNG: Okay. Can you tell me a little bit about your feelings about the death penalty?
JUROR: I believe in the death penalty.
BOYD YOUNG: Okay. If I used the phrase, an eye for an eye, you've heard that phrase before? Is that something that you believe in?
JUROR: I do. I do.
BOYD YOUNG: A life for a life?
JUROR: I do.
BOYD YOUNG: Does that mean, so in South Carolina, and I think the Judge explained this to you a little bit. Murder is the intentional killing of another with malice aforethought, right?
JUROR: Yes, sir.
BOYD YOUNG: Right. And that's what the State would have to prove, guilty beyond any and all reasonable doubt of murder. Okay?
JUROR: Yes.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: That means that it wasn't an accident, it wasn't self-defense, the Defendant wasn't insane. It was somebody who knew what they were doing and chose to kill an innocent person. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And in a case like this, what we're talking about is a person who chose to kill an innocent child. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: It sounds to me like you, based on who you are and your life for a life views, that once the State has proven to your satisfaction beyond any and all reasonable doubt, they're guilty, guilty of murder, murder of children, that for you --
RICK HUBBARD: Your Honor, I'm sorry to do this.
THE COURT: We discussed it could take a little bit.
(Whereupon, a bench conference was held).
THE COURT: Mr. Hall, we're going to send you back out and get you some more exercise. We'll have you right back in a moment.
JUROR: All right. (Whereupon, the Juror was excused from the courtroom).
THE COURT: All right. Solicitor?
RICK HUBBARD: Your Honor, I think the whole tenor of these questions is improper. He's asking this man about the facts in this case, facts that haven't been presented. He's asking about law and he starts, the whole start of the soliloquy begins, do you believe eye for eye, and Judge, maybe I should --
THE COURT: He said life for life.
RICK HUBBARD: What's that?
THE COURT: Life for life, then he went eye for eye.
RICK HUBBARD: Yeah. And this potential Juror has said he wants to hear both sides. He can consider either life, death. He'd look at guilty, not guilty by reason of insanity, guilty but mentally ill, all the four categories that you've laid out. The Defense is now trying to use their words and input them to him and this poor guy's coming right off the street. And then they're talking about specific facts in this case. Little children, in this case, were killed. So your eye for eye, how do you feel about that. That's wrong.
BOYD YOUNG: I didn't understand the State's objection, other than that's wrong.
THE COURT: Well, the objection in the sidebar was, so after an eye for eye, so murder, taking the lives of five small children, that's where you were going. That's when he objected.
RICK HUBBARD: I guess, ultimately, since it's not fair, it's a hypothetical in nature, but then also you're pulling specific facts that -- this Juror doesn't know what happened in this case. He knows it involves kids, but you can't just say how do you feel about this, explain this. He hasn't heard anything yet. And then, the second issue is, by saying eye for an eye, life for a life, death for death. And then trying to pin him down saying, all right, now there's a bias, when he's been painfully clear he wants to hear everything and he could vote either way. I get it if this is a guy that said, you know, I lean to death. I'm just going to tell you, I'm a number three, but I lean to death. If that was his words, but it's the Defense attorney's words. It's not fair to this guy.
THE COURT: Go ahead.
BOYD YOUNG: May I respond?
THE COURT: Yeah.
BOYD YOUNG: Your Honor, he said continually, based on the facts, based on the facts. When I asked him if he -- if he was familiar with the phrase, eye for an eye and if it was -- he described it and he said he did. And then, I said, does that mean a life for a life. And he said, yes, it does.
THE COURT: You said it the other way around. Life for life was first, then eye for an eye as second. I'm certain of that.
BOYD YOUNG: Well, the record will be clear on that.
THE COURT: I'm certain I'm right.
BOYD YOUNG: Okay. I don't think -- I'm hoping that it doesn't matter.
THE COURT: I don't think it matters.
BOYD YOUNG: Okay. When he says facts of circumstance, he means guilty or not guilty. My position is that he means, guilty or not guilty. But once he decides that somebody is guilty, I believe his view is that the only appropriate verdict, at that point in time, would be death. That's what I'm trying to ask him about.
RICK HUBBARD: Then, let's ask it this way. Here's what I propose.
THE COURT: He knows your argument.
RICK HUBBARD: Okay. All right.
THE COURT: Let him finish, then I'll let -- I'll hear your suggestion.
BOYD YOUNG: Mr. Hubbard is not going to dictate what my questions are and it's not, can you follow the law and I'm not staking him out. We already agreed that we were going to do category specific voir dire as to the murders of children in this case pursuant to the transcript that the State and the Defense handed up in Blackwell. I don't know why they're objecting when that is what we handed up and --
THE COURT: You all agreed to that?
RICK HUBBARD: No, sir.
BOYD YOUNG: Yes.
RICK HUBBARD: No, sir. We handed up Blackwell --
THE COURT: Hang on. I wasn't aware of that --
BOYD YOUNG: Yes, sir.
THE COURT: -- that you all agreed to that. I did not know that.
RICK HUBBARD: We --
BOYD YOUNG: Your Honor asked me if we were good with what happened in Blackwell and I said, yes. It's murder, it's category specific murder. And then we go through the other impairments regarding the mitigating factors and the sentencing decisions.
THE COURT: I don't know. I mean, I remember this conversation. But that, to me, does not tell me, getting a script out of Blackwell, I wouldn't have done that. I apologize. I apologize, I missed that.
BOYD YOUNG: Obviously, we have to do some instances, because this is a not guilty by reason of insanity case and Blackwell was not. But the basic concepts of Blackwell where we were voir diring on the murder of a child as appropriate category specific voir dire to determine jurors punishment views.
THE COURT: I am not -- I don't remember that being asked. I remember, are you good with Blackwell. You all said, yes. I don't remember saying, okay, let's see the script. We'll go from there. That was not addressed, in my opinion, by any of my rules. We discussed Blackwell. Are you good with it, yes. I did not take two steps further and pull the script what you're describing now. I didn't do that. Now, I'm not saying I won't.
BOYD YOUNG: Yes, sir.
THE COURT: Until right now, I did not know that, if that's what you were asking.
BOYD YOUNG: My understanding was that we were -- and the State has consistently said it would be appropriate to ask jurors about the category of mitigation -- I mean, category of aggravation involving this case, which is the murder -- multiple murder and murder of children. And that that has consistently been their position is that, yes, you have to ask about that. Yes, that's required to be proven by the State, they have to find one of those factors in order to be able to consider punishment and it's appropriate to ask about.
THE COURT: So is there a portion of the Blackwell transcript that you believe delineates this line of questions?
BOYD YOUNG: That we asked about the murder of children?
THE COURT: Yeah.
BOYD YOUNG: Yes, sir.
THE COURT: All right. Why hasn't anybody picked it out of the, these are the general questions, would you consider it. Why hasn't that been done?
BOYD YOUNG: I apologize, Your Honor. I guess, I didn't do it well.
THE COURT: What I understood was, Judge, here's Blackwell. It was an arduous process getting through the first poll and trying to work our way into a piece of rhythm of voir diring the jurors.
BOYD YOUNG: Yes, sir. We did.
THE COURT: We said that. That's what I thought Blackwell was for.
BOYD YOUNG: Okay.
THE COURT: And that's what I used it for.
BOYD YOUNG: Yes, sir.
RICK HUBBARD: Judge, our purpose in making sure you look at Blackwell but also Stanko, is when you go through the voir dire you'll see a lot of the objectionable questions that we were concerned that are going to be raised today, hypothetical questions, staking out, all those things are addressed and they come in different guises and different forms to give you guidance. I'm not saying it's just a template that whatever some defense attorney asked in one of those cases is, therefore, okay and we never made that agreement. We gave those to you to enlighten Your Honor to see what you would be looking at in this case. Stanko, because it was an NGRI case. Blackwell, because it was one of the last cases that was upheld and it was pretty hard fought over. That case began with a battle over mental retardation. So there are a lot of issues there.
THE COURT: Yeah.
RICK HUBBARD: They provided guidance. But as far as an agreement, that we've agreed to something, that's news to me, too. Your Honor, I think this. If there's a question of in light of your response, do you still consider yourself a type three Juror. Would you still want to hear both sides, could you still give life or death depending on the circumstances.
THE COURT: I think those are your questions.
RICK HUBBARD: But his questions, he's basically -- Your Honor, basically, what it comes down to, he's putting words in the mouth of a Juror who doesn't know anything about this process and the whole question is going to come down to just what I asked. You can't sit him if he says no.
BOYD YOUNG: Judge, I think the Solicitor's argument goes to how much weight you want -- this is -- obviously, this is your call and your determination. And if you think that my question is unfair and he says whatever he says, you can say, well, I don't think that was a fair question and you can ask it in a different way and the Solicitor can ask it in a different way. I think I'm entitled to ask the question that I'm trying to ask and get his response and find out where we go from there.
RICK HUBBARD: Judge, I guess my ultimate objection is, it doesn't clarify where this man stands. It muddy's it because I think it's confusing to a Juror. I think it's just patently unfair for a Juror that when you throw out something like an eye for an eye or life for a life, a lot of people can say, yeah, I believe that, that's why I can believe in the death penalty, but it doesn't mean that's why I'll always give it. So the ultimate question for everybody here is, when you consider all the evidence, are there some circumstances where you'd still give life and maybe death.
THE COURT: All right. I tried to write it down. I think it started out as, do you believe in the death penalty. He said, I believe in the death penalty. And then life for a life, eye for an eye.
BOYD YOUNG: I think it's flip-flopped.
THE COURT: What was the question after that, because the Solicitor stood up in the middle of that and I was looking kind of to hear the rest of your question before he objected. But what was your question after? It was something to do with --
BOYD YOUNG: Then I went through what the definition of murder is.
THE COURT: Yeah.
BOYD YOUNG: And then I said, you know, pursuant to the transcript in, cited by the Supreme Court in Dickerson, that means that murder is not an accident, not self-defense, not heat of passion --
THE COURT: Yeah.
BOYD YOUNG: -- whatever the defenses are. Understanding that you found somebody guilty beyond a reasonable doubt for murder, the murder of children, are you somebody that thinks the death penalty is the only appropriate punishment.
RICK HUBBARD: See, now, you're asking specifically about this case, the murder of children, and that is absolutely forbidden. You cannot ask that. He has not heard one iota of evidence --
BOYD YOUNG: There's nothing --
RICK HUBBARD: -- or bit of testimony -- it's my floor now. That's why he cannot ask that. The question is, you can't ask something about a case, we've just said, can you set aside everything you heard in the media and now you're drawing that back out and saying, all right, he killed his kids, now let's, basically, interject these facts again. You can't.
BOYD YOUNG: Over fifty-seven percent of the jurors in South Carolina who participated in the Capital Juror project thought that the death penalty was the only appropriate punishment for multiple murder.
THE COURT: Well, why can't you ask that? Do you understand the Judge explained to you that there's more than one option for sentencing, rather than saying -- giving a suggested answer.
BOYD YOUNG: Because I'm an advocate and want to know, if that's true, and I'll follow-up with it.
THE COURT: I think it's more appropriate for you to say, if the murder's proven, do you understand that there are two options for sentencing.
BOYD YOUNG: Sure. And he understands that, but he only has one. Understand, yes. There are two. The Judge told me there are two, the law is two, I'll say that there are two.
RICK HUBBARD: I haven't heard that there's just one from this Juror. I think we're creating something that's not there and that's why it's so wrong for this Juror. He said he could consider both. He actually said he wanted to hear both sides.
BOYD YOUNG: He never said he could consider anything.
RICK HUBBARD: Yes.
BOYD YOUNG: All he's ever said is, yes.
RICK HUBBARD: No.
BOYD YOUNG: Will you follow the law, yes. Will you, he said he could consider both and that he would want to hear everything. When did he say --
RICK HUBBARD: He --
BOYD YOUNG: Those are Mr. Hubbard's words. The only thing that he said --
RICK HUBBARD: No. I'll go to the transcript.
THE COURT: No, no. Let's do this. Let's do this. You all settle down. You all can sit down. Joy, can you look that up real quick? That question, Mr. Young asked.
RICK HUBBARD: That part, Your Honor, or the -- that he would want to hear everything? Because that was important.
THE COURT: I'm trying to resolve this, because it's going to --
COURT REPORTER: Judge, let's just take a break, if we can.
THE COURT: Yeah. We'll stand for a few minutes. (Whereupon, a brief recess was held. Audio of testimony was played for the Court and the Attorneys.)
BOYD YOUNG: Your Honor, I don't dispute at all that when we were talking about guilty or not guilty he said I want to hear the facts and decide on the facts as presented. We started talking about penalty, for somebody that has been found guilty the facts are over for him. That is what I am trying to ask. When he said facts that means did they do it or not. That is what we were talking about at the time that he said I want to hear the facts. Okay, you have heard the facts, the person is guilty of murder, let's talk about penalty. Where are you on penalty.
RICK HUBBARD: The way it goes is the first line of questions was the media.
THE COURT: What about where you were going. So far we are okay with, it is the next couple. You still got it-- (Whereupon, testimony was played for the Court and the Attorneys.)
BOYD YOUNG: A category of cases involving the murder of children.
RICK HUBBARD: That is hypothetical and under South that is objectionable.
BOYD YOUNG: Your Honor, I hand up to the Court a copy of the transcript to the first Juror from State versus Daise in front of Judge Mullin which we have been talking about a bunch and I think Your Honor has a copy of some of it. But on page 447 Mr. McGuire's question after argument with the Solicitor's office is but we have to have a starting point and I want to make sure you still remember and understand that we are talking about malice aforethought murder, aggravators being two killed, shot and killed and one being a child. And just in that situation tell me your thoughts on the death penalty. From Blackwell where we have all been dealing with the Blackwell transcript. The question from the Solicitor's office on page 578, an aggravator could be like in this case or whatever, we have a couple of but one of them may be involved in the death of a child. At the same time they will present mitigation.
THE COURT: You didn't address anything about mitigation in your question a moment ago that we just relistened to.
BOYD YOUNG: No, Your Honor.
THE COURT: That is kind of where we stopped.
BOYD YOUNG: I haven't got to mitigation yet.
THE COURT: Okay.
BOYD YOUNG: I need to get there.
RICK HUBBARD: That is why this line is unfair because he is asking about a case about a man killing children so now he is just saying what is a category of cases. South deals directly with this. South is, State v. South at 331, SE 2nd, 775, this case was tried in Lexington many years ago. South contends the trial Judge erred in refusing to remit Defense Counsel to ask jurors hypothetical questions concerning the death penalty which is what this is. It is talking about a category of cases with kids. Clearly the questions would have been improper since the purpose of voir dire is to insure each Juror can make a decision based on evidence presented rather than hypothetical evidence. What he is doing is he is just calling it a category of cases but that is exactly what South is dealing with, Judge.
BOYD YOUNG: No, sir.
RICK HUBBARD: And, Judge, just because Mr. McGuire has been able to ask questions in another trial doesn't make it right. That is not binding, this is a Supreme Court case, it is binding. I don't think you get to self-declare something as a category of cases. I have never heard that before. We are getting to the facts of this case in saying, can you give death in this case or would you give death in this case and not life. That is improper.
BOYD YOUNG: Your Honor, we have given up the copy of United States versus Johnson which is 366, F.supp 2d 822 which goes into great detail about whether or not there is certain categories of cases that the defense must be presented. Be allowed to voir dire on to determine whether jurors are impaired. There are a lot of jurors who say to me the only appropriate penalty for somebody who is convicted of murder of a child is the death penalty. We have to be allowed to ask that and ferret that out. In Blackwell which is a case involving the death of a child, we ask for you, does the death of a child make you automatic death penalty. In Daise, the case involving the death of a child we asked every Juror for you, does the fact that a child was killed, does that make you automatic death penalty. That is what I am trying to ask.
THE COURT: You ask that, that sounds a whole lot different than the question you asked. How do you propose to ask that question. Reask it again.
BOYD YOUNG: Understanding what murder is and the Defendant would have to have been found guilty by a jury beyond a reasonable doubt. Some people say in a murder case involving child victims that the only punishment for them is death penalty. Is that you.
RICK HUBBARD: Judge, what is not fair about that, is it takes out the legal aspect. Now you are just talking to the guy like you are sitting in a cafeteria saying, where are you on this. And if you break it apart from the duty that he has already said he would follow, you are not being fair to the Juror. You are not getting an honest answer. His feelings may be one thing but that is never the question, come in here and say I am going to follow the law.
THE COURT: I understand. Y'all are saying the same thing over and over.
BOYD YOUNG: The State is going to say, I understand that is your feelings, will you put that aside and that is going to be their voir dire. But I am entitled to explore his feelings now and at the point of conviction for the murder of children. How does he feel about the death penalty. That is what I am asking to explore. There is nothing wrong or forbidden about any of that. There is no case that says you can't ask jurors about categories of cases that they, cause them to be automatic death. As a matter of fact, the one case, South is a case that predates the United States Supreme Court case of Morgan versus Illinois. And in Morgan, and I understand, nobody reads much into dissents. But, Judge Scalia, when talking about Morgan in his dissent says that he encourages the Court to adopt views that jurors should be able to have the view that certain categories of cases should be appropriate for automatic death penalty. For instance, rape and murder. He thinks a Juror who has thought that anybody convicted of the rape and murder should be allowed to sit, even if they thought the only appropriate punishment was death for that category of case. And the United States Supreme Court specifically objected that rationale and said no. There are categories of cases where jurors have these views and that Juror should not be allowed to sit. And they can't sit, if they are biased and if they can't fairly consider both punishment options in a certain category of cases like the murder of children they should not be allowed to serve.
THE COURT: Why wouldn't you, say you want to delve into the biases and then, is the same question, different worded. Do you think the only appropriate punishment is death, the State proves the murder of children.
BOYD YOUNG: I thought, that is what I am trying to ask, Your Honor.
THE COURT: You have not used those words.
BOYD YOUNG: I am happy to use those words.
THE COURT: Do you think the only appropriate punishment is death, is the murder of children.
RICK HUBBARD: I would suggest this. Can you be fair and impartial in a case involving the murder of a child. Why not that.
BOYD YOUNG: Because you are not talking about penalty.
THE COURT: I like my question better.
RICK HUBBARD: How about this, can you consider life or death in a case involving murder of a child. Can you consider--
BOYD YOUNG: I like the Court's question better.
RICK HUBBARD: That would not be objectionable to me. Can you consider life or death in a case involving the murder of a child.
BOYD YOUNG: Your Honor, if I may.
THE COURT: Yes, sir.
BOYD YOUNG: Morgan versus Illinois, 504, US 719.
THE COURT: I have got it.
BOYD YOUNG: I am going to read a very short section.
THE COURT: Don't read fast.
BOYD YOUNG: Starting at 735, or substantially impairing their duties in accordance with their instructions and oath. But such jurors, whether they be unalterable in favor of, or opposed to the death penalty in every case by definition are the ones that cannot perform their duties in accordance with law. Their protestations to the contrary notwithstanding. As to general questions and fairness and impartiality such jurors could in all truth and condor respond affirmatively. Personally confident that such dogmatic views are fair and impartial while leaving specific concern unprobed. More importantly however the belief that the death penalty should be imposed ipso facto upon conviction of a Capital offense reflects directly on that individual's inability to follow the law. Any Juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. See Turner versus Murray, 476, US at 34-35, 106 Supreme Court. It may be that a Juror could in good conscience swear and uphold the law and yet be unaware of maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A Defendant on trial for his life must be permitted to voir dire to ascertain whether his prospective jurors function under some misconception. The risk that such jurors may have been impaneled in this case and infected petitioner's Capital sentencing is unacceptable in light of ease of which that risk could have been minimized.
THE COURT: That is hard to digest when I am still focused on your question. Y'all keep reading cases. I can read cases myself. I like the State's suggestion. Can you consider both, life without parole and death as punishment if the murder involved a child or children. Let's bring the Juror back in. You may have a follow-up question. So you believe that, the only appropriate punishment is the murder of children. I think the leading question, can you consider both, life or death when the murder involves children. To be the better leading and then the answer, may be entitled to a follow-up.
RICK HUBBARD: Judge, before he comes back in. I agree with how you are suggesting that. There was reference as a father of two. I don't think that he cam make that, he brought that up, the Defendant brought that up.
THE COURT: I don't think Mr. Young's question say, involve your children. He didn't say anything about that.
RICK HUBBARD: I may have misheard. I know the Juror brought up he is a father of two. I just want to make sure we don't have that embedded in the question.
THE COURT: I did not notice anything like that, your two children, I didn't see any of that, kind of relating to the Defendant, I mean the potential Juror himself.
BOYD YOUNG: If it is all right with the Court, I am going to back up a little bit. Let's talk about murder, what murder is, how do you feel about the death penalty. Then we have aggravation. These are aggravators, the State has to prove beyond a reasonable doubt. How do you feel about the punishment.
THE COURT: Take a shot at it.
BOYD YOUNG: All right.
THE COURT: Bring him to me. (Whereupon, the Juror enters the courtroom at 5:00 p.m.)
THE COURT: Mr. Young is still going to question you a little bit.
By Mr. Young:
BOYD YOUNG: I was talking to you a little bit about the definition of murder in South Carolina. You recall that?
JUROR: Yes, sir.
BOYD YOUNG: The intentional of murder of another with malice aforethought?
JUROR: Yes, sir.
BOYD YOUNG: And the Judge explained to you what malice was, hatred, ill-will, evil intent, right?
JUROR: Yes.
BOYD YOUNG: And you understood that you, in order to find somebody guilty of murder, jurors would sit and they would listen to all of the facts and circumstances involved in the case, right?
JUROR: Yes.
BOYD YOUNG: And all the defenses involved in the case?
JUROR: Yes, sir.
BOYD YOUNG: And whether or not the defense wanted to say insanity or whether the Defense wanted to say it was an accident or the Defense wanted to say it was insane. The jurors would have heard all of that evidence. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And when they determine that somebody was guilty of murder they would have rejected all of that evidence, right?
JUROR: Yes, sir.
BOYD YOUNG: They would have said we are convinced beyond a reasonable doubt that this person is guilty of murder. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And that means that they intentionally chose to kill an innocent person. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: With malice aforethought, they meant to do it and knew what they were doing, guilty, guilty. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: My question to you is, for you, how do you feel about the death penalty as being the only appropriate punishment for that guilty murder?
JUROR: I don't think it should be the only. You know, I support life in prison too. But I do believe in the death penalty too.
BOYD YOUNG: Can you tell me some more about that, why do you think that life should be on the table for that guilty murder?
RICK HUBBARD: Your Honor, may we approach.
(Whereupon, a bench conference was held.)
BOYD YOUNG: There are no right or wrong answers. What would make a difference to you between determining death or life without parole as an appropriate punishment for a guilty murder.
JUROR: I would think remorse.
BOYD YOUNG: If they are remorseful?
JUROR: Yes.
BOYD YOUNG: Anything else?
JUROR: Just remorse.
BOYD YOUNG: If that is all you can come up with that is fine. The life penalty, life without the possibility of parole. Do you think that is a serious penalty?
JUROR: Yes, you are locked up the rest of your life, serious. It not as serious as the other. It is serious because you are locked up the rest of your life.
BOYD YOUNG: It is a serious enough punishment for some, for a guilty murder?
JUROR: I think it is if the person is remorseful and realize what they have done and sorry for it and shows the passion that they are sorry for it. Not taking, you know, saying, it has got to be, they just have got to be remorseful, they have got to be sorry for what they have done. Then it is still murder but, you know, behind bars and stuff the rest of your life.
BOYD YOUNG: I think I understand where you are coming from. Thank you for sharing your thoughts with me. I am going to add more thing to this guilty murder. Okay, you are with me on guilty murder. Right. And then the State has to prove to the satisfaction of all the jurors beyond a reasonable doubt this thing called an aggravating factor. Okay, are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And that is, if the State proves an aggravating factor then the jury is entitled to consider life without parole or the death penalty. Now, in this case the State has alleged aggravating factors, those being multiple murders and the death of children. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Now, my question to you, if the State proves beyond a reasonable doubt the murder of children, multiple children, does that make you think that the death penalty is only appropriate punishment or not?
JUROR: It goes back to me supporting the death penalty.
BOYD YOUNG: Yes, sir.
JUROR: I can't change my beliefs.
BOYD YOUNG: No sir, I can't change your beliefs. Nobody is trying to question--
JUROR: No reasonable doubt, all the evidence is there and it is proved murder. I believe it should be the death penalty.
BOYD YOUNG: Okay. That is just where you are coming from?
JUROR: Yes, sir.
BOYD YOUNG: I understand that and nobody is here to challenge that or question that. Okay. It sounds to me like, in that case, murder, no question, beyond a reasonable doubt that you are more of a type one Juror where for you death is the appropriate punishment.
JUROR: With all of the evidence they are saying.
BOYD YOUNG: That they are guilty?
JUROR: Yes.
BOYD YOUNG: Right.
JUROR: Without a reasonable doubt you are guilty. If there is reasonable doubt in there that is going to change my mind. I am not saying I am going in there saying, you know, death penalty. I am not saying that. I am saying if all the evidence is there then without a reasonable doubt, boom, I support the death penalty.
BOYD YOUNG: I understand. And given that you would vote for the death penalty?
JUROR: If all the evidence is there, yes sir.
BOYD YOUNG: Now, the Defense would present you stuff that the Judge talked to you about, about mitigation.
JUROR: Yes, sir.
BOYD YOUNG: Any reason for a life penalty, right, what you understood the Judge's definition, right?
JUROR: Yes, sir.
BOYD YOUNG: Things about how a person grew up, how they were raised, what their circumstances in life were.
JUROR: Yes, sir.
BOYD YOUNG: That stype of stuff, it doesn't have anything to do with did they do it, did they not do it, right?
JUROR: Yes.
BOYD YOUNG: That stuff is not going to take you from death penalty to saying life because they had a bad childhood?
RICK HUBBARD: Your Honor, we have gone so far afield, can we have another meeting.
THE COURT: I am going to put you back in the hall. (Whereupon, the Juror was excused from the courtroom.)
RICK HUBBARD: This is exactly what I am, was talking about. You have got a man who said he wanted to hear everything, he wants to hear both sides and you allow a Juror to be asked a question about something he really has no knowledge about, he has no knowledge of the law, he hasn't heard any mitigating circumstances and now he says, I am for the death penalty. And in this case, yes, because now he is thinking about murder of kids and nothing else. That is why it is unfair, that is why it is just a bad line of questioning. Judge, he hasn't heard anything about mitigating circumstances. He has been asked about aggravating circumstances and then he was led right down the primrose path. He knows nothing about this law, nothing about this process. It is absolutely, patently unfair to this Juror. He said repeatedly, I want to be fair.
THE COURT: Mr. Young, when you got to the question about mitigating factors, why is that a fair question?
BOYD YOUNG: I think in addition to him being biased in favor of the death penalty for somebody who has been convicted of murder he may or may not be somebody who is unable to give meaningful consideration to mitigating factors as instructed by the Court.
THE COURT: I don't know this but I think he is mixed up, reasonable doubt and mitigating factors in listening to his answers.
BOYD YOUNG: I think he is very clear that once he has said, beyond a reasonable doubt, they are guilty of murder, murder is what you said it is, it is the death penalty for me all the time, that is what it is.
THE COURT: You are listening for that, I am listening for, can I be fair. I am hearing one thing but I understand what you are listening for.
BOYD YOUNG: He said that is who I am. And he said you don't have the words to change my opinion. I am in favor of the death penalty.
THE COURT: How many times are you going to ask that.
BOYD YOUNG: I didn't get to finish the question on one.
RICK HUBBARD: That was the problem. Basically he walked him in to, I am a number one unfairly. When this guy is saying I want to hear both sides, I want to hear everything. And he kept saying reasonable doubt. Judge, he is not a lawyer.
THE COURT: He has not been instructed on the law. He knows some words.
BOYD YOUNG: He says once murder is proven to me beyond a reasonable doubt the death penalty is the only appropriate punishment.
THE COURT: Could you, would you follow up with mitigating factors out there, consideration of those factors.
BOYD YOUNG: That was the question that I asked when Mr. Hubbard stood up and started giving another speech.
RICK HUBBARD: I am going to object to that. I am trying to make sure I get fair jurors too. Five dead children deserve a fair trial too.
THE COURT: I agree.
RICK HUBBARD: If I get riled up about that I have got a right to.
THE COURT: Y'all both do, you both are very zealous.
RICK HUBBARD: Judge, the problem was he focused on murder and then aggravating circumstances and led him right into--
BOYD YOUNG: What else do you focus on when you are asking somebody about their penalty views.
RICK HUBBARD: Judge, we have gone over this repeatedly, the balance, the balance.
THE COURT: I want balanced, that wasn't very balanced. Ask another question and please don't read me case law. Tell me the case but don't read that back to me. We need to move forward and explain the mitigating factors to this gentleman. Mitigating factors may be proven, would you give consideration to that. I think that is how you need to go forward. I am not going to suggest a question to you. That is all I can suggest to you. How many times do you need to ask him and, a type one, you did it twice. You get to the magic number four and you then, you are going to say, Judge, he is not qualified. I mean, I want you to explore it fully but let him answer the question rather than you giving him a leading question every time. And I know that is hard to do.
BOYD YOUNG: I will do my best.
THE COURT: Bring Mr. Hall back in.
(Whereupon, the Juror entered the courtroom.)
BOYD YOUNG: Like I have said in the past, there is nothing wrong with anything that you say. Okay. I use wrong words sometimes so you just got to tell me who you are about these things. Okay. And I understood you to say somebody prove beyond a reasonable doubt murder, guilty, guilty. For you the appropriate punishment is the death penalty?
JUROR: Yes, sir.
BOYD YOUNG: Now, understanding that the defense will have an opportunity to present to you what is called mitigation. Now this is after somebody has been found guilty of murder, right?
JUROR: Yes.
BOYD YOUNG: And the State has proven an aggravating circumstance beyond a reasonable doubt. Okay?
JUROR: Okay.
BOYD YOUNG: Then the Defense will have an opportunity to present mitigation. And that is stuff about a Defendant's background and character. Does that stuff matter to you in deciding what the punishment is?
JUROR: That is coming back from their childhood and stuff?
BOYD YOUNG: Yes, sir.
THE COURT: That is a good question.
JUROR: I am probably going to answer this wrong.
BOYD YOUNG: There is no wrong answer.
JUROR: I think everybody can better themselves from what they grew up in no matter the circumstance. But by saying that I think it can lead you in your adult life to make bad decisions the way you were raised, your actions, your attitude. I believe that because I am guilty of some of things I was raised at and my adult life. So I think that it makes, it would make a difference of my opinion, it is according to what it is. But I still stick with, I think you can better yourself through your life no matter what you went through if it is with professional help or whatever. I believe you can help yourself. It is probably not what you wanted to hear.
BOYD YOUNG: It is exactly what I wanted to hear. I am just asking you, does that get you off of death or not?
JUROR: It goes back to you can, I don't think it does. No, sir.
BOYD YOUNG: Let's talk about how this whole process works. Okay?
JUROR: Okay.
BOYD YOUNG: We talked about aggravating factors being proven by the State. Those factors have to be proven unanimously to each Juror, to all jurors unanimously beyond a reasonable doubt. Do you understand what I am talking about on that?
JUROR: Yes.
BOYD YOUNG: Mitigating factors are different. They don't have a specific burden of proof. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: It is up to each Juror for himself or herself to decide what is mitigating to them. And they are allowed to give it whatever weight they want to. One Juror might think a good relationship with his father. That is mitigating to me and I want to give that mitigating factor the weight of life, that is fine, that is perfectly allowed under the law. Do you understand what I am saying?
JUROR: Yes, sir.
BOYD YOUNG: And another Juror might say, I didn't see that but I saw a different thing that matters to me and I want to give that thing the weight of life. That is perfectly okay. You have different reasons, they don't have to agree, they don't all have to agree. Okay.
JUROR: Okay.
BOYD YOUNG: And some jurors might say, I don't have a reason, no reason at all. I just feel like I want to give a life penalty. The law is okay with that too. Do you understand me on that?
JUROR: Yes, sir.
BOYD YOUNG: What we call this decision about whether or not a person lives or dies, we call it an individual moral judgment. Sort of a fancy word, do you understand what I mean when I say individual moral judgment?
JUROR: I think so.
BOYD YOUNG: The best way I know to describe is and how it has been described to me is like you have made choices about your faith and your beliefs and how to raise your kids. Those are personal moral decisions that you have made for yourself. Is that correct?
JUROR: Yes.
BOYD YOUNG: And do you recognize and other people may have made different moral decisions about that.
JUROR: Yes, sir.
BOYD YOUNG: And you respect their right to make a different decision other than yours?
JUROR: They are allowed to have different opinions and make different decisions.
BOYD YOUNG: And you respect them to respect your right, to your own individual moral judgment.
JUROR: Sure.
BOYD YOUNG: And in this decision making about whether or not a person lives or dies, if somebody arrives at their individual judgment and they are bullying, yelled at or told their opinion is stupid or they have to change it would you stop that?
JUROR: Yes.
BOYD YOUNG: Because that would not be right.
JUROR: That would not be right.
BOYD YOUNG: The law is that these proceedings are suppose to be conducted with decorum and decency. Right?
JUROR: Yes, sir.
BOYD YOUNG: And the decision about whether or not a person lives or dies should be made that way?
JUROR: Yes.
BOYD YOUNG: You understand, if all twelve jurors making their individual moral judgments, if twelve jurors arrive at twelve votes for death penalty then death is going to be the appropriate sentence?
JUROR: Yes.
BOYD YOUNG: And the death sentence would be carried out and Mr. Jones would be executed?
JUROR: Yes.
BOYD YOUNG: Now if one Juror says--
RICK HUBBARD: Your Honor, this, we have gone over this. I have let it go but you know what is coming next and we already have discussed it, you have already ruled. I hate to keep standing up.
THE COURT: I don't know the question he is about to ask.
RICK HUBBARD: I can't even--
THE COURT: I don't know the question he is going to ask but you are anticipating a question.
(Whereupon, a bench conference was held.)
THE COURT: If you can step out in the hall, please. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, it would be the Defense's position that we are absolutely entitled to ask jurors or explain to jurors what the meaning of, what the result of a non-unanimous verdict is. It is totally appropriate to ask them that, it is totally appropriate to ask them, do they understand and can they respect that if one Juror votes for life then the penalty will be life. I am happy to do it the way that other Judges have ask that it be done is that you have to say when they don't agree then the Judge takes the case and sentences to life. That is what the statute is, it is just telling the jurors the truth about how sentencing works and that is what we are entitled to do and explain to them and make sure that they can follow the law in that regard.
RICK HUBBARD: Judge, absolutely not. You cannot put a poison pill in the process and say, hold out and take what eleven other people think. You cannot do that. It is absolute inappropriate. You are educating them which is contrary to Poindexter on trying to, basically you are using this process to educate them on your position and also to get them in your persuasion and trying to get him off of this jury. This is a man who starts out, I want to be fair--
THE COURT: We don't have to go back through the testimony. I don't think you are allowed that question.
BOYD YOUNG: The poison pill is allowing--
THE COURT: You have asked him, can you respect an individual moral judgment of others. Yes. And you expect them to respect yours also. Yes. I think it stops there.
BOYD YOUNG: I think we need to go a little further and that they need to understand that there is no such thing as a hung jury.
THE COURT: He has explained to you what his answers are. I don't think we need to get into hung jury right now. I really don't.
BOYD YOUNG: The poison pill is allowing jurors to deliberate under the false belief that we, they don't arrive at a unanimous decision that the case has to get retried. And that is not true and they have to be told that that is not true.
THE COURT: You ask him if he can respect moral judgment of others. And he said, yes. I think it ends there. You can give me a case that is different but let's move on with him. I am getting close to the end of the day. When we get done with him that will be the end of the day. Let's get him back.
(Whereupon, the Juror came into the courtroom.)
BOYD YOUNG: We are talking about individual moral judgments, about who lives and who dies. You recall our conversation about that?
JUROR: Yes.
BOYD YOUNG: The question for you, can you respect another juror's right to say, I don't know why it is right for me and it is hung in a vote even if it is different than your vote?
JUROR: Absolutely.
BOYD YOUNG: At the end of the day in making moral decisions is it okay to agree to disagree?
JUROR: Absolutely.
BOYD YOUNG: That's all the questions I have. I do apologize back and forth.
CROSS-EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Hall, I am that guy that keeps jumping up and every time I do you walk out of the room and I am sorry too. I know it has been a long day for you.
JUROR: It's all right.
RICK HUBBARD: I want to follow-up on a few things. When you were talking to the Judge and also the Defense Counsel, I think I heard you say you want to hear all the facts?
JUROR: Yes, sir.
RICK HUBBARD: When it comes to determine whether somebody is guilty or not you want to hear everything?
JUROR: Yes, sir.
RICK HUBBARD: You don't want to jump the gun and come in here with your mind made up based on something you heard outside of this courtroom. Is that correct?
JUROR: Yes, sir.
RICK HUBBARD: And you understand jurors have to base their decision on what happens in this courtroom?
JUROR: Yes, sir.
RICK HUBBARD: It is unfair to ask you questions about what you might do because you don't know the facts, do you?
JUROR: No sir.
RICK HUBBARD: You probably agree with me, you don't, you haven't been given the law either?
JUROR: No, sir.
RICK HUBBARD: It is hard to ask you what you would do on a case?
JUROR: Yes, sir.
RICK HUBBARD: Bottom line is you want to hear everything?
JUROR: Yes, sir.
RICK HUBBARD: And you base your decision on the laws as the Judge gives it?
JUROR: Yes, sir.
RICK HUBBARD: And now the Judge talked about three types of jurors and you said you were that third type?
JUROR: Yes, sir.
RICK HUBBARD: The Juror that wanted to hear both sides and anything in aggravation or mitigation in this case, you want to hear that before you made a decision?
JUROR: Yes, sir.
RICK HUBBARD: And that you could consider life or death when it is a murder case. Is that a fair statement?
JUROR: Yes, sir.
RICK HUBBARD: Is that still a fair statement to you, you can give life or death based on what you hear?
JUROR: Yes, sir. It goes back to, I feel like for the remorse, feeling sorry for what you have done.
RICK HUBBARD: Well, let's follow-up on that. Now, you were asked about mitigation. I don't know, the Judge may have read off some types of mitigation that could come up in a case. Do you remember what he read or what he said to you at the beginning. It has been a long day, hasn't it?
JUROR: Yes, sir.
RICK HUBBARD: So you would agree, it is kind of unfair to say anything that might be helpful for the Defendant, we leave that up to you to figure out what that is. That you have got to figure out, okay, what are y'all talking about when you talk about mitigation. Do you understand what I am saying?
JUROR: Yes, sir.
RICK HUBBARD: Would you agree that when I talk about mitigation evidence that you need the Judge's help on that?
JUROR: Absolutely.
RICK HUBBARD: Absolutely. Now, if I were to tell you evidence and aggravation are things that make the murder seem worse.
BOYD YOUNG: Objection, improper definition of aggravation.
THE COURT: I will allow it.
RICK HUBBARD: And if I said mitigation might be things more favorable to the Defendant in a murder case.
BOYD YOUNG: Objection, improper definition of mitigation.
THE COURT: Voir dire, I will allow it.
RICK HUBBARD: Do you understand that. Some things are good, some things are more helpful to the Defense, some things may be more helpful to the State.
JUROR: Yes.
RICK HUBBARD: Now, before you made a decision would you want to hear all of those things?
JUROR: Yes, sir.
RICK HUBBARD: Would you want to consider all of those things?
JUROR: Yes.
RICK HUBBARD: You would agree, death is a huge decision to make, is it not?
JUROR: Yes, sir.
RICK HUBBARD: So, in coming into a case where you don't know any facts. You would want to hear everything about evidence on guilt or whatever other verdict is possible, right?
JUROR: Yes.
RICK HUBBARD: And if this, you have a case and the verdict is guilty of murder. Beginning of this questioning with the Judge, I think you said you would want to hear from him what aggravating and mitigating circumstance are? Is that correct?
JUROR: Yes.
RICK HUBBARD: And you understand, for aggravating circumstances, that is something that the State has to prove beyond a reasonable doubt.
JUROR: Yes, sir.
RICK HUBBARD: That mitigation are things that may be helpful to the other side in considering life after the murder conviction. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: You would want to hear that?
JUROR: Yes.
RICK HUBBARD: And I ask you that because you don't even know what those are yet, do you?
JUROR: I want to hear both sides.
RICK HUBBARD: Sure, sure, sure. And that is going to come from that side as well. And so you will hear evidence from the State, you may hear things from the Defense and you are going to want to hear those things.
JUROR: Yes.
RICK HUBBARD: And I believe you said, early on, everybody deserves a fair trial?
JUROR: Yes.
RICK HUBBARD: And that you would want to hear everything before you make, issued a verdict?
JUROR: Yes.
RICK HUBBARD: You would want to hear everything before you issued a sentence?
JUROR: Yes.
RICK HUBBARD: I know it has been a long day and we are all kind of tired but I know you have got to be from getting up and walking out all of this time. But although you have discussed with the Defense about this one issue of, I believe you called it remorse. There may be other things that you might want to hear that you didn't even think about. Is that fair?
JUROR: Yes, sir.
RICK HUBBARD: So do you think it is possible that by listening to the Judge you may go, you know what, there are some other things I might need to consider on behalf of the Defendant.
JUROR: Yes, sir.
RICK HUBBARD: Do you hold that possibility there?
JUROR: Yes, sir.
RICK HUBBARD: And if they are there would you consider those things before you issue a verdict or sentence?
JUROR: I would.
RICK HUBBARD: Do you think that would be the fair thing to do?
JUROR: I think so.
RICK HUBBARD: And that is all we can ask. So no matter what, as we go through this process is it your goal to hear both sides and to be fair?
JUROR: Absolutely.
RICK HUBBARD: And if a man is convicted of murder you could consider both, death and life?
BOYD YOUNG: Objection, leading.
RICK HUBBARD: Could you consider both, death and life?
JUROR: Yes.
RICK HUBBARD: Okay.
THE COURT: The question is sustained and you rephrased it. Your objection was sustained.
RICK HUBBARD: Mr. Hall, I think that is all we can ask you, to be a fair Juror. Thank you.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young.
BOYD YOUNG: I am going to follow-up with you on one area. I just want you to clarify for me where you are in your opinion. Okay?
JUROR: Okay.
BOYD YOUNG: My understanding was for you, once you determined that someone is guilty of murder, knew what they were doing, guilty beyond a reasonable doubt, all the facts show that they chose to kill an innocent person--
RICK HUBBARD: I am objecting on this, I really am.
BOYD YOUNG: Your Honor, I object to him, if he has an objection, he needs to speak the grounds. He is arguing on his objections.
RICK HUBBARD: I am stating an objection so I don't make a speaking objection.
THE COURT: I think it has been asked and answered but I haven't heard the question quite yet. Let me hear it.
BOYD YOUNG: My understanding from you was that your opinion was that the appropriate punishment was, that the death penalty was the appropriate punishment. Your response to Mr. Hubbard was it can be death or life. Can you tell me what is the difference?
JUROR: Because when he said about the other jurors, could I, with the other jurors, have their opinion, we can discuss and have our discussion as jurors and come to an agreement because I value their opinion just like I would like for them to value mine. So if we, as a jury, came to the decision of life and not death, and this is something that is not going to happen in two minutes, if we came to that decision I respect their opinion. This isn't something that will be, hey, I think it should be life. And I said, okay, no, we are going to sit here and we are going to go through this stuff and discuss it and then if we all agree that, okay, life in prison. Just because I believe in the death penalty don't mean, I am not saying that is my only, it is not my only, I am just not saying, you know, die.
BOYD YOUNG: Sure. I understand. I need you to correct me if I am wrong. I am not trying to put any words in your mouth and I am not trying to lead you in any way. Okay.
JUROR: Okay.
BOYD YOUNG: Are you telling me your opinion, your personal opinion would be that the death penalty would be the appropriate penalty.
RICK HUBBARD: Asked and answered.
THE COURT: He has answered that. He can answer it again.
JUROR: Yes.
BOYD YOUNG: Okay. And that other jurors might be able to talk you out of that opinion or-
JUROR: Not talk me out of it. We can discuss it and look at all the evidence. And if there is remorse or anything in that that is going to come into play. If this person feels sorry for what they did, yeah.
BOYD YOUNG: Are you saying you would give up your opinion to go along with the other jurors?
RICK HUBBARD: Asked and answered. Asked and answered.
THE COURT: I think that has been asked and answered.
BOYD YOUNG: This is the Bennett question, Your Honor.
THE COURT: The what?
BOYD YOUNG: The Bennett question.
RICK HUBBARD: And it has been asked and this Juror has answered. Mr. Hall has answered it.
THE COURT: Rephrase and ask it.
BOYD YOUNG: I understand your opinion and I appreciate you explaining to me how it would work with the jury. My question to you is, would you give up your opinion to go along with the other jurors to arrive at a verdict.
RICK HUBBARD: Asked and answered.
THE COURT: Let him answer it.
JUROR: We would discuss the facts and the evidence and then come to an understanding of what everything is and then we would discuss more. If it lead more to life in prison without parole, as a group, we would discuss that and come to a conclusion. I am not selling myself out, I am not selling my beliefs or my opinion out. We are coming together as a group.
BOYD YOUNG: You are open to changing your opinion?
JUROR: If the evidence is there and the remorse is there, yes.
BOYD YOUNG: So you would start at death.
JUROR: I start nowhere, I am not starting nowhere because I don't know none of the evidence so I am not starting nowhere.
BOYD YOUNG: Okay. Thank you.
RICK HUBBARD: Mr. Hall, I have no further questions, thank you so much.
THE COURT: Step in the hall and I will have you back in here in a minute. Fair enough. All right. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, the Defense would move to challenge Mr. Hall for cause. He repeatedly and in response to non-leading questions says that in his opinion the appropriate punishment for somebody convicted of murder is the death penalty. The only time that he could even consider a life penalty is if the Defense was able to prove to him remorse which is not one of the statutory mitigators. He says he can get together with other jurors and maybe they will arrive at a decision for a life penalty but he never said that his opinion wasn't that after a conviction for an aggravating murder that appropriate punishment was death. I said, is that who you are and he said, I am just going to tell you who I am. For me, if all the facts are there and they are guilty beyond a reasonable doubt the appropriate penalty is death. Now if they get remorseful I will give that consideration. But to me other things, bad childhood, a lot of people pull themselves up from bad childhoods and that was not stuff that he was able to give meaningful consideration to. Judge, Mr. Hall is not a close call. And the only time he ever said he would even consider life is in response to leading questions for the State. Every time he was asked an open question about his opinion, his opinion was that the death penalty was the appropriate punishment. He is substantially impaired in his ability to follow the law and he should be excluded under Morgan and I will leave it there.
RICK HUBBARD: Your Honor, the totality of his entire responses including the responses I gave Your Honor. He came into this courtroom saying he was a type three because he wanted to hear all the facts, all the aggravating and mitigating circumstances. He didn't know what those were but he wanted to hear everything. Your Honor has heard, even when we played it back he wanted to hear both sides. He wanted to hear all the facts. your Honor, the danger of what happened with Mr. Hall is here comes a man off the street trying to be a good citizen. He has asked questions about stuff he has no knowledge about and then he is trapped. When we talk about mitigating factors, he didn't know what those were. So he was left to come up with one on his own. What do you think. And it is on the spot. How incredibly unfair is that, took the Legislature forever to come up with a list that we use. But on the spot this man is suppose to come up with whatever that means with no instruction.
And now, by gosh, he stuck to it. Now, what he told me was that he didn't know what else might be out there, there may be something else that he would want to hear. But no matter what he wanted to hear both sides. And, Judge, towards the end, with these last questions he came right back to where he had been when he started. The evidence has to be there. Can you vote for life, yes, if the evidence is there. And I am not starting anywhere, he is not starting out for death. Judge, it is just patently unfair to this Juror and any subsequent jurors who come in there to put that line of questioning to them and then trap them. All of the guys, we are just trying to feel out what they feel, figure out what they feel. The totality of his responses just shows he is trying to listen, he wants to listen to both sides, he understands the gravity of this situation and he is not someone who would always vote for death. I think he is an appropriate Juror for this case.
BOYD YOUNG: Your Honor, Mr. Hall was clear. The only way he would consider life is to put the burden on the Defense to prove remorse as a mitigating factor. And that is the only time that, said he would be open to a life penalty for somebody who had been found guilty beyond a reasonable doubt of murder. That is a burden shift that places the burden on the Defense that doesn't exist. And for both of those reasons he should be excused. Your Honor is aware even one Juror who is improperly is, causes a case to get reversed and has to be retried. Mr. Hall is not the close case. This is not something who waffled and said, well, maybe life, maybe death. Mr. Hall, when asked how he felt about the appropriate punishment for somebody convicted of murder, said listen, I am just going to tell you who I am and maybe I am telling you the wrong thing. Maybe I am saying something I shouldn't say. I said, no, just tell us how you feel. And he said, for me, if there is guilty, guilty beyond a reasonable doubt the appropriate punishment is death. That is just who I am. And that is what he said over and over.
THE COURT: No, he didn't say over and over. I don't think so. He said it but you kept going back and asking. And he interrupted and I was trying to not let him answer and he said, no, I don't. He said something to challenge your question.
BOYD YOUNG: He did, he did. He said it was his personal feeling that he would talk and discuss it with other jurors.
THE COURT: So you start with death penalty, no.
BOYD YOUNG: He did say that.
THE COURT: He said that.
BOYD YOUNG: But when asked about how he felt about the appropriate punishment for somebody who is convicted of murder he said, who I am is--
THE COURT: No, he also said something about who I am and I am just going to tell you, you might not want to hear it. He then went into that lengthy thing as people, something happened in a childhood and how they are raised and that can impact the decision he makes as an adult. He went through something similar to that when that question was asked also.
BOYD YOUNG: He did. And it didn't change, and when asked would that stuff change your opinion about death and he said, and he thought very hard about it. He leaned back, he took a moment, he closed his eyes and--
THE COURT: I don't need all of that.
BOYD YOUNG: The record needs it, Your Honor, the record does--
THE COURT: I didn't see him close his eyes.
BOYD YOUNG: He leaned back, he thought about it and he took a big pause and he said, no, it doesn't change who I am. For me death is the appropriate punishment.
RICK HUBBARD: Your Honor, for the record, my standpoint, I didn't see this big dramatic moment. He thought about the question but he was thinking about his answer when I was up there too. He was trying to answer honestly.
THE COURT: I think he was very candid. I think the totality of his questions and, answers to the questions y'all gave him is he should be qualified because he wants to hear the facts and circumstances and it was very clear to me that the didn't know much about the law and mitigating factors, things you might change. Isn't that one of the things y'all asked me to make certain the mitigating factors to be read were, even things that aren't statutory listed but you would consider. Remorse would be one of those, not statutory but at the bottom of the page of that list. Is there any reason whatsoever. He would consider remorse. So I think he is qualified, I find him qualified.
BOYD YOUNG: Your Honor, we object under the Sixth, Fourteenth Amendment and think that qualification of Mr. Hall is impaneling a Juror uncommonly willing to sentence a man to death in violation of the United States and South Carolina Constitution.
THE COURT: Your record is protected. Hope, what will be the instruction to Mr. Hall.
COURT CLERK: Tell him we will put an email out to the qualified jurors, are to report or to continue to call back until we get all qualified.
THE COURT: Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Hall, I have determined that you can be a potential Juror in the case. That does not mean that you will be seated. There will be a group that the lawyers will select a panel from and you will be included in that group. So in order for you to keep up with what is going on and how fast things are moving along, check the website Thursday night. You are a potential, qualified Juror. You are qualified and check the website. Follow the instructions. Now, until such time you are still under oath, don't talk about the case, don't let anybody talk to you about the case, you are not to peruse, do any independent research, avoid news broadcast. I want you to stay free and clear of that. When you come back I will ask, kind of go through that, if you have done any research, see any news accounts. You are under oath to do that. All right.
(Whereupon, the Juror was excused from open court.)
THE COURT: I will adjourn for the evening. We will start in the morning and 9:15.