3.Penalty-Phase Photograph Admissibility Hearing
23 linesROBERT MADSEN: Judge, we would move to bar the State from entering any photographs into evidence of the victims post-mortem during the penalty phase. There are multiple basis obviously for that. First of all, we do not believe that the introduction of those photographs are necessary to substantiate any material facts or conditions during the penalty phase and, therefore, irrelevant under 401, 402. Certainly, we also believe under 403 that those photographs are inadmissible. Obviously, I think you have two sets of photographs there. You have the ones that would depict the recovery of the children's bodies from the logging road. And then, secondly, obviously, the bodies at the autopsy. To kind of use the Solicitor's words that he said, they would just be redundant. They don't need them to prove statutory aggravating. As Your Honor said, by their verdict, you know, there is multiple children and they are under eleven. They have proved that statutory aggravating circumstance. Therefore, certainly, they don't need those photographs to prove that and they are irrelevant because of that. Certainly -- and I don't know if Your Honor has seen those photographs or --
THE COURT: I've seen the five autopsy photographs, but not anything else.
ROBERT MADSEN: And, Your Honor, I would submit, I have done this 22 years, hundreds of murder trials, but they're the worst I've ever seen. They're just absolutely horrific. They are nightmarish. It would certainly add an element into the trial that would inflame the heat of passion. I mean, I don't know how you can't look at those photographs and they not get you mad, not get you upset. And they don't need those to prove an element in this case and, therefore, they should not be admissible. Obviously, I think if you look within the case law, State vs. Torres, 390 S.C. 618, which was a 2010 case. Even in that case, the Court kind of says hey, Solicitors, you might need to refrain from pushing the envelope on admissibility in order to just gain a conviction. And they even said those photographs in that case were kind of at the outer limits of what their law permits. I haven't seen those photographs, but I would bet good money that these are a hundred times worse than those.
Obviously, if you look at these photographs and take them, it's just simply -- there's nothing that can be gleaned from these photographs that help the trier of fact. So like I said, we do not believe that they are relevant. We certainly believe that under 403, they ought to be excluded because those photographs certainly would be calculated to arise sympathy or prejudice of a jury and they are not necessary to go to any substantial facts. I mean, the undue prejudice would deny Tim his due process rights. Additionally, Your Honor, I would say that those photographs are not relevant because the Court has previously ruled in the first phase that they were not. So the State can't turn around and argue now, hey, you know, that earlier argument of irrelevance -- I mean, basically, that's the law of the case. Your Honor made that decision. It is the law of the case. The State certainly didn't rule it was error at that point in time.
And the law basically says that the Court should not reconsider their earlier decision unless there's extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice. We do not believe that that is here. And like I said, Your Honor has ruled that those photos do not show the condition that Mr. Jones left the children in. And, in fact, if Your Honor will remember, there was testimony by Dr. Ross talking about black bags, the heat. I think there was some stuff about the accelerated decomposition. That is the law of the case, so they are certainly not relevant -- or certainly should not come in. Obviously, finally, we would argue judicial estoppel. Your Honor accepted the State's argument and an equitable concept of having them come in in this second phase and present a inconsistent position, which they previously asserted would be inappropriate. And it would be patently wrong to let them argue one position in the guilt phase and then let -- and argue the opposite position in the penalty just because it's beneficial to them now.
THE COURT: Now, wait a minute. Y'all both are doing that.
ROBERT MADSEN: We just believe that the use of those photographs would deny -- or would make Tim's sentencing aspect of this trial fundamentally unfair under the Fourteenth and South Carolina's due process clauses. Well, like I said, Your Honor, I mean, you have seen the photographs. I mean, they are the worst I've ever seen and I've been involved in hundreds of cases. And to introduce that arbitrary factor, so we do not believe they should be presented.
THE COURT: All right.
RICK HUBBARD: It's me again, Your Honor. Apparently, I missed that ruling where you held out all those photographs because I put in charts, diagrams used by Dr. Ross. I put in one photograph, the close-up of Nahtahn's leg showing that daddy cut on his knee post-mortem that corroborated his confession that of all the kids he decided to try to dismember, he picked the one he said was the focal point. Your Honor, this is a Capital case. The penalty phase, we're always allowed to put in photos because photos depict -- which depict the bodies of the victims in the same or condition he left them in -- or condition he left them to become in. We're always allowed to put that in. It's admissible because it shows the circumstances of the crime, the crime he committed. It shows his character, the work of his hands. Now, the fact he put them in bags and left them out in the hot sun, he did that deliberately. That shows his character. He knew it would enhance and speed up decomp. All of that is relevant.
And if he had wanted to intervene before then, he could have done something or he could have spoken to law enforcement on the night of the 6th and said, hey, I do know where the kids are, before they get in a much worse way. They had several days of just baking in the sun. He rode around with them in the back of his car. That shows his character. It shows the nature of the crime he committed. What I'd like to do, what I plan to do, with Your Honor's permission, pursuant to the law, which is very clear under a number of cases. I can read those into the record. But I'm going to have the officer at the crime scene, who is a lieutenant from SLED. He was there and he held that crime scene until CSI could get there. We have a short video that was taken so you can see how those bags were left. You can hear the bug life, Judge, in this wild area. You can hear it. He chose this spot. That tells you something about the Defendant. He chose to put them in bags. And they held them there.
And the he'll tell you about when CSI got there, it was later in the day. It was almost dark, how they had to hold lights. They marked them. They numbered them. And the meticulous process they took to put each bag on top of a body bag. Then he was the one that said, y'all know what we got to do next, we got to open them to verify there are babies in there, make sure this is what we're here for. He's going to testify to all that, Judge. That jury gets to see the open bag. It's just enough to identify a human remain. And then what happens there, it goes to Dr. Ross. And what is presented -- what will be presented, it's not a Y-cut incision, the typical thing you think of at autopsy, I'm showing how they arrived to her, the condition they were in when she got them. The case law is directly on point on that. At autopsy, condition the doctor receives them in.
And then she'll go through and explain, again, the cause of death, not the manner, which is to remind the jury of what happened and what she looked at, what she looked for. And she has always preferred to use photos to be able to talk about that, what she's looking at. And the difficulty, we'll explain the difficulty in explaining Nahtahn and Abigail and Merah's death because she ruled them homicidal violence. She can show here's why. Now you can see what I'm talking about. Look at the heavy state of decomp because that man left them in a position to decompose. This always comes in, Judge. I've got just an autopsy. There are 569 photos. I'm not putting all those in. I'm putting a few in for each child and anything specifically that she needs. I do plan on putting some things in in Gabriel's bag. Looks like most of Merah's clothing and stuff was in that bag. I'm going to bring that out. What did you find in the bag. Because that's different. Again, it shows this man is thinking about what he's doing with one of his children and dumping it in another child's bag. It shows something about the Defendant. That's the crux of it all. The crime itself and the character of the Defendant. So, Judge, even in Non-Cap -- well, looking at Capital cases, State v. Johnson, for the record, 338 S.C. 114, it's a 2000 Capital case. We have State vs --
THE COURT: You got copies of those?
RICK HUBBARD: I've got them, Judge. I tell you what, I can pass them up while I'm saying this. I don't want to mispronounce, State vs Kornahrens. K-O-R-N-A-H-R-E-N-S.
RICK HUBBARD: State vs. Bentley Collins. It is another Capital case. The court has ruled consistently on these matters about the admissibility of crime scene photos, the admissibility of autopsy photos, both showing the condition of the body and it shows the character of the Defendant. Non-Capital cases also have discussed very gruesome photographs. State vs. Collins, 409 South Carolina 524, it's a 2014 case. There were pre-autopsy photos of a child victim who was mauled by dogs. And they were relevant to the extent the injuries served to corroborate the testimony. State versus Dooley, again, tried in Lexington in 2013. It was a homicide by child abuse case. They showed a reflected scalp during the autopsy showing the hemorrhaging inside the head. Incredibly graphic. We're not showing anything like that. We're showing the condition of the bodies, how they are dressed, how they appear. And, Judge, frankly, if wildlife got to them because that man left them for wildlife to get to. He left them there to decompose. He left them there to rot and he left them there for the wild. And that shows something about who he is. So our argument is he made them relevant.
ROBERT MADSEN: Judge, if I might, Solicitor points to State vs. Bentley Collins, which I believe was a two-one-two opinion. The Court of Appeals -- Justice Few wrote the Court of Appeals opinion holding that that case should be reversed. Judge Kittredge and Judge Hearn concurred saying that those photographs should have been kept out, but it was a harmless error analysis and that is why they concurred, said that those photographs were not appropriate.
THE COURT: Looks to me like it was Beatty wrote it.
ROBERT MADSEN: Beatty wrote --
THE COURT: Kittredge and Hearn concurred and Pleicones consented.
ROBERT MADSEN: Right, but Justice Few was actually on the Court of Appeals. He wrote the Court of Appeals opinion to reverse and then Justice Beatty reversed him. I mean, that's more of a law school thing kind of telling you what the Justices were thinking with Few not being on there. And, obviously, Justice James was not on the Court at that point in time, which you had two Justices that said that those photographs should not come in. I would assume that Justice Few now being on the Supreme Court would be consistent with his Court of Appeals opinion. And like I said, the Solicitor argued in the first that they weren't relevant to show the condition of the bodies.
THE COURT: Well, I remember my ruling. This is what it was. I remembered what my thinking was. I tried to put it on the record, if I didn't, I'm going to put it on the record again. The Defense tried to introduce them showing the evidence of his insanity, only a person who is insane would do that. I said these are five days, four days, whatever the past of the dropoff and if they were closer in condition to the condition they were in his truck, vehicle and then he disposed of the bodies, that may be a different thing. Those were not offered, the autopsies photos which were five days after. That was the gist of my ruling, I believe, and I think that's consistent with what we discussed on the record up here during our bench conferences. I didn't think that was evidence of his insanity, the autopsy photos of the bodies in the table, bag unzipped is what I remember.
ROBERT MADSEN: I would just submit to the Court that I think all that kind of falls under his character, which is what the Solicitor is saying hey, we want to get it in now. Like I said --
THE COURT: Well, I mean, hey, want to keep it out now. The roles reversed. I told y'all that.
RICK HUBBARD: And they do go to his character. Character wasn't an issue. It would have been reversible in the first phase. I understand what they're trying to do, trying to beat us to the punch, trying to suck the oxygen out of the room in the first phase. It's a very well thought-out strategy. I appreciate it. But, Judge, they are relevant now. And just quickly back to Collins, of course, that's a Non-Capital case. I put that in there just showing even a Non-Capital case because there are heinous photos that come in. That's all they're there for. But where the Court has stood on Capital cases, they still stand. They haven't changed their opinion in a long time, saying the photos can come in showing the circumstances of the crime.
THE COURT: I'll read these very quickly. But also, can you -- have y'all discussed what photos you're attempting to enter with the Defense?
RICK HUBBARD: I've got them pulled, I was going to go through them. Right now, I know they're saying no to everything. But it is worth noting, they were willing to put many of these same photos in in the guilt phase.
THE COURT: Let's take a short break so I can step off the bench. I have got one other issue I want to discuss with y'all that y'all have not brought up, but it was brought to me. We can do it over here.
(WHEREUPON, a bench conference was held.)