1.Jury Selection
1,923 linesMay 1, 2019.
THE COURT: I want to talk to y'all real quick up here. (Whereupon, a bench conference was held with the Court and the Attorneys.)
THE COURT: I reviewed some of my colloquy and questions. I am going to go a little further and ask them more questions because I think I need to, along the similar things we were trying to get done yesterday. Are y'all ready to get going. Number 256. (Whereupon, Juror number 256, Paul Long entered the courtroom.)
Paul Long, being first duly sworn, testified as follows:
COURT CLERK: State your name spelling your last.
PAUL LONG: Paul Long, L-O-N-G.
THE COURT: Good morning.
EXAMINATION
By the Court:
THE COURT: You have been, what is going on is I need to get to know you a little bit and ask you some questions to see if you are a potential Juror. So understand this. Truthful answers, there are no wrong answers, there are no right answers. The lawyers are using this opportunity to get to know you to make determinations. As long as it is truthful it is okay. The lawyers are still massaging their questions per my instructions. And sometimes you give a response and that leads into a follow-up question. If we have to discuss the follow-up questions I may ask you to step outside in the hall. It is not your fault, it is just us trying to sort out the questions. Okay.
JUROR: Yes, sir.
THE COURT: My name is Eugene Griffith, I met you Monday. And I told you, gave you instructions to not discuss the case, communicate about the case. Have you followed that instruction?
JUROR: Yes, sir.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: Yes, sir.
THE COURT: And did you, who?
JUROR: I have hundreds of customers in this area and I am in contact with them throughout the day and night. A few of them mentioned if I was involved in this case.
THE COURT: And what was your response?
JUROR: I told them I could not respond.
THE COURT: That is exactly pursuant to my instructions. Thank you so much. Now there has been news media reports and different media outlets. Have you seen or observed any of those?
JUROR: No, sir.
THE COURT: Fair enough. Now, you were given a list, rather lengthy list of potential witnesses. Did you have an opportunity to review that list?
JUROR: Yes, sir. Yesterday and today.
THE COURT: And you already told me you have a lot of customers. Any members, I will give you some of the mechanics of why things are done. The lawyers involved have to present to the Court any potential witnesses, whether they are going to be called or could be called or may be called. Potential witnesses need to be told to the Court, to the witnesses, to the jurors so that if there is any potential connection there can be discern whether there is a conflict or not and you can set aside your relationship because it would be awkward to get half way through the trial and a witness who wasn't on the list gets called by one side or the other and, oh, that is my first cousin. Well, if you weren't alerted to it early on it wouldn't work. So, anyway, you reviewed that list of witnesses?
JUROR: Yes, sir.
THE COURT: Are you connected in any way, any member of your immediate family connected in any way to any of those witnesses?
JUROR: I didn't recognize any names.
THE COURT: Now, are you or a member of your immediate family connected to any of the lawyers involved in this case in any way?
JUROR: No, sir.
THE COURT: You or a member connected in any way to the Jones' family?
JUROR: No, sir.
THE COURT: Now, are you or a member of your immediate family a member of any organizations which advocate for victims rights such as Mothers Against Drunk Driving, Students Against Drunk Driving, CAVE, Citizens of Violent Crime, Bikers Against Child Abuse. Any groups such as that?
JUROR: No, sir.
THE COURT: Any member of your immediate family or yourself a member of any association such as the Troopers Association, Sheriffs Association, support local law enforcement?
JUROR: No, sir.
THE COURT: Now, we are getting into a little more of the mechanics of the case. And this is kind of a broad picture of how the case will proceed according to our criminal procedures and whatnot. Mr. Jones has been indicted and charged with five counts of murder. And in South Carolina murder is defined, this is the legal definition, killing of another person with malice aforethought. Malice is defined as a person who has a wicked or depraved heart, intent on wrongdoing, hatred or ill-will or hostility towards another. The definitions of murder excludes just cause of excuse of the killing. When the State alleges the defense of murder combined with certain aggravating factors which are outlined in the statutes the State can then notify a person accused that they intend to seek the death penalty. Now, before, all the way up through the end of the trial when a verdict is reached, all the way through, any person accused under our laws, under our Constitution is presumed innocent of each and every element of the crime which he is charged. And the State has the responsibility or the burden of proving its case to a standard of proof called beyond a reasonable doubt to remove that presumption of innocence if they can. Now, Mr. Jones is presumed innocent sitting right there as he is. Do you understand that?
JUROR: Yes, sir.
THE COURT: I am giving you some aspects of the law and it is my job as the presiding Judge to instruct on the law during the trial and jury selection but most particular at the very end, after all the testimony and evidence considered, I am going to give you an instruction of, the law of South Carolina says, one, two three. That sort of thing. That is my job. Jury's have to answer other questions that they are presented. So it is my job, part of my job is to explain to jury's and jurors what the law of South Carolina is, what the statutory law of South Carolina is and how it fits in and under the Federal Constitution. Now, explain some of that to you and give you instruction of the law, in most criminal cases Judges determine the punishment upon a conviction but in a Capital case the jury determines the punishment. In a Capital case the trial has potentially two parts. The first phase, the first part is called the guilt or innocence phase.
Now, if it were that guilty is returned during that phase and then it proceeds onto the punishment phase. I want to discuss the first phase only right now. The first phase, the State must prove a person's guilt beyond a reasonable doubt. I already told you that. And if a jury finds an accused guilty of murder then you go into phase number two. The second phase, the State, if, let me go back. If the jury were to find a person guilty of murder in the first phase then the second phase two, the punishment phase the State has got to prove an aggravating circumstance also beyond a reasonable doubt. So the jury, during that phase, could consider evidence showing aggravation, evidence showing mitigation and I will explain those terms in a minute, in deciding the punishment and either the punishment is one of two things. Life without the possibility of parole or the death penalty.
Now, our law in South Carolina does not allow the State to seek the execution of a person if they are convicted solely of murder. The State must prove that aggravating factor. And those are listed, I am going to give them to you in a moment. The State must prove at least one aggravating factor beyond a reasonable doubt. Now, once you get to the sentencing phase and the State has proved murder and then they are under the duty to prove the aggravating factor. The State can prove the aggravating factor beyond a reasonable doubt. The jury still decides punishment. Jurors are required to consider any circumstances in evidence, in mitigation, that is presented to them. And jurors can consider and must consider any and all mitigating factors which is for a sentence other than death. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors.
Now, if jurors unanimously vote to sentence a Defendant to life without the possibility of parole then that sentence is exactly that, life without the possibility of parole is imposed. Now in this case the State has indicted five counts of murder, has notified Mr. Jones that it intends to seek the death penalty. He has entered a plea of not guilty by reason of insanity. In this case you are going to hear testimony and evidence showing many things. A wide variety of testimony may be presented during this trial. There will be a wide variety of witnesses called and you will hear a variety of things. I would instruct you and how to consider and evaluate that testimony and that evidence and whether it is defined as evidence of an aggravating factor, evidence of mitigation. Mitigation is kind of explained as any reason to vote for a sentence of life without parole.
Evidence of any defenses, evidence of any affirmative defenses such as accident, guilty but mentally ill or not guilty by reason of insanity. So until the testimony and evidence is presented by the parties I don't exactly know my specific instructions. I have a general idea, I am going to instruct murder and proof beyond a reasonable doubt. But there has got to be testimony supporting the instructions that I give so I decide that at the close of the case. Now, can you accept an oath if you are selected as a Juror to consider all the testimony, all the evidence and apply the law as I instruct it at that time. Can you do that?
JUROR: Yes, sir.
THE COURT: And can you consider the evidence consistent with my instructions?
JUROR: Yes, sir.
THE COURT: Now, I told you that there is a plea that Mr. Jones as entered is a not guilty by reason of insanity and because of that plea it creates in the guilt and innocence phase four potential verdict forms. And by that I mean the jury will be given a verdict form that says, consider the case, instruction of the Court and here are the four potential results. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty, four forms, four choices. Now, can you give consideration to each of those verdicts depending on the facts and circumstances presented to you and the law as I instruct you, can you give meaningful consideration to each of those potential verdicts?
JUROR: Yes, sir.
THE COURT: Now, if a verdict comes out in the case of guilty or guilty but mentally ill then the case will proceed to stage two. And it is during that stage that the State then is required to show or prove the mitigating factor or factors shown, demonstrated, written down in the statutory code books, and the codes are right behind me, the codes that are presented are handed down to the Courts from the General Assembly. So, statutory aggravating factors, the General Assembly says these are the ten that are potential aggravating factors. I will read those momentarily. And there are two potential verdicts in this stage. Once you get to the punishment phase there are two potential verdicts, life without parole and the death penalty. Now, do you have any religious or moral beliefs which would prevent you from considering the evidence?
JUROR: No, sir.
THE COURT: Do you understand that the death penalty, that stage, is not automatic?
JUROR: Yes, sir.
THE COURT: The State has got to prove more in the sentencing phase. Now do you have any beliefs, whether they are ethical, moral, personal which would prevent you from imposing a life without the possibility of parole sentence?
JUROR: No, sir.
THE COURT: You could consider the evidence, whatever the evidence is, facts presented, instructions of the Court and make a fair determination of one of those verdicts?
JUROR: Yes, sir.
THE COURT: Now, this is where I want to go over some of these, understanding potential defenses in the case, I am going to ask you this. Some of the potential defenses that may be presented in this trial are, these are out of the statutory books and most people who don't deal with law would not know this off of their head. Potential defenses and I am saying these may be presented to you but these are potential ones that could come and, as the Judge, I may deal with them, identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Can you give meaningful consideration and apply the law as I instruct you regarding any of those potential defenses, considering the testimony and law presented to you?
JUROR: Yes, sir.
THE COURT: Now, I explained to you earlier that mitigation evidence could be presented in the case. Mitigation are factors which could be reasons to impose a sentence of life without parole. And there are other reasons that aren't statutory but potential mitigation evidence you would hear would be this. The Defendant has no significant history of prior criminal convictions, involving the use of violence against another person, never been in trouble. A murder has been committed while the Defendant was under the influence of mental or emotional disturbance; the victim was a participant to the Defendant's conduct or consented to the act; the Defendant was an accomplice in the murder committed by another person and the participation was relatively minor; The Defendant acted under duress or under the domination of another; the capacity of a Defendant to understand or appreciate his criminality of his conduct or his conduct was impaired; the age or the mentality of the Defendant at the time of the crime; the Defendant was provoked by the victim in committing the acts; the Defendant was below the age of 18; the Defendant had mental retardation at the time of the crime. Now, those are the statutory ones and as I told you, those mitigation evidence may come in other forms, neither side is limited to presenting only those statutory mitigating factors but other evidence of mitigation may come at you. Now, can you give meaningful consideration to any facts and testimony in regard to those mitigating factors if so presented and follow the instructions of the Court?
JUROR: Yes, sir.
THE COURT: Now, I handed another sheet to you which described three potential types of jurors. Did you have an opportunity to review that?
JUROR: Yes, sir.
THE COURT: Now, discussing those with you, type one is a type of person who would hear the facts and circumstances, they pretty much got their mind made up that they are going to impose the death penalty if murder is proven. Type two, slightly different, they can hear the circumstances of the case, murder is proven, aggravating circumstances, that this Juror just feels that life without parole would be the appropriate punishment because they may have a moral belief that they can't do that, they can't sign the verdict form imposing the death penalty. Then there is type three, that once the crime of murder and aggravating circumstances have been proven the jury would not have their mind made up and can hear facts and circumstances considering aggravation and mitigation. And they can bring either verdict. Can you tell me which type of Juror as you perceive as yourself?
JUROR: After everything has been presented?
THE COURT: Yes.
JUROR: Type one.
THE COURT: Type one?
JUROR: Yes, sir.
THE COURT: Now, also I ask you, can you and are you willing to follow the instructions of the Court and decide which sentence to impose. Can you do that?
JUROR: Yes, sir.
THE COURT: All right. Mr. Young, do you have some questions? I am sorry, Mr. McGuire.
BILL MCGUIRE: Your, Honor, may we take up an issue.
THE COURT: Sure. We have got to take up an issue. (Whereupon, the Juror was excused from the courtroom.)
BILL MCGUIRE: Your Honor, this Juror is clear, he has understood the Court's charge. At this point and time he has understood the law and he has indicated that he is a Juror who believes that the death penalty is the only appropriate punishment for somebody convicted of murder with an aggravating circumstance. It is very clear, he said after everything is presented, for me, I am a type one. We shouldn't have to ask him any questions, he should be excused.
THE COURT: Solicitor.
RICK HUBBARD: Your Honor, the only thing I would ask, just go back and actually read number one again, and just say that describes you and if he says yes let's move on.
THE COURT: That is kind of my thinking too. Appreciate y'all being on the same page. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: I want to go back over one thing with you to make certain I understood. The type of potential jurors. Type one, if it is proven by the State, murder and aggravating circumstances, do you consider yourself a person who would always give the death penalty or are you going to consider both penalties?
JUROR: To me if it has already been proven, if the State has proved it and we have agreed or said it is proven, I would say, yes, I am a type one.
THE COURT: All right, thank you for coming, you are excused. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I forgot to ask his personal schedule.
(Whereupon, a bench conference was held.)
THE COURT: Bring the next one. (Whereupon, Juror 221, Garrett Johnson came into the courtroom.)
Garrett Johnson, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your last.
JUROR: Garrett Johnson, J-O-H-N-S-O-N.
EXAMINATION
By the Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Mr. Johnson, my name is Eugene Griffith, I met you at a distance on Monday. This is an opportunity today for me to ask you some questions and the lawyer will may perhaps ask you some questions to determine if you are, could be a potential Juror in this case. Now, you are under oath. Part of the oath I gave to you earlier in the week was, don't let anybody talk to you about this case, don't talk to anybody about the case. Do you remember that?
JUROR: Yes, sir.
THE COURT: Has anyone talked to you about the case.
JUROR: I saw a news article and there was something in there but not specifics, no.
THE COURT: You saw a news article you said?
JUROR: Yes sir, I didn't read it.
THE COURT: What you described for me is consistent with my instructions and I appreciate that. Now, you are under oath and all are truthful answers. There are some questions I am going to ask, there aren't right or wrong answers. They are just, how do you feel.
JUROR: Okay.
THE COURT: So there will be some opinions involved, it is not going to be like, did you talk about the case. That is not an opinion, that is you did or didn't. No wrong answers, only truthful answers. That is what we want. I am going to get to know you. Now, you or a member of your immediate family, any of you a member of any organization which supports or advocates for victims rights such as MADD Mothers, SADD Students, Citizens Against Violent Crimes?
JUROR: Nobody that I am ware of.
THE COURT: None you are aware of. Any member of your family, you, a member of the Troopers Association, Sheriffs Association, support local law enforcement, such as that, crime watch zone, that kind of thing?
JUROR: Not that I am aware of.
THE COURT: You or a member of your immediate family connected in any way to any of these lawyers here in the courtroom?
JUROR: No.
THE COURT: You or a member of your immediate family connected in any way to the Jones' family?
JUROR: Not that I am aware of.
THE COURT: Now, there is a long list of witnesses. Did you have a chance to look over that?
JUROR: I did. It is really long.
THE COURT: It is really long. I have got to make the lawyers tell me any potential witnesses, we are probably going to call these and they don't tell me potentially that they may need some others. Judge, during the trial, I think we may need these, they can't do that, they have got to tell me so I can ask you this question. Are you connected in any way to any of those potential witnesses?
JUROR: I don't believe so. My neighbor is a Lexington County Police Officer.
THE COURT: They live near?
JUROR: He lives nextdoor, yes.
THE COURT: You live in West Columbia?
JUROR: I live in Columbia.
THE COURT: You don't know, no member of your family has any type of relation with any of these folks, even though they haven't seen it?
JUROR: Correct.
THE COURT: All right. I forgot to ask you this question. This jury selection process was moving kind of slowly yesterday and I appreciate your patience waiting on my progress yesterday, that was most of my doing. Nevertheless, I am not sure exactly when we will be through with jury selection, finding and determining the potential jurors. And then once we start the trial I am not exactly sure how long the trial will take, estimating, guessing. Do you have anything, personal or otherwise, medical procedure coming up, vacation schedule to late May or June. Am I going to knock you out of some big trip to Disney Land?
JUROR: No.
THE COURT: So your schedule will permit you to serving if so selected?
JUROR: So far as I am aware, yes. Nothing planned.
THE COURT: Okay. And I understand it is a big inconvenience and that is just part of our jury process, you get paid a little something for your trouble. But you could do it if so selected?
JUROR: Yes.
THE COURT: Now, I am going to give you kind of a preliminary broad brush, a big brush of criminal procedure and how a trial would proceed and kind of explain a few aspects of the law that most people don't know. Part of my job as the presiding Judge to prepare for trial, secondarily, instruct the law consistent with the law of South Carolina. That is what I am suppose to do, and I try to do that. The large part of the trial is instructions on the law of South Carolina is thus and so. And part of your oath would be later on is to accept the law as the Judge is instructing you if you disagree with it. Because sometimes you might not agree with it, you have to follow the law. Now, in South Carolina, I am sorry, in South Carolina murder is defined as the killing of another person with malice aforethought. It is a very simple definition but some of the subparts, malice is defined as a person with a wicked or depraved heart, intent on wrongdoing, ill-will and hostility towards another.
The definition of murder excludes just cause or an excuse. Now, when the State accuses a person of any crime that person is presumed innocent until the State proves its case beyond a reasonable doubt. And it may be delayed because the trial is not called the week after something happens, it is down the road until they get the case scheduled. Until such time as a jury hears the case and makes a decision the person accused is presumed innocent all the way through, until the State presents and proves it case to the standard of proof called beyond a reasonable doubt. Now, in certain cases, a case like this, most cases when the State does that, when they try to prove the criminal act against a person, they accuse them of to try to prove, if the person is convicted and the Judge, the Court imposes the punishment. Okay.
JUROR: Okay.
THE COURT: In a Capital case the jury decides punishment. Okay. Now, because Capital cases are specialized cases it is divided into two parts. Part one is guilt or innocence. If part one is found not guilty you don't go to part two. You never get there. Part one is guilt or innocence, you determine the guilt of the Defendant of the murder. If guilt is found there then you go to stage two. And then evidence, the State has got to prove its case, all the elements to all of these, to the murder and to the aggravating factors which I am telling you about now. In stage two, if the State is seeking the death penalty the State has got to prove aggravating factors that are outlined in the statutory books which are right behind me. The aggravating factors are listed out, like ten of them. The State has got to prove an aggravating factor beyond a reasonable doubt to a jury. And only then, once they prove the aggravating factor then a jury determines the sentence.
And the sentence is one of two things, life without parole or death, okay, one of the two. No other sentence is available. So I want you to understand, our law does not allow a person, when the State is seeking the execution of a person if they are only convicted of murder, they have got to go to the next step to prove the aggravating factor also. Now, in the sentencing side, the death phase, there is also evidence that is listed, considered by the jury, mitigation. Mitigation, there is a list of things and I want to read those to you real quick. These are the mitigating factors potentially to be heard. Mitigation factors include, the Defendant didn't have a significant criminal history, never been in trouble before. Murder was committed by the Defendant under the influence, mental or emotional disturbance. The victim was a participant and the Defendant's conduct or he consented to the act.
A Defendant was an accomplice in the murder committed by another and his participation was relatively minor. The Defendant acted under duress, under the dominion of another person, the capacity of the Defendant to appreciate the criminality of his conduct, his conduct to the requirements of law substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant had mental retardation at the time of the crime. Those are statutory defined mitigating factors but the jury can consider other things when they consider mitigation. Childhood history, that kind of thing, whatever they want. Now, in the sentencing phase the State has got to prove the aggravating factor, mitigation elements are shown. Can you give, I am sorry, I changed my pace of my questions with you today. I handed out a sheet to you and the other jurors too showing types of potential jurors.
JUROR: Yes.
THE COURT: And that sheet explains, type one Juror. This is generality. Type one Juror is somebody who once a murder and an aggravating circumstances has been proven by the State that Juror would not need to hear the facts and circumstances of aggravation or mitigation. They feel that once a murder has been committed the death penalty is the appropriate punishment. Type two person is kind of just the opposite. If they believe the crime of murder and aggravating circumstances have been proven then they are not going to listen to anything else and they have got a moral or religious belief, some belief that life without parole is the only sentence that they can sign off on. And type three is the type of Juror that once the crime of murder and aggravating circumstances have been proven beyond a reasonable doubt by the State that Juror would not have his mind made up concerning punishment, they would want to hear the facts and circumstances, consider all the facts and circumstances. Looking at those three categories in general, where do you find yourself?
JUROR: Three.
THE COURT: Three. So you consider yourself somebody who could bring a verdict, either life without the possibility of parole or of, a sentence of death?
JUROR: Either one.
THE COURT: Either one. Now, let me go back. Now, in this case the State has indicted, accused Mr. Jones of five counts of murder and notified Mr. Jones that it intends to seek the death penalty. So that changes some of the procedures that we go through when selecting jurors by asking questions one on one. Mr. Jones is presumed innocent under out law, okay. I told you that before, a person accused is presumed innocent until the State presents its case beyond a reasonable doubt. Mr. Jones has entered a plea of not guilty by reason of insanity. And so because of that you are going to hear a variety of testimony and a variety of evidence. And so I am going to instruct you on how to consider some of that. Some of that evidence is going to be, some of that testimony you are going to have to evaluate and consider would be any aggravating factors which are, an aggravating factor would be kidnapping or killing of a law enforcement officer, child is the victim, multiple murders, those sort of things.
Those are statutory aggravating factors. Y'all get to consider and I will instruct the jury on how to evaluate that type of testimony. You will have to consider evidence of mitigation which would be any reason to vote for a sentence of life without parole and I have described those aggravating factors to you just a moment ago. Evidence of any defenses and I will tell you some potential defenses in this case are accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, entrapment, defense of habitation, duress and alibi. And some of those are affirmative defenses such as guilty but mentally ill, not guilty by reason of insanity and accident. Now, until the testimony is presented because they haven't called any witnesses yet, I haven't heard any trial testimony yet. Until it happens, until they present the testimony I don't know which aspects of those potential defenses I will instruct the jury on. I have got to hear the testimony too to kind of tailor my instructions of, you have heard testimony which would include. I tailor my instruction at that time. I don't have a standard instruction, it is tailored to each case.
JUROR: Okay.
THE COURT: So, until the testimony and evidence is presented I can't tell you exactly what I am going to instruct but I have a general idea. Now, can you accept an oath and give meaningful and consider all the testimony and evidence and apply the law as I instruct it to you and consider the evidence consistent with my instructions?
JUROR: Yes.
THE COURT: All right. Now, because of the plea entered by Mr. Jones, there are four potential verdicts in the first phase, guilt or innocence. Remember, the State has got to prove murder before we go to stage two. If you think it has not proven murder it stops at stage one. Four potential verdicts, in stage one, guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty, four potentials. Now, do you have any moral, personal, ethical, any reason whatsoever that you know of that you can't give meaningful consideration to each and every one of those verdicts that the jury will be presented?
JUROR: No.
THE COURT: Okay. So depending on the facts and circumstances, the law as I instruct it and no matter what type of evidence it is, whether it is mitigating, aggravating, a defense, any and all evidence, you give meaningful consideration to all the evidence presented to you and determine the appropriate finding of guilt and not guilty in that first phase. Can you do that?
JUROR: I am sorry, say that again.
THE COURT: I know it is confusing. The first phase, can you give meaningful consideration to all the law as I instruct it but consider all the evidence that is presented to you whether it is testimony, hard evidence, fingerprints, something like that, any evidence, give meaningful consideration to all of that evidence. Whether it is a defense, whether it is a mitigating factor, whether it is an affirmative defense, or whether it is an aggravating factor, can you give consideration to all of that?
JUROR: Yes.
THE COURT: What I am looking for is a fair and impartial Juror. That is what my job is, to seek out and find fair and impartial jurors. Okay?
JUROR: Yes.
THE COURT: Now, if we get to stage two, so stage two I gave you the four potential verdicts, guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty. Either of those two verdicts of not guilty or not guilty by reason of insanity the case stops. It goes to the second phase if either of the guilty verdicts, do you understand?
JUROR: Uh-huh.
THE COURT: Now, do you understand, at that time that is when the jury has to change gears and determine the punishment. That is what the jury will be doing. If that stage is reached do you have any religious or moral beliefs which would prevent you from imposing the death penalty?
JUROR: No.
THE COURT: Now, do you have any religious, ethical, moral, personal beliefs of any kind which would prevent you from imposing a sentence of life without parole?
JUROR: No.
THE COURT: Now, you understand, I try to be fair and specific about the broad brush of procedure. Do you understand the death penalty is not an automatic result that has got to be decided by the jury in stage two?
JUROR: Yes.
THE COURT: Now, I forgot this. This is another question, this trial, a wide variety of testimony is going to come before the jury. There is going to be testimony concerning children, maybe some graphic pictures of their bodies, testimony of all sorts of things, maybe graphic in nature. It is testimony of that type, graphic testimony which may be a little disturbing. Would that create an issue for you to be a fair and impartial for both, the State and Mr. Jones. Can you do that?
JUROR: Yes, I could. Pleasant--
THE COURT: -- no, it is not pleasant.
JUROR: No, I mean--
THE COURT: Could you consider the testimony like that and evidence like that?
JUROR: Yes.
THE COURT: All right, Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good morning, Mr. Johnson.
JUROR: Good morning.
BILL MCGUIRE: My name is Bill McGuire, I am one of the lawyers in the case and this is our opportunity to ask you some questions.
JUROR: Okay.
BILL MCGUIRE: And we are going to focus primarily on your views about the death penalty for the offense of an aggravated murder. Okay?
JUROR: Okay.
BILL MCGUIRE: And it is a little weird that I have to ask you questions about punishment when we haven't even had a trial now, Mr. Jones has plead not guilty by reason of insanity and there is a chance we would never even get to a penalty phase in this trial. Do you understand that?
JUROR: Yes.
BILL MCGUIRE: Does that sound fair to you?
JUROR: Yes.
BILL MCGUIRE: Okay. Now, you came from Illinois to South Carolina, right?
JUROR: Correct.
BILL MCGUIRE: And you have been here for about three years?
JUROR: I have been here for many years.
BILL MCGUIRE: Many years. I am sorry.
JUROR: I am trying to think of the year, I was in eighth grade, I don't remember what year that was, late '90's.
BILL MCGUIRE: Okay. I may have misread something on your questionnaire. When this incident happened do you remember hearing any publicity at that time, it would be about four years ago?
JUROR: I am sure I heard something but I don't specifically remember, I might have heard like when it happened. But I didn't remember like names or details or anything like that.
BILL MCGUIRE: When you say you heard what happened you knew the basic facts of the case?
JUROR: Yes, kind of like, you are scrolling through like Facebook or something and you kind of, like I have got news channels on it, right. So you know, you see articles but you don't necessarily read it, you just kind of scroll through and such and such happened on, I am sure I saw something but I don't remember it.
BILL MCGUIRE: If I recall correctly, you get most of your news from the internet, is that right?
JUROR: Correct.
BILL MCGUIRE: Okay. And that would make sense, you are an IT analyst, right?
JUROR: Uh-huh.
BILL MCGUIRE: So when you saw the story on the internet you scrolled through it, what was your reaction to the story?
JUROR: Like, years ago when it happened?
BILL MCGUIRE: Yes.
JUROR: I don't remember. I don't remember actually reading it or seeing it.
BILL MCGUIRE: Okay.
JUROR: I am sure I did but there is no specific, like 2015, '14, whenever it--
BILL MCGUIRE: But you don't recall specifics?
JUROR: I don't recall specifics.
BILL MCGUIRE: And I think you indicated to the Judge that you saw a little bit of publicity recently?
JUROR: Correct.
BILL MCGUIRE: What do you remember about that?
JUROR: It was last week, what is today, Wednesday, it was last week. There was, again, I was scrolling through and I saw an article. I was looking at something else on, I want to say WIS and there was like, the next article, so, you know, I scrolled through it as well and it wasn't very large, it was just a, kind of like a blip I guess is what they call it. Just a couple of details on who, what and then--
BILL MCGUIRE: Sort of the nature of the case?
JUROR: Basically, yes. It was very short like two paragraphs.
BILL MCGUIRE: And did you have any kind of reaction to that, emotional or otherwise?
JUROR: I mean, yes, like sad, bad news, sad.
BILL MCGUIRE: Do you, from what you have read do you believe Mr. Jones committed the acts he is accused of killing his children?
RICK HUBBARD: I am going to object to that.
BILL MCGUIRE: I object to speaking objections and I would like to take it up on the record if it is going to take up any argument at all.
THE COURT: Okay. Let's, Mr. Johnson, sometimes the lawyers have got to explain a little more depth in the law, we have to make a record of it. We will put you in the hall while I talk to them and then we are going to move forward.
(Whereupon, the Juror was excused from open court.)
THE COURT: All right, Mr. Hubbard.
RICK HUBBARD: The objection is, the question was, did you think Mr. Jones did it. That is absolutely improper. He can't ask that. The question is, have you formed an opinion and if you have can you set it aside. You don't ask what it is. Can you set it aside and listen to the evidence here in this courtroom. You can't ask this Juror, do you think he did it. That is absolutely improper.
THE COURT: All right. Mr. McGuire, why do you think you can ask that question.
BILL MCGUIRE: Well, because the law allows it, it is absolutely appropriate. There is a case, Louisiana versus Monroe where a Defendant, Capital case, there is some publicity about a Defendant's videotaped confession. The jury did go through voir dire, did say they could set it aside. Two jurors that saw the video of a confession were seated on the jury and United States Supreme Court said it doesn't matter if they can say, we heard it, we can set it aside and be fair. The reality is they have been tainted and putting them on the jury was reversible error. That is why I am allowed to ask the questions to prevent reversible error in this case, to make sure that we have somebody who can presume Mr. Jones innocent. If he says, I have formed an opinion, I can't presume him innocent. Do we think he is qualified. No. Do we need to make sure he doesn't get on the jury. Yes. How do we do that, we ask them, that's it. It is commonsense. This is not an objection, this is a request for a favor from the Court. Judge, please don't let him ask that question, it might uncover some stuff that will make this guy unqualified. Not only is it an allowable question, I think I would be committing malpractice if I didn't ask. It would be silly not to ask it.
RICK HUBBARD: Your Honor, here is the objection. The way the question went, do you think he did it. The proper question is, did you form an opinion. If we get a yes there, first of all, can you set it aside. But we haven't even gotten that yet, it is, did you think he did it. That is absolutely improper. That is staking this man out right now. Will you think this man, based on what you just heard already outside there, convict this man, you can't do that. First of all, there is no logical difference between asking him based on what you have read, what you have heard, do you think he did it. And the question, have you formed an opinion regarding his guilt based on everything you have read. It is the same question. There is a legal distinction between the two. So the way I ask it it is perfectly proper.
THE COURT: No, no, no. I don't need that, don't do that again.
BILL MCGUIRE: They do that all the time, Judge.
THE COURT: Well, y'all do it too.
BILL MCGUIRE: I don't.
THE COURT: Both tables, I can clearly say that those two haven't stood up yet. But y'all have both been vigorously representing your, don't do that. I am trying to manage the courtroom so I am going to keep trying. All right, let me hear you further. I kind of like the way it sounds better, have you formed an opinion and if he says yes, what it is.
BILL MCGUIRE: It is the same thing. We are picking on little tiny differences in words. It is ridiculous.
THE COURT: I agree, y'all are picking on small words.
RICK HUBBARD: My justification for doing it that way is almost feeding him a line, do you think he did it. That is difference, that is a different sentence.
BILL MCGUIRE: Feeding him a line, I don't really know what that means but I don't think that, I think it would be absurd to say that, the question that I asked is so powerful and moving that I am going to make him compelled to say yes. That is absolutely absurd. Basically what you have learned, do you think he actually did the act he is accused of. That is a very plainly simple question and it is the exact same question, based on everything you have heard, read, have you formed an opinion about Mr. Jones' guilt. I could ask it that way, I don't care.
THE COURT: Let's do that. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
BILL MCGUIRE: Sorry for the interruption. So, what I was asking you when we left off was, based on what you heard and read in these stories have you formed an opinion as to the guilt of the Defendant?
JUROR: Yes, like I read an article and it had some basic facts. I am sure everybody has got an opinion about it. So, yes, I have an opinion.
BILL MCGUIRE: So that is what I want to ask you about. What is your opinion based on everything you have read regarding Mr. Jones' guilt?
JUROR: From a little bit I read it kind of seemed like he did it.
BILL MCGUIRE: Okay. And how strong is that opinion?
JUROR: I mean, I really don't know how to answer that.
BILL MCGUIRE: Maybe it is not a great question. I guess what I am saying is, if another Juror came in here and just said, you know, I have read about the case and I really think he did it and I have formed a pretty strong opinion that he is guilty that would be something that the Judge would want to talk to you about, I would want to talk to you about it. Do you have a strong opinion as to whether Mr. Jones is guilty?
JUROR: I don't know, to define strong. I mean, I have an opinion of it, I don't like, am I solid, you know, like locked in, probably not.
BILL MCGUIRE: Have you heard anything, the Judge has told you that Mr. Jones has plead not guilty by reason of insanity. Do you understand that?
JUROR: Yes.
BILL MCGUIRE: Do you know what that means?
JUROR: Sort of.
BILL MCGUIRE: Tell me what your thought is about that?
JUROR: I mean, what would you, so like he was mentally incapacitated during the time or like, I guess incapacitated was the wrong -- I can't think of the word I am looking for. I am sorry. It would be like he would be mentally incapable or of like, realizing what he did or I guess why he did it.
BILL MCGUIRE: I think you are pretty close. When the Judge was talking to you about it, he gave you a definition of the person would be not capable of understanding the legal or moral wrong with what they did. Does that make sense?
JUROR: Yes, like why he did it or why he thinks it is bad or not bad.
BILL MCGUIRE: Maybe he didn't realize he was doing a bad thing or a morally wrong thing. Does that make sense?
JUROR: Yes, I can see that.
BILL MCGUIRE: Okay. And some folks might show up, not you, some other Juror might show up and say, you know what, I heard about the case, it is five dead children, I am not going to be able to consider not guilty by reason of insanity. That is kind of like letting them off. Does that describe you?
JUROR: A little bit. I don't know because insanity kind of seems like a very broad term, definitions.
RICK HUBBARD: Your Honor, if I may, can you find it?
THE COURT: Sure, I will go back to where I read before.
BILL MCGUIRE: That would be helpful, thanks, Judge.
THE COURT: All right. The definition would be the capacity of a person accused, the criminality of his conduct, conform his conduct to the requirements of law. Is it fair. All right. And that is a broad brush. A Right.
BILL MCGUIRE: Mr. Hubbard and I are looking for a different definition there.
THE COURT: Okay.
RICK HUBBARD: The NGRI.
THE COURT: Y'all propose something for me because I didn't, that prepared to read over --
RICK HUBBARD: I guess the statute or maybe a charge that would be in your charge book.
THE COURT: I don't have a charge book with me, y'all are putting me on the spot and I don't like that. Help me out.
BILL MCGUIRE: We are going to come to your aid, Judge, in just a second.
THE COURT: Y'all presume I have got a great charge book but then y'all have read them some and they are terrible because--
BILL MCGUIRE: Yeah, Judge Peeples gave me his, he didn't think it was worth much.
THE COURT: All right, here is the statute, this is one of those books they had already copied out. Okay. At the time of the commission of the act constituting the offense, the Defendant, the result of a mental disease or defect lack the capacity to distinguish moral or legal right from a moral or legal wrong or to recognize particular, the charge is morally or legally wrong. That really clears things up for you.
BILL MCGUIRE: Sometimes legal definitions are not clear.
JUROR: I understand.
BILL MCGUIRE: But I think the essence of what is in there, I think the Court will agree with me, is if a person cannot distinguish legal right and wrong or moral right and wrong, he would fit within that definition. That is really the essence of it. Does that make sense to you?
JUROR: Yes.
BILL MCGUIRE: As I was saying earlier, maybe another person in Lexington County could come here and say, you know, I heard about this case, five dead children. That definition that the Judge just read to you, not guilty by reason of insanity, it might say in there that is kind of like letting the guy off and I really can't consider that. Would that describe you?
JUROR: No, I guess not.
BILL MCGUIRE: You can fairly consider that?
JUROR: Right.
BILL MCGUIRE: If the evidence supports it?
JUROR: If the evidence supported it.
BILL MCGUIRE: You could vote for it?
JUROR: Yes.
BILL MCGUIRE: Okay. Now, if you would just come with me in your mind and let's say we are at the break room at your work, TD Bank?
JUROR: Yes.
BILL MCGUIRE: Okay. Let's say we are at the break room at work and one of our coworkers says, you know, I am a supporter of the death penalty, I think we should use it more. And he said, Garrett, what do you think about that. What would you say?
JUROR: Use it more?
BILL MCGUIRE: Yes, we should--
JUROR: If the crime fit the punishment or if the, yes, if the crime fit, yes.
BILL MCGUIRE: Do you have an opinion whether the death penalty is used too much, not enough?
JUROR: I don't know how much it is used, so.
BILL MCGUIRE: You don't keep up with it?
JUROR: No, not really.
BILL MCGUIRE: If you were to say, I want to take you away from the break room, if you are in charge of the State of South Carolina and you could sign a bill saying we are going to have the death penalty or not have the death penalty, if you were Governor for a day. Would you sign to have it or sign we don't have it?
JUROR: Have it.
BILL MCGUIRE: Because it serves a purpose?
JUROR: Yes.
BILL MCGUIRE: What kind of purpose do you think it serves?
JUROR: I mean, it is a fit punishment for certain crimes.
BILL MCGUIRE: Okay. And part of the criminal justice system, there is a word called retribution. Have you heard that before?
JUROR: What do you mean.
BILL MCGUIRE: Well, when we punish somebody for committing a offense there is a couple of things that serves society, serves the criminal justice system. One is, punishing somebody for doing something wrong. That is called retribution. Another thing, another factor is deterrence, it keeps other people from doing something bad. And another thing is called incapacitation. It means that particular person is locked up or gone and can't do another crime.
JUROR: Okay.
BILL MCGUIRE: So those are like the three big factors. And sometimes the death penalty is described as the ultimate punishment, meaning that when you really want to punish somebody for doing something bad, retribution, the death penalty is the ultimate punishment. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Okay. And I want to ask you about your views about punishment, the death penalty as applied to aggravated murder. And what I want to do is go back to the definition of murder. Okay. So we are on the same page, is that okay?
JUROR: Okay.
BILL MCGUIRE: Okay. Now the Judge already said murder in South Carolina is killing another person with malice aforethought. And malice is sort of the person's state of mind, their heart. It is described as a black, malignant heart fatally bent on evil, wickedness, having hatred and hostility. It is pretty serious stuff. The Judge also said without any just cause or justification or excuse. That means it is not an accident, it is not like somebody cleaning a gun and the gun goes off, it is not self-defense. That sort of thing. It is a person intended to kill, chose to kill and killed. Are you with me?
JUROR: Yes.
BILL MCGUIRE: All right. And the Judge also told you that in South Carolina people, well, let's back up or let me back up. In that situation where a person intentionally deliberately with an evil heart kills an innocent person, do you believe that the death penalty is the appropriate punishment?
JUROR: Yes.
BILL MCGUIRE: And there are some people who would say, there are some cases that are always bad, like the killing of children and the death penalty would be appropriate in that type of case.
JUROR: Is that a question, I am sorry.
BILL MCGUIRE: It is a bad question, Mr. Johnson. So what I hear you saying is, for the intentional killing of an innocent victim the death penalty is appropriate?
JUROR: Yes.
BILL MCGUIRE: And I am going to add something to that and that is an aggravating factor. It can be lots of different things, it can be like robbery, rape, stuff like that. But what I want you to answer my question on is, if the victims are innocent children that type of case demands the death penalty?
JUROR: Yes.
BILL MCGUIRE: Okay. And your answers to these questions are your sense of justice?
JUROR: Yes.
BILL MCGUIRE: And reflection of your values?
JUROR: Yes.
BILL MCGUIRE: Your moral code?
JUROR: Yes.
BILL MCGUIRE: And they are all truthful and under oath?
JUROR: Yes.
BILL MCGUIRE: So in this case that we are talking about, the intentional killing of innocent victims, children. Would the Defendant's background, character, who he is as a person, would that be relevant in fixing punishment, the death penalty for the killing of innocent children?
JUROR: It could be.
BILL MCGUIRE: How so?
JUROR: I mean I guess it would depend on, because you said if it was like background or circumstances.
BILL MCGUIRE: Just sort of walk in life, how he grew up.
RICK HUBBARD: Your Honor, I have an objection.
THE COURT: We will put it on the record then. Back to the hall again, please, Mr. Johnson. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, Mr. Hubbard, and thank you for registering the objection only.
BILL MCGUIRE: I appreciate it as well.
RICK HUBBARD: Your Honor, I could have stood up much earlier. This has gone way beyond what you do on voir dire. He is asking for his opinion on matters. That is not voir dire. The fact is, have you heard stuff outside that would make you form an opinion, if you can't be fair can you set it aside. And here is, what are your thoughts on the death penalty. Your Honor, I understand why they want to get into that. It is interesting but this man has no idea how we apply it, he has even said that. And then mitigating circumstances, he has no idea what those are.
THE COURT: Wait a minute. Hey, hey, y'all did this to me yesterday. Y'all have got, Bill, you get back over here and Rick, you stay over here. And when y'all argue on the law I want you to stand and take positions and they can move around a little bit. This crisscrossing is hugely distracting to Joy and me. Now, keep going.
RICK HUBBARD: It is unfair to ask a Juror, what is your opinion on mitigating circumstances when he doesn't even know what we are talking about. And we have gone so far afield asking specific questions about this case, getting into the facts. And how we are putting this Juror in the position where we are asking him his opinions on things that he has no legal definition for and he has no facts.
THE COURT: I agree. I understand where you are coming from. What I don't like is the characterization question is, there is no two options. You start out with there is only one option, we are discussing the death penalty, we are discussing the death penalty and he has got -- I want you to ask that earlier rather than setting him up for, let me add one more fact to it and one more fact to it and one more fact to it. That is kind of hardly unfair to him. I went over, can you impose either sentence and then you are going back just asking for one and this is appropriate and he is wanting to say appropriate but I want to hear everything. He is leaning that way to say it but you are giving him a law school exam. Name some mitigating factors. Y'all put me on the spot. Can you define insanity, he doesn't know that, that is a horribly unfair question. He answered it pretty well and you should have stopped with the test. You are beating him up. Explain your opinion on insanity, he doesn't have an opinion on insanity. He just knows it exist.
BILL MCGUIRE: I think a lot of people do have an opinion, they think it is an excuse and it is letting people go--
THE COURT: No, I didn't mean, I meant in general.
BILL MCGUIRE: Oh sure.
THE COURT: That is an opinion. And you asked him during that examination, we have got a murder, children are the victims and the State has got to prove an aggravating factor. They have already proved one, the children. You didn't pull him in on that.
BILL MCGUIRE: I did.
THE COURT: No, you didn't.
BILL MCGUIRE: I did.
THE COURT: No. You said, all right, here we are at guilt. And the State has proven of an innocent child. Then the State has got to prove an aggravating factor. That was kind of--
BILL MCGUIRE: If I did that I apologize.
THE COURT: At least that is what I thought you did.
BILL MCGUIRE: When I had the children in I thought I was adding aggravating. If I did that I apologize.
THE COURT: All right. Well, I mean, how many questions are you going to ask him, he has been pretty fair. How many times are you going to rephrase the question, the same question over and over and over. That is what Mr. Hubbard is upset about, is you keep back down the same road, the same loop. How many times can you reask that same question.
BILL MCGUIRE: One time, sort of stated his position, that I added the children--
THE COURT: And that is who you are as a person. Your moral beliefs are very strong.
BILL MCGUIRE: And, Judge, I would just point out that the sheet, the State's voir dire questions, their number three is what do you think about the death penalty. I am ready to go forward. I have got a few questions.
RICK HUBBARD: Your Honor, still several areas I have got a problem with. One, asking the Juror about murder and you are adding a fact, you are adding a fact. You know, it is aggravating or it is murder with children. So we are adding facts, facts that are going to come from this case but then we turn and say, or the Defense is turning and saying, all right, tell me about mitigating circumstances and they have no clue. It is patently unfair. I have a suggestion. Your Honor, we sat in your office, both sides for a long time to try to hammer out the four corners of how voir dire was going to go. Why don't we stay with what we did yesterday before we came out here. Let this be the parameters. Let this be the ditches that we have to drive through. Judge, if we keep going this way I am going to have to keep objecting, we are going to be here through July. And it is just unfair to the jurors coming in here not knowing things.
THE COURT: I agree with you, it is. They are totally caught flatfooted, not trained, not read the law. I agree with you, they are flatfooted.
RICK HUBBARD: And I would just say, they have been introduced to the fact, what aggravating circumstances--
THE COURT: I agree, they get some of, I agree with you. I don't like asking them, tell me some mitigating factors. The guy yesterday said remorse. That is not one so you flunk. No, that was a great answer, it was an honest answer. I agree with you.
RICK HUBBARD: I do have a suggestion. Can you just balance it, there is aggravating and mitigating circumstances before you go into adding these factors. If Your Honor is going to allow that, I don't know if you are or not.
THE COURT: I kind of like presenting them both because it is going to be presented both ways.
BILL MCGUIRE: And Your Honor already gave your preliminary--
THE COURT: You need to give them both up front and not just give aggravating. So I am going to direct you to say, here aggravating but also perhaps walk in life or however you got to word it. You need to present both of those to him at the same time and not just murder only, just five aggravating factors, just ten aggravating factors. That is how you are doing him. Then, all right, would you consider, that is not fair to him.
BILL MCGUIRE: So, I didn't ask him to come up with his own mitigating factors.
THE COURT: He did.
BILL MCGUIRE: I did not and what I did was, I gave very accurately the definition of what mitigation can be which really is, the way describing cases it is record and character versus background. And I ask him, would that be relevant, punishment for this type of case. And he could say yes, he could say no. He said yes which is great. But he could also say no, if he says no he could maybe not be qualified. So it is a good question to find out if he is qualified or not.
THE COURT: Okay.
RICK HUBBARD: My request, Your Honor, is just, when we are asking him, it is not like, let's go through aggravating. I think we need to start, there is aggravating and mitigating circumstances you may hear.
THE COURT: I kind of like that fashion better because it makes the question a little fair to the Juror who is flatfooted.
RICK HUBBARD: And the second part of what my request would be, first of all, I don't think you can latch them in and say what would you do. I think that is improper. But finally at the very end you have got to come back and say, you have got to bring, come back to those again because that is what, it is the only fair way I know that for somebody off the street that they are going to have both in front of them so you have got to come back to that and be fair if we are going to get to this question of what are your thoughts which I believe is going to far anyway.
THE COURT: The facts presented that aren't, include mitigation, understanding that the Defense doesn't have any responsibility to prove beyond any burden of proof. If you don't present any y'all got a problem anyway. So there is going to be both types of testimony out there, all sorts of testimony out there. And, you know, it is kind of like this. The cases that have gone through, sometime jurors don't know what mitigating or aggravating are. If you say is it worse to kill somebody or kill a child, kill a child. They can identify it, they don't know that it has been defined as an aggravating factor or mitigation factor but they now lean this way or lean that way.
BILL MCGUIRE: Judge, I have got one more thing to say.
THE COURT: Okay.
BILL MCGUIRE: Mr. Long who came in earlier listened to all of your questions and said, yes, appropriate response to all of them, indicated he would have been qualified. When you got to the one, two and three he was, if all the evidence is in the guy is guilty for murder, not aggravating murder, just murder, it is the death penalty for him. We just sort of need to acknowledge there can be people like that that will answer all of your questions, seem qualified, but will also be substantially impaired because they are leaning, they are so predisposed to the death penalty. And it doesn't even have to be automatic. That is not the test, the test is just they, they are predisposed under evidence--
THE COURT: I understand.
BILL MCGUIRE: But how do we square that. I mean, I am just kind of throwing that out there, there are cases where people give qualified answers at certain kinds of questions but they are really something else.
THE COURT: All right. You are not presenting to him the balance of the aggravating factors as child victims and, you know, perhaps--
BILL MCGUIRE: And I am going to get to it. I am one-hundred percent going to get to it, I have already asked him about mitigation. He is not mitigation impaired, he didn't say he would reject it, he didn't say it was not relevant, he said it could be. And I didn't ask him to come up with something, I didn't do that.
THE COURT: You were thinking about it.
BILL MCGUIRE: No, I did not.
THE COURT: You were thinking about it.
BILL MCGUIRE: I think I asked him a very appropriate question.
THE COURT: Bring him back in here, I am ready to move on.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. McGuire will ask you a few more questions.
BILL MCGUIRE: Sorry for the interruption. We were talking about your view that the death penalty is appropriate for an intentional killing and that was a reflection of your value system. I want to ask you some other questions now. Some people would say or could say, you know, let something get the life penalty and live out their years in prison. That is really not sufficient or severe enough to punish the killing of innocent children. Does that describe you?
JUROR: Yes and no.
BILL MCGUIRE: Could you just elaborate on that?
RICK HUBBARD: Your Honor, I am back to--
THE COURT: I am going to let him answer that question, I want to hear the answer.
JUROR: It could be, depending on more details.
BILL MCGUIRE: When you say details are you thinking about the facts of the crime or what?
JUROR: Yes. Like, I mean, was it like one person, was it like one-hundred people.
BILL MCGUIRE: For example, five children.
RICK HUBBARD: Your Honor,--
THE COURT: No, that is what I don't want to get into. I want it both ways, mitigation and aggravating, don't just point one way. Rephrase that question.
BILL MCGUIRE: Sure. So right now, the chair that you are in right now, you are a potential Juror, okay, and that is why we are asking all of these questions. That is why the Judge is very interested in your answers, I am very interested. And you are not going to be forced to do anything or follow any rules unless you get put in one of these chairs over here on the jury. Okay. So we just want your personal, honest, candid views and I think you have been very good about that. I want to ask you a little bit more about that, just your personal view. If we were at the water cooler at work and someone said there is some cases that demand the death penalty, like killing a police officer, risking their lives to protect us, maybe a rape, murder case. What I heard you say earlier was that the death penalty is always appropriate in a case where multiple children are killed.
JUROR: Yes.
BILL MCGUIRE: Now I want to kind of put you over here in the jury box and there are some rules of court I want to ask you about, about some legal principles and just ask you your opinion about them to see if you can follow them. Okay. So some of the rules in court are for me, some for the Judge, some for Mr. Jones but some are for you. And when you take a Juror oath you are stating to the Judge you will try the case based on the evidence and in a penalty phase, assuming the person was found guilty, like the Judge said, you would move into a second phase. And that is the penalty phase, life in prison or the death penalty. Okay.
JUROR: Okay.
BILL MCGUIRE: Now, the first phase, guilty or not guilty, those questions are fact and science can usually prove one of them or not. If a car was red or black, it either was or it wasn't or, these are fact questions, something did or did not happen. Right. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Okay. And the penalty phase for a Capital trial, the jurors, the individual jurors decision is described in the case law as an individual moral judgment. Does that make sense to you?
JUROR: Yes.
BILL MCGUIRE: It is more of an emotional moral judgment, it is not a fact based question. Science can't answer that, it is just really a person's individual position. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: And when you take a Juror oath, if a Juror reaches their individual moral judgment and it is either one or, whatever it is, if somebody on the jury said, we want you to change your position and just come over with the majority just for the sake of getting a majority or unanimous verdict and they abandon their individual moral judgment that is actually against the Juror oath.
RICK HUBBARD: Your Honor, I object to this line. The same objection I made yesterday.
THE COURT: Rephrase that question, please. The objection is sustained.
BILL MCGUIRE: So, if you saw a Juror where it was clear where they had reached their individual moral judgment would you respect that and let them have that?
JUROR: Yes, they would have, they would have their own judgment, right.
BILL MCGUIRE: Right. And in a matter so serious and grave as to whether or not another human being lives or dies, you expect some disagreement on that question, right?
JUROR: Yes.
BILL MCGUIRE: And then we can agree that it would be wrong to basically to try to force somebody to kill a human being when they didn't want to?
JUROR: Correct.
BILL MCGUIRE: And would you be able to end the day with some disagreement. Just say, you know what, we are all individuals, we are entitled to our opinion, it is a serious matter, it is okay, we can send a note out to the Judge and be in disagreement.
RICK HUBBARD: Your Honor, I object to that based on yesterday, your rulings yesterday.
THE COURT: Sustained.
BILL MCGUIRE: But you would respect everybody else, let them have their individual moral judgment?
JUROR: Yes.
BILL MCGUIRE: Okay. I want to ask you about one more legal principle, it is a little unique. And normally we think of jurors speaking with one voice and everybody agreeing on something. Right?
JUROR: Right.
BILL MCGUIRE: From TV the Juror says the verdict of the jury and all twelve agree, right?
JUROR: Right, on TV.
BILL MCGUIRE: Before I went to law school that was my -- so here is the thing, in a Capital case the law says that each individual Juror can decide what mitigation evidence is. And the Judge read to you some statutory ones and I think he told you it is basically any reason not to vote for death. Does that make sense. I want to be a little bit more specific but some Juror can just say I don't want to vote for the death penalty and that is a good enough reason. Does that make sense to you?
JUROR: Yes, I mean they can say--
BILL MCGUIRE: And people can have different reasons. And what I mean is, all twelve people don't have to agree that there is a piece of mitigation evidence that exist. Somebody in this seat could say a Defendant might have had a good relationship with his father and did some good things in life or somebody might say he had a hard life, grew up in poverty. And when it comes to it I am going to sign that the weight of mercy, I am not going to vote for the death penalty. And this person could have a different reason, and this person could have a different reason and this person could have a different reason and somebody could say I don't even have a reason, I just don't want to kill another human being and mercy alone is my position. And you see how they could all be different?
JUROR: Yes.
BILL MCGUIRE: And nobody has to agree on that?
JUROR: Okay.
BILL MCGUIRE: That is another part about the individuality of the penalty phase, is that a principle that makes sense to you and that you could follow?
JUROR: Yes.
BILL MCGUIRE: So I am just going to visit one more thing, I know I said that a couple of times. But I mean it this time, Judge. In that sheet that the Judge went over with you, type one, type two Juror, type three Juror. When I was talking to you earlier, considering everything that we have talked about, the Judge talked to you about, it sounds like if, in a case where you can consider all the evidence, the aggravation, mitigation, life sentence, death sentence, that when it comes to, when it really comes to an intentional killing of an innocent victim it sounded like you were more type one--
RICK HUBBARD: Objection, objection.
THE COURT: I think that is unfair. Rephrase it because you are suggesting the answer.
BILL MCGUIRE: I put everything in there, life, death, mitigation, aggravation.
BILL MCGUIRE: Now, knowing all of that that the Judge talked to you about and the concept of mitigation, concept of aggravation, knowing that the life penalty would be available to some jurors, death penalty would be available. Knowing all of that, everything that we have talked about today, the type one Juror, intentional killing of an innocent person, that type one Juror says the death penalty is the appropriate penalty. Type two Juror would say the life penalty is always the appropriate penalty. And three is it depends but it sounds like if it is an intentional killing an innocent person that you are really more a type one. Is that right?
RICK HUBBARD: Objection.
THE COURT: I will let him answer it.
RICK HUBBARD: My objection for the record, it has been asked and answered by Your Honor. Your Honor,--
THE COURT: It has been asked and answered, I am going to let him ask this.
BILL MCGUIRE: Do I need to restate it?
THE COURT: No, please don't. He has heard it three times.
JUROR: The types, from what I understood was a generalization, not specific for, so, I mean, depending on the crime and the incident it could be life or it could be either one. So that would be type three. It seemed like type one was like always, you know, always death, always life in prison.
BILL MCGUIRE: And it is sort of unfair because you haven't heard evidence. But just knowing nothing more than the person, they got the right guy, convicted, killed an innocent victim on purpose. In that situation are you type one, two or three?
JUROR: Like this specific--
RICK HUBBARD: Your Honor, objection--
THE COURT: I think it is asked and answered.
RICK HUBBARD: Yes.
THE COURT: He said the same answer twice.
BILL MCGUIRE: I disagree, I thought it was more, it was him wrestling with the, it was a generalization type thing. I am just bringing him back to--
THE COURT: You reask him, you took all the other.
BILL MCGUIRE: No.
THE COURT: Yes, you did. You said if it is murder of an innocent person then where do you follow. That takes out the mitigation, the aggravation, the affirmative, takes out everything. You took that out the second time you asked it. He has answered it. And my objection goes further. Now he is getting into specifics, case specific, that is objectionable.
BILL MCGUIRE: I disagree with that.
THE COURT: No. I didn't really get what he said. I have already ruled that your second question, you reasked it, left out everything.
BILL MCGUIRE: Let me take one more shot at this and I want to try to do it in the way that it is, I think the Court will be satisfied.
BILL MCGUIRE: So in all Capital cases they get to the very end. That means that there will be an opportunity to evaluate the State's aggravation evidence. In this case it is multiple victims of murder and--
THE COURT: You are getting case specific.
BILL MCGUIRE: Just child killing, multiple victims, child killing, that is a category, it is not case specific.
THE COURT: It is case specific in this one.
BILL MCGUIRE: Well it is a category, it is like rape, murder, police officer killing, child killing.
BILL MCGUIRE: So that is where we are, are you with me?
JUROR: Yes.
THE COURT: He is confused. I know you are confused, you are listening to me arguing with the lawyers. That is why I make you step out because we do it that way. I want you to understand that my marshaling with the lawyers and telling them to rephrase their question, that is what I get to do. And most of the time you are not in here to listen to it because it is confusing. So reask your question, try to be clear and concise. A So as the Judge was talking to you about the second phase, the penalty phase, that means you as a Juror, if you were on a jury you would have the opportunity to evaluate aggravating evidence, child killing, multiple victims, you would also be able to evaluate mitigation evidence, it could be anything about a person's life, how they grew up, their background, could be anything. You have an opportunity to consider that. And the two penalties would be life and death. And all of that would be on the table. And but the one thing, see, I talked to a lot of people and said, maybe it was self-defense or accident, but that is why I am going back to--
THE COURT: Wait a minute. Wait a minute. His self-defense--
BILL MCGUIRE: He is not guilty.
THE COURT: -- he is not guilty. That is terribly unfair.
BILL MCGUIRE: What I want to bring you back to, some people would say, if the guy really meant to do it, knew right from wrong, intentionally kill innocent victim then the penalty that I am, that I think is the very most appropriate is the death penalty and that you would be more of a type one as opposed to two or three. Is that fair.
RICK HUBBARD: Objection, objection to that question, Your Honor.
THE COURT: No, I think the question ought to be, where do you found yourself.
BILL MCGUIRE: Where do you fall out on one, two and three.
THE COURT: One, two or three,--
RICK HUBBARD: Without the specific facts of this case. That is the underlying problem.
THE COURT: I got you.
JUROR: So somebody, yes, intentionally killing innocent individual, individuals, yes.
BILL MCGUIRE: Type one?
JUROR: Type one.
RICK HUBBARD: Your Honor, that is my objection because--
THE COURT: It is. I will let you come and ask questions. Juror Garrett Johnson Examination By Mr. Hubbard
By Mr. Hubbard:
RICK HUBBARD: Mr. Johnson, I know you have had a long day yesterday and probably a longer one right now. Do you understand, as the Judge said, we have two potential parts to this case?
JUROR: Yes.
RICK HUBBARD: The first phase, we are just trying to decide is he guilty or is he not guilty. Do you understand that?
JUROR: Yes.
RICK HUBBARD: And you understand from the Judge that if you and other jurors were hearing this case and y'all decided he was guilty then y'all have already decided that he acted with malice, that the victims were, has been said, innocent, they didn't cause this. You would have already decided that. Do you understand that?
JUROR: Yes.
RICK HUBBARD: And then you get to the second phase, in that situation. And the second phase is all about what kind of punishment. Now and you understand that?
JUROR: Yes.
RICK HUBBARD: Now, did I hear you correctly, if you get to that other phase and determine life or death you would want to hear everything, all the facts, all the issues that could be brought forward to say, here is aggravating things that may, things that we didn't talk about maybe in the first part but things that show this case may be worse. And then there is things that the Defense might present or that might come out in the case even as we present it that show that maybe there are things in favor of the Defendant. Do you understand that, that you might hear those things.
JUROR: I am sorry.
RICK HUBBARD: When we get to that second phase you have aggravating and mitigating circumstances?
JUROR: Yes.
RICK HUBBARD: Would you want to hear all of those before you sentence somebody?
JUROR: Yes. Wouldn't all of that be done in the first phase, right?
RICK HUBBARD: No sir, no sir. That is why I was getting there. It got really confusing a while ago, didn't it, with all of those questions. The first half is he is guilty or not guilty.
JUROR: Okay.
RICK HUBBARD: Once you decide somebody is guilty then and only then do you consider punishment.
JUROR: Okay, right.
RICK HUBBARD: And punishment in this type of case would either be life or death. And my understanding is you can consider either one of those options.
JUROR: Yes.
RICK HUBBARD: And in that second phase, in considering those options, you would hear aggravating circumstances, things that talk about that murder that might give you more specific information that might be bad about the Defendant. But you also might hear mitigation factors that may be in his favor. Now, if you are on a jury and deciding whether he gets life or death would you want to hear both the good and the bad?
JUROR: Yes.
RICK HUBBARD: Would you feel like you need to have that before you can truly issue a verdict of life or death?
JUROR: Yes.
RICK HUBBARD: And you would want to?
JUROR: Yes.
RICK HUBBARD: I think that is all we can ask you, Mr. Johnson, thank you so much.
THE COURT: All right. Good deal. We will put you in the hall for a second and bring you back in here in a moment. (Whereupon, the Juror was excused from the courtroom.)
BILL MCGUIRE: Your Honor, move to strike for cause. When the Juror understood that the evidence, that it was a deliberate killing, even when I put everything in mitigation, life is available, death is available, he came to type one. He is like, he just didn't know everything when he decided type three. But when he learned that it wasn't self-defense, accident, intentional killing he said he is type one.
THE COURT: There you go again. Self-defense is not guilty, accident is not guilty. It is guilty, all of that is now off the table. It is confusing to these poor jurors, the aggravating factors has got to be shown in the guilt of innocence by necessity because it is part of the group anyway and that is confusing to them. There is death of a child, that is one of the aggravating factors so they are already hearing it, it is confusing to them like you have got to tell them the aggravating factor again. That is what they are not getting. This kind of a hard concept to get is, what do you mean again.
BILL MCGUIRE: Of course, he came out as being automatic death penalty on murder with no aggravator. He said, yes, that's me, the death penalty.
RICK HUBBARD: Your Honor, this was also the Juror that thought all of that was in the first phase because he was so confused which is ultimately the bedrock basis of all of my objections. It is misleading and confusing somebody who as Your Honor is noted is coming right in off the street. That is the problem.
THE COURT: I don't know how y'all are going to, if you continue to ask questions, if I continue to allow y'all to ask questions in this fashion how would anybody qualify unless they are a type two and then they are not qualified. That is kind of the way you are asking the questions.
BILL MCGUIRE: Well, I would disagree. There is no magic silver unicorn question that we have all agreed on that is the perfect question. It is a confusing subject, it is difficult to do this and I am trying to do it by just using plain English addressing one factor at a time.
THE COURT: See, what you did, what you do, what you did twice is. If this is proven and this is proven and this proven then the death penalty is appropriate. You leave out the always and then when you get to life you put it in there and that is not fair either.
BILL MCGUIRE: Maybe that I ask it two or three times, maybe I am trying to get it right.
THE COURT: I think we have got to work on your questions because you keep going with the same question over and over until you get the answer you are talking about.
BILL MCGUIRE: Judge, I mean, I don't think anyone thinks that me asking a question can change his personal opinion as to whether the death penalty is the only or most appropriate punishment, just by asking a question. I don't have that talent to get him to say, I am going and put inside in him an opinion that he should automatically kill people for the offense of murder. I can't do that and I do request the latitude to break it down, address these issues individually. I am doing it as simple as I possibly can, it is a terribly difficult subject to talk to these people about it. It is hard. And to say that we have to put more stuff in our questions to make sure it is all, every question has everything in it, it is impossible and we don't have the talent to make somebody have the belief and personal opinion that death is always the appropriate punishment when somebody intentionally kills an innocent victim. I don't have that talent, we can't do and we need to ask for the little, tiny, little bit of latitude to be able to ask these questions this way.
THE COURT: I will give you a lot of latitude but y'all get so case specific.
BILL MCGUIRE: It is category specific, Your Honor.
THE COURT: You are calling it category specific, he is calling it staking. Y'all are saying the same thing and you think it is fine and he thinks it is the other way.
BILL MCGUIRE: Category specific would be Mr. Juror, some people might say that the death penalty is always appropriate in some category of cases, like a rape, murder, child killing, police officer.
THE COURT: Let me rephrase my question. If you have multiple children killed, they are innocent, that is what you did.
BILL MCGUIRE: So the case law is, can it be a fair and impartial Juror in this case and he might not be and that is why we have to focus on child killing, we have to. Multiple victims, child killing, we have to get that out. What if he says, no, no, not for me, I have three kids, child killing. What if he says that, that is what you need to know, Judge.
THE COURT: I do need to know that but he didn't say that.
BILL MCGUIRE: He did say that.
RICK HUBBARD: Two things, one, you brought that out in your charge but the problem is with the question about can I put something in their hearts and minds with one question. I tell you what you can put in their hearts and minds with that one question and it is confusing and that is what I think is evident. This Juror, on my, when I got up was confused about mitigating and aggravating and when they come about. I have a suggestion. After you rule on this Juror can we maybe take a break and maybe re-huddle just to see if we can make things go faster.
THE COURT: I want to try to phrase the question, can you impose either penalty as opposed to, do you think only one penalty is appropriate, which is it. Maybe that is a better way to characterize it.
BILL MCGUIRE: And, Judge, that is not a legal ground.
THE COURT: He is saying, let's huddle, that is not an objection but that is something we are going to do.
BILL MCGUIRE: Your Honor, I want to take a page out of Mr. Hubbard's playbook and tell you this. Mr. Young and I have been Counsel in every Capital trial in South Carolina since approximately 2009. And every Judge has let us ask these types of questions.
THE COURT: Judge Couch didn't.
BILL MCGUIRE: Child victim, yeah.
THE COURT: Yeah but he kept calling you back, quit asking that question because I read the transcript thoroughly.
BILL MCGUIRE: And he would listen to mitigation in evidence.
THE COURT: And you picking out the two you want only, the aggravators.
BILL MCGUIRE: The test is, can a Juror be fair in this case based on this evidence, this type of case. That is why we have to do it, every Judge has allowed it, every Judge. For the record, can I preserve the record just very briefly, Judge. That if you were to allow this Juror to sit it would violate Mr. Jones right to a fair trial pursuant to the Sixth and Fourteenth Amendment and also pursuant to the holdings in Dickerson, Witherspoon, Illinois. And, Judge, I mean, I think you are aware of this but the law in the cases if we exhaust our strikes and one Juror that the Supreme Court thinks is impaired then it all comes back.
THE COURT: I find Mr. Johnson qualified. I think he was confused by the piecemeal question you asked. When you led him, suggested the answer that he was mostly likely a type one. Every other answer he gave was, he wanted to hear, he wanted to hear, he wanted to hear everything and he would consider everything. He said that repeatedly, totality of everything. He was openminded, and a listening Juror, I find him qualified. All right, bring him back, please.
(Whereupon, the Juror came into the courtroom.)
THE COURT: Mr. Johnson, you are still under oath, you will remain under oath. You have been determined to be a qualified Juror. That does not mean that you will be seated as a Juror. You have got the card to the website, go on there Thursday and see what it tells you to do as a qualified Juror. You may have to come back in or check back in. Just watch that website to determine when we need you back in. In the meantime you are still under oath, do not communicate, discuss with, ask questions about, respond to questions about and avoid media reports of the case.
JUROR: Okay.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: All right, I will ask you that when I see you again. Okay.) (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a short break because I need one and then we are going to talk about how to streamline.)
(Whereupon, a short break was taken.)
THE COURT: All right, we are back in order. We had a bench conference and we were discussing the individual moral judgment and the line of questioning that the Defense was proposing that they would be allowed to ask. The way the last went, kind of summarizes. You understand there is a term called individual moral judgment. Everyone may have that. Would you respect others in whatever individual moral judgment they may have as well as they should respect theirs, everybody act in a civil manner. And there may be a time when everybody agrees or disagrees. The discussion at the bench was, what follow-up question to that would be allowed to ask. And Mr. Young, let me hear you on that. What question do you propose to be asked after that.
BOYD YOUNG: Your Honor, the Defense question would be, if one Juror in their individual moral judgment was determined that life was the appropriate punishment then the punishment would be life. That if the jury can't reach a unanimous decision or all twelve individual moral judgments are not in agreement the Judge will take the case and sentence to life. Are you okay with that, can you follow that law, to be asked after that.
RICK HUBBARD: Two problems with that. First, the law, case law says that jurors know the consequences or, know the consequences of their sentencing. So life means life, we can't get around that, life means you die in prison. Death means just that, if you sign that, that death sentence is a death verdict. It is like a death warrant. They know the consequences of that. If they can't reach a decision then it is out of their hands. They aren't sentencing. So, there is no consequence that they need to be apprized of. But here is the real bedrock problem with what they are proposing, if Your Honor needs to read that I will let you read it first.
THE COURT: Keep on.
RICK HUBBARD: My objection is that it minimizes the jury's responsibility. There is case after case saying that if we in any way told jurors they don't need to worry about something that is going to be a problem.
THE COURT: This is where I think I want to stop it is questions of the sort of, the last question asked on several different jurors in another case that people were involved in was, the Judge will charge you in the sentencing phase decision making process. The decision is called individual moral judgment. This is a question, we would expect some disagreement and the case may be so significant in a case as important as this. Could you respect or let people have and keep their own individual moral judgments. The answer was given and they stopped. That was Mr. McGuire actually. I read another one that was you, Bill's question in another case. And I am very comfortable with that.
RICK HUBBARD: Yes, sir. To finish my thought though too and why I would like to stop right there--
THE COURT: I have ruled.
RICK HUBBARD: The second question, is that where your ruling is--
THE COURT: That is where I am comfortable right there, I don't think y'all should go past that.
RICK HUBBARD: Okay, fine.
THE COURT: Because I am concerned that if the Juror knows they don't have to make a decision, come to court and they can bail out real quick.
RICK HUBBARD: There is case law on that.
THE COURT: We don't have any moral responsibility invested in this and we have gone through four weeks of trial, I want the jury to be very aware they have to make a unanimous decision. If they don't make a decision, I know what the statute is. I think the jury knows that they have got to impose a sentence in the sentencing phase. If they unanimously vote for life that is the sentence. If they unanimously vote for death then that is the sentence. If we don't reach a verdict then the Judge gets to it, I think that puts the whole case in an awkward position.
BILL MCGUIRE: Your Honor, may I be heard?
THE COURT: Yes.
BOYD YOUNG: Your Honor, we would object to the limitation. Jurors are told they can vote for life for any reason, right?
THE COURT: Yes.
BOYD YOUNG: Or no reason at all or mercy alone.
THE COURT: Sure.
BOYD YOUNG: And, jurors, you can't expect jurors who say, well, we are going to respect people's rights, have no reason, I don't have a reason, I just feel like it is appropriate and this is what I want to do, to sit right there and get beat up by jurors who want to vote a different way. The United States Supreme Court labels it the decision about whether or not another person lives or dies is an individual moral judgment. That is not my language, I didn't come up with it.
THE COURT: I understand.
BOYD YOUNG: A long history of United States Supreme Court cases. And in South Carolina decisions come about in one of three ways. Twelve individual moral judgments in agreement for death, that is the appropriate punishment. Twelve individual moral judgments did agree for life, life is the appropriate punishment or they agree, disagree in which case the Court gives a life sentence. That is the statute, all we are trying to do is tell the jurors the truth so that they can make a decision. We are not trying to hide the ball from the jurors. And if you don't tell the jurors about the third option that is based in the statute as to how they arrive at a verdict they labor under the misconception that if they can't reach unanimity that the case will have to be tried again. And Your Honor can't allow a jury to make a decision about whether or not Mr. Jones lives or dies under the false pretense that by failing to read unanimity on the each individual juror's individual moral judgment then the case will have to be retried again. And all we are asking for is to tell the jurors the truth of what happens. If all twelve of them decide for death there is death. All twelve of them decide for life it is life. But they will deliberate, no one has instructed them not to deliberate. They need to know that if they can't reach an agreement that is okay, the law allows them to be, to not be in agreement.
THE COURT: I don't want to go that last step, I am just, consistently with these jurors in this other case that is where y'all stopped or at least the pages I have got. Y'all did it with several jurors, exactly what we are talking about. So if somebody has a different moral judgment than you, you can respect and you wouldn't want somebody imposing their moral judgment on you, you would respect them. And likewise you would respect theirs. And I think in one witness Mr. McGuire said, if you saw that and you thought somebody's moral judgment was being imposed on you would let the Judge know that it was getting non-civil or a little bit heated, whatever the words were. That seems to be appropriate too, the one, we can agree or disagree and maintain my individual moral judgment, appropriate question.
BOYD YOUNG: I understand the Court's ruling. I am not going to argue with the Court's ruling, the Court understands our objection.
THE COURT: Okay. You want to try another one, or y'all want to eat lunch and come back.
BOYD YOUNG: I like that idea.
THE COURT: It is 12:20, let's go eat lunch, 1:30, an hour and ten minutes.
(Whereupon, a lunch break was taken.)
THE COURT: All right, are we ready to get to work?
BOYD YOUNG: Yes, sir.
THE COURT: All right. Before we bring the next Juror, Mr. Young, you have an issue you want to present before I bring a Juror in.
BOYD YOUNG: Yes, sir.
THE COURT: All right. Go ahead.
BOYD YOUNG: Your Honor, as the Court is aware there is a newspaper stand out in front of the Court House where the, it looks like The Chronicle, The Dispatch News, Lexington County Chronicle is the paper and it was filled with the headlines, it says, Mass Slayer's Trial opens out in front of the Court House. So everybody coming in, all the jurors coming in are walking past this and it has been taken out now and it is now empty. I don't know if it is refilled or not. But I am going to put in a copy of a picture of the front of the newspaper box, Court's number 67 and renew our motion for a change of venue, Your Honor.
THE COURT: Does the State want to be heard?
RICK HUBBARD: Your Honor, I believe it is a voir dire question, just publicity. Obviously I frankly don't even know where the newspaper box is down there.
THE COURT: The Clerk's office saw it first, they brought it to my attention sometime at mid-morning. So I believe it is a voir dire question, the media. And so respectfully I will deny the request for a continuance, transfer of venue. (Whereupon, Court's Exhibit 67 was marked for identification only.)
THE COURT: The next Juror is going to be number 240. Are y'all ready?
RICK HUBBARD: Yes, sir.
BOYD YOUNG: Yes, sir. (Whereupon, Juror 240, Thomas Langdale entered the courtroom.)
Thomas Langdale, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your last name.
JUROR: Thomas Langdale, L-A-N-G-D-A-L-E. Juror Thomas Langdale - Examination by The Court
By The Court:
THE COURT: Now, you have been placed under oath to tell the truth. All right, my name is Eugene Griffith, I am the resident Judge from over at the Eighth Circuit and I have been assigned this case here today. And it is an opportunity for us to get to know you a little bit and ask you some questions. I will remind you that since you are under oath all of your answers need to be truthful and candid. It is kind of, we are trying to gather information about you, the lawyers are, the parties are, the Court is. And so a lot of these questions are going to kind of maybe be opinions or recollections, there is not a right or wrong answer. It is just give your, it is an opinion, give it. So just be truthful with it. If they ask you what color you drive you tell them the right color but that is an example of a very easy question, what opinion is the color of your car, unless it is some odd color, you know. Truthful answers and no right or wrong answers, you will be okay. Do you understand.
JUROR: Yes, sir.
THE COURT: First part of this, I am going to explain some things to you, ask you some questions and go over some of the criminal procedures and whatnot of how mechanically a trial proceeds and kind of what you can expect. And the lawyers will then get up and follow-up on some of my questions and they will ask you some other type of questions. Now, first and foremost, qualification of jury's take a long time, you are the fifth one on here and it is Wednesday after lunch. I am not sure exactly how long it will take to get the jury, qualified jurors paneled and then selected from that panel. So if you qualify as a Juror that doesn't mean you get to sit on it, it means you are part of the group and may get selected from. So it gets narrowed down. The trial may take into May, almost into June. Do you have anything scheduled on your schedule, vacation, are you getting married or anything like that here in the next several weeks that is going to affect your ability to serve?
JUROR: No, sir.
THE COURT: So if you were picked you could serve?
JUROR: Yes.
THE COURT: Now, when I introduced myself on Monday and I made you take an oath saying I won't discuss the case with anybody and I won't let anybody discuss the case with me. Have you followed that oath?
JUROR: Yes sir, I have.
THE COURT: Has anyone tried to discuss the case with you?
JUROR: My wife has asked me multiple times but I told her not to ask.
THE COURT: And you could say Judge Griffith says not to discuss the case, that is a good answer. Now, the media has been reporting certain things and they get to do that and some television reports, newspaper, whatever. Have you had a chance to observe any of those, have you seen any of those?
JUROR: I heard on the 4:00 o'clock news Monday, they briefly started and I just turned the TV off and walked away.
THE COURT: Okay. So you didn't consider that but you minimized your viewing of that?
JUROR: Yes, sir.
THE COURT: Fair enough. Any other opportunities to see anything on the news?
JUROR: No, sir.
THE COURT: Okay. Thank you for following that instruction. Now, we gave you some preliminary papers to review, I am going to get to those in a minute. But you are a member of your immediate family, that would be your wife or your children, a member of any organization that is advocating for victims rights which is Mothers Against Drunk Driving, Students Against Drunk Driving, Citizens Against Violent Crime, Bikers Against Child Abuse. Any advocacy groups like that?
JUROR: No, sir.
THE COURT: Now, are you or a member of your immediate family contributed to the Troopers Association, Sheriffs Association or any group that supports law enforcement?
JUROR: No, sir.
THE COURT: Very well. Are you or a member of your family connected in any way to any of these lawyers here in the courtroom?
JUROR: No, sir.
THE COURT: Are you connected in any way to any of the Jones' family?
JUROR: No, sir.
THE COURT: All right. Now, the long list, potential list, I noticed that you brought a sheet of paper. Did you jot down some of their names?
JUROR: Yes, sir.
THE COURT: My question to you, you reviewed that list and had ample time to do it by now?
JUROR: Correct.
THE COURT: Are any names on that list, are you connected either by blood, marriage or close personal friends to any of those potential witnesses?
JUROR: No, sir.
THE COURT: Now, do you have any relationship with those people, social, church, business relationship with any of those potential witnesses?
JUROR: No, sir.
THE COURT: Not connected to them?
JUROR: Not connected to them.
THE COURT: All right. I am going to give you a thumbnail sketch and I am going to call it a big brush, what to expect as the case gets started. Right now we are in the preliminary stage of trying to get a jury together. And so in this case Mr. Jones is charged with five counts of murder. I want to define murder for you first because you have kind of got to understand some of my follow-up questions. Murder is defined as the killing of another with malice aforethought. That is the actual definition, that is very short and concise but you have got to understand parts of it. Malice means wicked, evil, depraved heart, ill-will, hostility. That is what malice means towards another person. Now, the definition of murder excludes just cause or an excuse for killing somebody. It doesn't include that. Now when the State alleges murder certain aggravating factors that are defined in our statutes, the State can then decide whether or not it wants to seek the death penalty.
And so the State has to determine whether or not it wants to do that or can do that. Now, once a person is accused of a crime, any crime whatsoever, the State moves forward with an indictment. From that time all the way until the trial is conducted and the jury reaches a verdict, that person accused is presumed innocent. That presumption remains with them all the way through the entire trial until the jury makes a decision. Okay. And in most criminal cases once that decision is made, guilty or not guilty, then the Court or the Judge imposes a sentence, whatever the law allows on whatever the crime may have been. Now, in a, the State must also prove the elements of whatever the accusations are and in this case it is murder. But whatever it is there are certain elements, element of this, element of that, those elements. The State has to prove each and every element beyond a reasonable doubt, meanwhile the Defendant is presumed innocent, Mr. Jones is presumed innocent sitting right there.
In most cases the Judge determines punishment. A Capital case is different. In a Capital case the jury determines punishment if necessary. All right. Now, so because a Capital case is different it is divided into two phases, part one, part two or phase one, phase two. Phase one is guilt or innocence. And so that is tried in a trial by itself and then the jury makes a determination of guilt or innocence. If innocence is found then there is no stage two so it can end there. If a guilt of a Defendant is found in a Capital case then it goes to stage two which is the punishment phase, decide what punishment is. In those cases the jury's have two options, life without parole, which means you live out the balance of your life, you never get out, you die in jail or death by execution, two choices, no in between. Those are the two options for the jury. And if the jury votes for life without parole the person lives, if votes for death, that is the sentence that is imposed. Do you understand?
JUROR: Yes, sir.
THE COURT: Okay. Now, what I am describing to you, those are giving you instructions on the law. That is what the Court, that is what Judges do. Jurors make decisions on facts, what something was, answers questions of fact. In this case also they decide, impose punishment if necessary. Judges instruct the law. When you hear these facts you consider them with commonsense and they tell you what the law is, that is what I do as a Judge just about every day, I explain law and instruct law. That is part of my responsibility and then I kind of manage the trial. Now, let me explain to you two parts of the Capital case, that is the guilt or innocence phase. In that phase the State has to prove murder, each and every element beyond a reasonable doubt. The jury then considers guilt or innocence. If it is innocence it stops, if it is guilty it goes to the punishment phase.
Now, in the punishment phase the State then has got to prove or reprove an aggravating factor which are, there are several aggravating factors and they are all in the statutes which are in the blue books behind you, list if you kill a police officer, if it was kidnapping, rape, that kind of thing involved with the murder, children, multiple victims is also an aggravating factor defined in our statutes. The State has got to prove those also beyond a reasonable doubt in the sentencing side of it before a jury makes a determination. The jury also gets to hear what is called mitigation evidence. And mitigation evidence is reasons you can give someone a life without parole sentence or not. Now, so during the sentencing phase, after guilt is determined the jury considers aggravating factors and mitigating factors, instructions the Court gives and they make a determination which of the two sentences to impose. All right.
Now, I explain to you also, the State proves murder and an aggravating circumstances. The jurors are required to consider any mitigating evidence which is presented. Do you understand that once the State has presented the case on a punishment and the Defense presents whatever it wishes on mitigation that the two options of the two sentences are the two options. One is not required, it is like there is a common misconception to that, guilt is found and the death penalty is automatic, that is not the law of South Carolina, common misconception. There are two options. It depends, those are the instructions that I give to the jury. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, do you understand that if the jury doesn't-- mitigating circumstances and the State proves guilt and an aggravating factor the jury still does not have to impose the death penalty. Do you know that?
JUROR: I did not know that.
THE COURT: If a jury unanimously decides life without parole that is the sentence. Okay?
JUROR: Okay.
THE COURT: Now, I handed to you earlier types of potential jurors. And I will explain to you very briefly, you don't have any of the facts in this case and I am well aware of that because a lot of facts in the case. A lot that you will hear, you have heard nothing other than my comments thus far and the accusations. Now, the accusations aren't proven. Now, I have sent this summary of the three typical types of jurors. Type one Juror is a person who listens to the facts and evidence and the State proves beyond a reasonable doubt murder and any one of the aggravating factors and that person has already kind of decided they are always going to give the death penalty. Type two is a little different, listen to the facts and evidence and they believe the State has proved its case beyond a reasonable doubt of murder and aggravating circumstances. They are always going to give life imprisonment perhaps for some of their personal beliefs. People can do that. Type three is the type of Juror who, if they are convinced that the State has proved its case beyond a reasonable doubt to the murder and one of the aggravating factors then they can listen to mitigating facts, defenses, affirmative defenses. I will define those to you in a moment. But they will listen to whatever is presented to them, don't have their mind made up, they want to listen and then they make a decision of what they think the punishment should be. Having reviewed what I have basically given you thus far and the explanation of the three types of jurors how would you classify yourself under which of those types.
JUROR: Type one.
THE COURT: Okay and are you pretty firm in that?
JUROR: Yes, sir.
THE COURT: Okay.
THE COURT: Anything further?
BOYD YOUNG: No, Your Honor.
THE COURT: You are free to go and that is what, no right or wrong answers. Thank you for your candor. You are free to go.
JUROR: Thank you.
THE COURT: Lawyers, do you like the types in my questioning. Is it about right?
RICK HUBBARD: Yes sir, that is fine.
BOYD YOUNG: I thought we had agreed to add hatred in the malice.
THE COURT: It is in there, I am ab libbing a little bit trying to, because of the pace. Bring me another one. (Whereupon, Juror number 473, Jacob Whitten entered the courtroom.)
Jacob Whitten, being first duly sworn, testified as follows:
THE COURT: State your name and spell your last.
JUROR: Jacob Whitten, W-H-I-T-T-E-N. EXAMINATION BY THE COURT
By The Court:
THE COURT: Good afternoon, Mr. Whitten. My name is Eugene Griffith, I am going to ask you some questions to start with and then the lawyers may get an opportunity to do the same. Now, you have been placed under oath. Your answers to my questions and all of your answers need to be truthful. Now, I remind you right now, no wrong answers, nothing right or wrong, some of these answers might require you to give personal opinions, so just candor. Okay.
JUROR: Yes, sir.
THE COURT: Now, you took your oath and this is an opportunity for the lawyers to gather some information on you. Part of the oath I gave you Monday was, don't talk about the case, don't let anybody talk to you about the case. Has anyone tried to talk to you about the case since Monday?
JUROR: Nobody has tried to talk to me about the case. My mom mentioned that she heard that this case specifically was coming up and I told her I was a Juror. We didn't talk any further about it.
THE COURT: Okay. And you understand my instructions, don't discuss it with her?
JUROR: Yes, sir.
THE COURT: Okay. You are going to follow that instruction?
JUROR: Yes, sir.
THE COURT: Very well. Have you seen or heard anything on the media, television, internet, newspaper about this case or anything?
JUROR: No, sir. When you asked me initially I can think of hearing of this case before. Thinking back I may have heard of the result, I didn't hear of the name or any of the facts or anything like that though.
THE COURT: And so whatever that was, that was a long time ago, you don't remember anything specific about it?
JUROR: Right.
THE COURT: Fair enough. How old are you?
JUROR: I am 22.
THE COURT: What are you reading?
JUROR: I am reading reinforced concrete masonry. I work for an engineering company and I was actually suppose to have a test today.
THE COURT: Were you taking a test to become an engineer?
JUROR: No, not to become an engineer, I just do material testing, concrete, soil, masonry.
THE COURT: My future son-n-law did that before he became an engineer.
JUROR: Okay.
THE COURT: And did a lot of concrete structural studies and things like that?
JUROR: Yes, sir. I find it interesting.
THE COURT: It can be. Now, you live on your own or you live with your folks?
JUROR: I live with my grandma and my mother.
THE COURT: Now, I am going to ask you questions in that regard so those are members of your immediate family. You or your immediate family, any of those folks member of any organization that would advocate for victims rights. MADD mothers, SADD students?
JUROR: No, sir.
THE COURT: Criminal advocacy groups, Citizens Against Violent Crimes?
JUROR: Nothing like that, no sir.
THE COURT: Any members of your immediate family, household, make contributions to the Sheriffs Association, Troopers Association or law enforcement support of associations?
JUROR: I believe my grandma contributes to the law enforcement association.
THE COURT: Okay. Now, do you, does she go to meetings or you just know she gives money to get the sticker?
JUROR: I just believe she gives money and gets the sticker.
THE COURT: Now are you or a member of your family connected to any of these lawyers to your knowledge?
JUROR: No, sir.
THE COURT: You or a member of your immediate family connected to any of the Jones' family?
JUROR: No, sir.
THE COURT: Now, I gave you a list, this is my copy, the same list of potential witnesses. Understand the lawyers put all potential witnesses, doesn't mean they will call them all, they have to list them all out because if they don't, we are planning on just calling these special, the most important witnesses. That is what they plan to do. But something may come up and they call someone else. They kind of have an idea of what they are going to call. But the rules make them produce all potential witnesses so that half way through the trial, we didn't intend to call that witness but now we need to and it is your brother. Now, wait a minute, you weren't ask that, that wasn't fair so potentially any of these could be called, likely all of them will not be called. Are you connected by blood, marriage, close personal friends with any of those witnesses?
JUROR: No sir, I don't believe so. I recognize a name, Theron Smith, I have a cousin named Thereon Smith but I know he is not a pastor at any church.
THE COURT: So you don't have any social, personal, business relationship with any of those folks?
JUROR: No, sir.
THE COURT: Not connected to any of the potential witnesses at all?
JUROR: No, sir.
THE COURT: I am going to give you a little summary, a kind of big brush summary of the criminal procedure of South Carolina because my job as a Judge is to instruct the jurors and the lawyers and make rulings on the law. The most important is to instruct on the law. Part of my job today, this week, is try to pick a fair jury for this trial. I don't pick the jury, I help qualify jurors, able to listen to the case, free from any preconceived notion of what happened. And the lawyers take turns and the jury gets selected randomly more or less. So my job is to make sure that process is done fairly. So I am going to explain some things to you and what maybe to expect if you are placed as a potential Juror, what you can expect. Okay?
JUROR: Yes, sir.
THE COURT: One of my biggest challenges is people see things on TV, internet and my job is to instruct the law consistently and correctly. And in this case Mr. Jones has been indicted for five counts of murder. And I tell you, the indictments are just an accusation by the State telling him of what to be prepared to come into court to defend himself on. Everybody that is accused of anything, by a Government Agency, the State, you are accused of a crime, until that charge is resolved, whether a jury trial or otherwise, that person is presumed innocent all the way through up to the trial, even through the trial until the jury reaches a verdict, presumed innocent. The presumption can be removed by the State convincing a jury beyond a reasonable doubt unanimously of all the elements in the crime. And I can explain reasonable doubt later but the State has got to prove the guilt beyond a reasonable doubt and then the presumption goes away.
The State can't do that, if they fail to meet the burden then the presumption overwhelmed them and not guilty is the verdict. Okay. Now, I want to define murder for you so you kind of understand what it is and then I am going to define some other things, aggravating factors and mitigating factors and statutory defenses. So I will walk you through slow, not going to give you an exam at the end but I want to explain to you so you will understand what I am trying to help organize for you so you will understand it a little bit. Murder is the charge in this case, five counts. Murder is defined as the killing of another person with malice aforethought. That is the entire definition in the statute. That is what murder is defined as. Now, malice is defined by our courts in the statute as wicked or depraved heart, hatred, ill-will, hostility towards another person. Now, the definition excludes just cause or excuse, that is not murder.
Murder is the intentional killing of another with hatred in your heart. And when the State alleges that offense they can seek, in a Capital case they can seek the death penalty if they can also prove at least one of the aggravating factors. There are numerous aggravating factors also. These are the code books handed down by the General Assembly, the laws are written out and organized. Aggravating factors are such as killing a police officer, killing a child, kidnapping with the murder, rape with the murder, those are aggravators. Killing more than one person, that is an aggravator. The State has got to prove an aggravator along with the murder, to make, where they want to try to seek the death penalty, they have got to prove that also. So it is like an additional hurtle they have got to overcome to seek the death penalty.
So when you qualify a jury for a Capital case the process is a little bit lengthier, you get past what is called voir dire questions but the questions to see if you have got preconceived notions and whatnot, can you be fair and impartial, that is what we are looking for, in a case of that type. Now, I want to explain to you that South Carolina law doesn't allow a person to be executed. The State only convicts them of murder. Murder has another sentence. In order to seek the death penalty it has got to be murder plus something else, an aggravating factor is what that is and the State has got to prove the aggravating factor also beyond a reasonable doubt. Now, it is real early on, you haven't heard any facts and any witnesses from anybody. Now, there are certain statutory defenses people can claim in a murder. Some of those are, accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, entrapment, duress, alibi. Those are some defenses.
There is also mitigating factors which will be reasons to not get a death penalty. A lot of testimony coming in a trial such as this, a wide variety of it. Now, knowing you have heard nothing about this case, the little bit you heard on the media and you have heard here today which was the accusation to five murders and the State is intending to seek the death penalty. I handed to you a sheet that had types of potential jurors. Now, like I said, no testimony has been presented but the State has got to present its side of the case first to try to convince the jury of the guilt of the murder. If they don't, not guilty verdict the case stops there. If they find guilt there then they go to step two and you will hear testimony, mitigating factors, potential defenses, potential things, aggravating factors the State has got to prove in that stage of the case. So, first, it is either guilty or not guilty, if it is not guilty the case stops, no stage two.
Go to stage two the State has got to prove the aggravating factor but the jury gets to hear a lot of mitigating factors. This sheet for potential jurors, it outlines three typical types. Type one is a person who listens to the case. The State proves the murder beyond a reasonable doubt, finding guilt is found, then the State proves an aggravating factor beyond a reasonable doubt, murder and an aggravating factor. Now, that type of Juror, I am always going to give the death penalty, that is what I am going to do. It is my belief. Type two is a little different. The State proves the murder, we go to stage two of the sentencing phase. The State proves a mitigating factor. Type two jurors says, you know what, I can't sign my name, I cannot do anything other than give a life without parole sentence. Once you get to sentencing in a Capital case, there are only two sentences. Find him guilty, the jury does the sentencing, not the Judge. Two options, life without parole or death.
The only two choices you have got. So type two, I can't sign a verdict for death penalty, I can sign life without parole. That is their personal belief, they can't go through the death penalty, they can go for life without parole. That is a type two person. Type three, they don't have their mind made up. The State proves the case, guilty. You go to step two, the State proves aggravating factor beyond a reasonable doubt. Then the testimony is presented, more aggravating factors, mitigating factors, potential defenses, whatever, more factors. And that type of Juror says, I want to hear all of those things, listen to everything, keep an open mind, I can't commit to either right now until I hear everything. Once I hear everything then I can go to either one. I can go life without parole or I can go death penalty. In a Capital case like this the death penalty is not automatic, life without parole is automatic, one of the two. Now, I have given you a very brief description of, without any facts, you know very little so I am kind of putting you on the spot. What type of Juror would you classify yourself as.
JUROR: I would have to say type three, I am not really all the way right or all the way left. I have to hear, like you said, make sure all the elements are met as well, I think mitigating factors would be important for me to have to listen to before I make a decision like that.
THE COURT: I will give you some mitigating factors in a minute so you can understand what they might be. And sometimes you are aware of what they are, you just didn't know they were called mitigating factors. Now, in this case I told you the State has accused Mr. Jones with murder five times, his five children. That is the accusation, he has plead not guilty by reason of insanity. That plea creates a little difference, another aspect of the law that I am instructed to explain to you. When he entered that plea, like I say, you are going to hear a lot of testimony about a lot of things. The State is going to present a bunch of witnesses, the Defense may present some witnesses, he is still presumed innocent. But you will hear a lot of testimony and evidence, you will hear a wide variety of things. I am going to instruct you, as we go and at the very end, and in some of these things I don't have a preprinted instruction on a murder case. I kind of know what is coming but sometimes there is aspects of the case that I am not aware and so jury's can't consider certain aspects of the case if it doesn't apply. Like for instance, one of the mitigation, if the person is under 18, that is not the case today so I wouldn't put that in my instructions. Y'all consider this because he is under 18, he is not under 18. That is a real simple example. I would tailor my instructions consistent with the facts that have been presented for the jury to consider. Okay.
JUROR: Okay.
THE COURT: Now, you will hear a wide variety of testimony, you will hear evidence of aggravating factors, mitigation. And I explained to you, the mitigating thing is a reason during the sentencing you might consider or a reason you assigned to giving life without parole, to not go with the death result. Now, evidence of affirmative defenses, such as accident, guilty but mentally ill, not guilty by reason of insanity. You will hear testimony that may support that. So, until all of that testimony and evidence has been presented I can't tell you exactly what my instructions will be, can you accept to follow my instructions at that time.
JUROR: Yes, sir.
THE COURT: Now, I think I gave you some potential defenses but if the testimony is presented, the evidence presented regarding potential defenses which could be accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, entrapment, duress, alibi, necessity. I would define those then, can you consider, meaningful consider and evaluate the testimony that is presented regarding those and the instructions that I give at that time?
JUROR: Yes, sir.
THE COURT: And also regarding mitigation. There are several statutory mitigating factors that are outlined and then there are some that aren't even listed in the statute and you can consider those too. Statutory mitigating factors may include that a person accused has no significant history of a prior criminal act for violent, never been in trouble before. A murder has been committed while the Defendant was under the influence of mental or emotional disturbance. The Defendant was an accomplice in a murder committed by another person and his participation was relatively minor. The Defendant was, the victim was a participant of the Defendant's conduct and consented to the act, a Defendant acted under duress. The capacity for the Defendant to appreciate his criminality of his conduct, conform his conduct to the requirements was substantially impaired. The Defendant was provoked by the victim who committed the murder, the age or mentality of the Defendant at the time of the crime, the Defendant was below 18. The Defendant had a mental retardation at the time of the crime. Those are many of the statutory mitigating factors which are reasons you could assign to give the life without parole sentence. You consider a person growing up, how they came along and the quality of life, that kind of thing. Now, understanding that, that is in the sentencing phase. Can you consider, meaningful consider testimony and evidence regarding mitigating factors, listen to my instructions on the law and make a fair and impartial judgment in this case?
JUROR: Yes, sir.
THE COURT: Now, let me go back to the plea Mr. Jones entered. Because of the not guilty by reason of insanity creates different verdicts, it is not just guilty, not guilty. It adds another layer of the aspect of the verdict form. So the case gets presented by the State, this is in the guilt or innocence phase, phase one. The verdict form handed to the jury for them to consider at that time is going to read, do you find, has the State proved its case beyond a reasonable doubt on the offense of murder. Is your verdict, the verdict has to be unanimous, beyond a reasonable doubt, presumption of innocence. There are the four potential verdicts. Guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty. Four different verdicts. Can you give meaningful consideration and my instruction of the law of what those mean to each of those verdicts, give consideration to each and every one of those verdicts?
JUROR: Yes, sir.
THE COURT: And that would be depending on the facts and circumstances and whatever instructions you get to hear from me on the law. All right, now, as I told you before, guilt or innocence. If we stop at the guilt or innocence and he is not guilty on either of those two forms the case stops there. If he is guilty but mentally ill or guilty we go into the sentencing side of the trial. If that stage is reached do you have any personal, moral, ethical, any type of beliefs whatsoever which would prohibit you or cause you concern that you could not consider reaching the death penalty, invoking that as the punishment.
JUROR: No, like I said, I am not totally against it or for it.
THE COURT: You understand when you get to the sentencing phase, the death penalty is not automatic?
JUROR: Right.
THE COURT: And the death penalty, penalty verdict, each Juror has got to sign the verdict form. Do you understand that?
JUROR: Yes, sir.
THE COURT: Do you have any beliefs, moral, personal, whatever type of beliefs that would prevent you from finding a verdict of, I am sorry, not a verdict, imposing a sentence of life without the possibility of parole and that would mean life without parole, the sentence is imposed, he stays there for the rest of his life. That is what it means. Do you have any reason that you could not sign, impose that sentence.
JUROR: No, sir.
THE COURT: Like I say, in this type of case the jury does the sentencing, they make that choice. Can you consider the instructions that the Court gives, the facts that you believe have been proven, whatever beliefs you have, personal or otherwise and impose that verdict?
JUROR: Yes, sir.
THE COURT: Now, another thing, I didn't ask this and I should have asked it earlier, didn't have it written down. But a murder case, five accusations, testimony is going to be graphic, perhaps unpleasant. I haven't seen, seen some of it, not all of it, the case hasn't been tried. Not exactly sure what all will be there. Knowing there is going to be death involved and perhaps seeing the victims bodies and whatnot. Subject matter such as that, which will be described as unpleasant, is a subject matter of that type going to create an issue for you and where you can't function and appropriately evaluate the evidence. Is it going, oh, are we going to start talking about that and I just can't deal with it, it is just too gross or too unpleasant. Are you going to be able to consider that type of graphic evidence in a case like this.
JUROR: Yes, sir.
THE COURT: Are you going to be able to follow my instructions and consistently keep your mind open all the way throughout the trial?
JUROR: Yes, sir.
THE COURT: You don't get to discuss the verdicts until the very end. That is an aspect that a lot of people don't know. You sit here and listen and take notes, I am not going to give you instructions until the end, you don't get to talk about it as it goes. The next to last thing may flip the whole thing upside down and make it go the other way. So you don't make up your mind ahead of time. That is one of the instructions that I give over and over and over. Have you made up your mind in this case already?
JUROR: No, sir. Like I said, the mitigating matters at the end.
THE COURT: I think I have done all of mine. Mr. Young, your turn.
THE COURT: He gets to ask you some questions and then the other lawyer gets to ask you questions. Let me tell you this. They may have an issue with the way they ask a question. One of them may say, Judge, I am trying to ask this question or that question. The lawyers argue in legal terms I am trained to understand. Sometimes when they get arguing about that it gets confusing. I excuse all the jurors thus far while I am discussing legal issues with the lawyers I am going to put you in the hall and let me sort it out because it is just easier to do it that way. You answer his questions the best you can.
EXAMINATION BY MR. YOUNG By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Whitten.
JUROR: Hey, how are you doing.
BOYD YOUNG: I am doing well. Thank you for being here with us on this process. I appreciate it. Right there at the end the Judge was talking to you about sort of the graphic nature of the testimony and the pictures and pictures of dead children and I know that you have a five-year-old daughter. And I know that the Judge asked you if you would consider--
RICK HUBBARD: Your Honor, I have got to step in right now regarding about this.
THE COURT: I know what you mean, we did that with the other Juror and he asked the proper question, not the improper question.
RICK HUBBARD: My understanding was--
THE COURT: Step out, this is one of those issues. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We dealt with this on the gentleman yesterday, didn't we?
RICK HUBBARD: Yes, sir. And you cannot ask a Juror, you cannot say you have got a child, you can't do that. And we dealt with that yesterday. That is in the question. You have got a daughter, whatever, five years old, ten years old.
THE COURT: Finish your question, Mr. Young. You said you have a five-year-old daughter.
BOYD YOUNG: You told the Judge that you would consider that graphic testimony, understand you have a daughter, does it make you pushy all the way to not being able to consider a verdict other than guilty of death.
RICK HUBBARD: Absolutely object to that, absolutely object to that. That is improper, there is not a case anywhere that will say that is proper. That is absolutely forbidden.
BOYD YOUNG: There is not a case anywhere that says it is forbidden. And maybe the Court can clear it up. And I am happy for the Court to put it up. He said he would consider it and that is fine and he is going to consider everything. I just want to make sure that my understanding is correct and I have to ask him in order for my understanding to be correct is that when you consider, he understands that it is not going to push him all the way to a verdict. And he can consider it and still be fair and impartial.
THE COURT: He has no facts whatsoever. The only fact you give him is you have a daughter or a child, I don't know which it was.
BOYD YOUNG: Judge, I don't know. I have children about the same age. This case is hard for me and if he is like everybody else he is going to say, and he may say I can still be fair and impartial, it is going to be graphic, it is going to be unpleasant, I can still be fair and impartial. If he says that that is fine, that is my question. Can you consider it. He said, yes. Can you consider it and still be fair and impartial, that is my question.
RICK HUBBARD: There does not need to be any reference to his children, that is improper. Judge, he is bringing in his own personal experiences into this courtroom. Every Juror that has children is going to be bringing their personal experiences in. And when you are asking them, can you be fair and impartial in a case involving children and they say yes. That is asked and answered.
BOYD YOUNG: I just want to ask him if he can consider it and still be fair and impartial.
THE COURT: Here is the question that I think you will like. You have a child, this question, this case involves children. Can you still be fair and impartial.
RICK HUBBARD: That is what I am objecting to. I don't think you can even say you have a child. It is out there, he already knows that. He doesn't need to be reminded he has a child and that is objectionable.
THE COURT: He does know he has a child, you know he has got a child.
BOYD YOUNG: He said he can consider it. I am asking him if he can consider it and still be fair and impartial.
RICK HUBBARD: Judge, it is asked and answered. He knows he has a child, he said he could be fair and impartial. He hasn't heard one iota of evidence. I can be fair, he has a child. If there is any child in his head right now, it is not images of these children here, it is images of his child. But he can be fair.
THE COURT: I sustain the objection. Let's move on. Bring him back in.
BOYD YOUNG: Your Honor,--
THE COURT: Hang on.
BOYD YOUNG: Please note my objection. I know that he said he would consider it. I just want to know if he can still be fair and impartial after considering it.
THE COURT: All right. How about this. Why don't you come in at the end, any reason whatsoever you can't be fair and impartial. I will ask that.
BOYD YOUNG: I understand.
THE COURT: Bring him in.
(Whereupon, the Juror came into the courtroom.)
THE COURT: Mr. Young, continue on.
By Mr. Young:
BOYD YOUNG: Mr. Whitten, the Judge talked to you a little bit about Mr. Jones has plead not guilty by reason of insanity. You understood that?
JUROR: Yes, sir.
BOYD YOUNG: And the Judge, not guilty by reason of insanity would mean that somebody says, based on a mental disease or defect that the individual was unable to appreciate the legal or moral wrongness of their actions. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Some people think that is just sort of just an excuse and that this is not a verdict that they can really consider. You are shaking your head, you are like no?
JUROR: Yes, sir.
BOYD YOUNG: For you, you understand that and legally that is an appropriate verdict in an appropriate case?
JUROR: Yes, sir.
BOYD YOUNG: Okay. And that is something that you could give meaningful consideration?
JUROR: Yes, sir.
BOYD YOUNG: Now, if somebody who had plead not guilty by reason of insanity and is found guilty or guilty but mentally ill, that means they are guilty of murder. Okay. And you understood the Judge's definition of that, the intentional killing of another with malice aforethought?
JUROR: Yes, sir.
BOYD YOUNG: And that means no excuse or justification, like the Court said, it is not self-defense, it is not an accident. The person knew the difference between right and wrong, chose to kill an innocent person. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And I want to talk to you a little bit about your feelings about the death penalty, and it is the only appropriate punishment for that guilty murder. How do you feel about it?
JUROR: I don't believe it is the only appropriate punishment. Like I said, I have to hear both sides, aggravating factors as well as mitigating factors to determine my decision.
BOYD YOUNG: So we are moving forward with the trial, we had the trial about guilty, not guilty, that has been decided. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And remember the second part of the trial where the jurors are able to determine the punishment, right. And you said, based on murder, you are open one way or the other, right.
JUROR: Yes, sir.
BOYD YOUNG: Now, in that case, there are a category of cases where we are talking about the death of children. You understand that?
JUROR: Yes, sir.
BOYD YOUNG: As an aggravating circumstance. Does that factor cause you think that death is the only appropriate punishment?
JUROR: Not only appropriate.
BOYD YOUNG: Can you tell why not?
RICK HUBBARD: Your Honor, I--
THE COURT: That's not fair. That is what we don't need to get into. He answered your question. Sustained on that. Ask your next question.
BOYD YOUNG: And I understand you are talking about mitigating factors and the Judge has been over some of those mitigating factors for you, right?
JUROR: Yes, sir.
BOYD YOUNG: Can you just tell, just based on who you are, what do you think is important to you in deciding between life or death.
RICK HUBBARD: Your Honor, again, I object. What do you think without any facts.
THE COURT: Yes. In his defense you didn't give any facts to violate Stanko.
RICK HUBBARD: Your Honor, it is not a fair question to somebody when they don't know any facts, any legal principles.
THE COURT: I think he has asked and answered the question saying he wanted to consider all the facts, aggravating and or mitigating. Rephrase your question, Mr. Young, the way it was asked, I will sustain it but rephrase your question.
BOYD YOUNG: Yes, sir.
BOYD YOUNG: If you were the Governor of South Carolina and you got to decide we are going to have the death penalty or not have the death penalty. What would you say?
JUROR: I would say leave the death penalty as an option.
BOYD YOUNG: And why?
JUROR: I just believe that if someone is inherently bad and there is no turning them around I don't see the point in keeping them locked up for their life and remain who they are.
BOYD YOUNG: Okay. And I don't want to put words in your mouth and this is your opportunity to tell me if I am, but you are saying that somebody who says, sort of death penalty is necessary for the worst of the worst?
JUROR: Yes sir, in a sense that is what I am saying.
BOYD YOUNG: Okay. The phrase sort of, we hear this phrase a lot, an eye for an eye. It sounds like that is not a view you would succumb to, is that right?
JUROR: I believe the punishment should fit the crime. I wouldn't say I am totally against an eye for an eye.
BOYD YOUNG: Would you say you are against the life for a life?
JUROR: No sir, not completely.
BOYD YOUNG: So I am just trying to figure out where you are on this not completely and I am just trying to get you to talk to me about your views.
RICK HUBBARD: Your Honor,--
THE COURT: I understand your objection. He hasn't asked a question, he is just saying I am trying to understand.
RICK HUBBARD: Well, I think it has been asked and answered. He has explained several times already.
THE COURT: I agree. Rephrase your question, Mr. Young.
BOYD YOUNG: This guy who is going to continue to act badly that we have talked about, I believe that you talked to me about, that the death penalty might be an appropriate punishment for that kind of person. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Is there anything that you think that you could learn about that type of person that would make you think, well, you know what, maybe the life penalty is the appropriate punishment?
RICK HUBBARD: Objection.
THE COURT: That is a fair question, that is a fair question.
RICK HUBBARD: Hypothetical, Judge, which is objectionable, hypothetical.
THE COURT: I think it is following with the way he answered it.
RICK HUBBARD: Which is what I objected to.
THE COURT: No, what he did answer. Overruled.
BOYD YOUNG: Thank you.
JUROR: Could you ask that again.
BOYD YOUNG: Sure. That person, that evil person, is there anything about that person that you think you could learn that would make you lean away from the death penalty, that maybe life is appropriate for that person?
JUROR: Yes sir, I think that is a possibility.
BOYD YOUNG: And can you tell me what some of things might be for you.
RICK HUBBARD: Your Honor,--
THE COURT: That is fair, that is fair, that is good.
JUROR: Just character traits really to determine whether or not what evil person said they--
BOYD YOUNG: -- I think I understand where you are on that. Do you start at sort of leaning towards life or death or are you in the middle, I am open to both?
JUROR: I would have to start in the middle because every situation would be different.
BOYD YOUNG: Could life in prison without the possibility of parole be substantial enough penalty for you for somebody who has been convicted of murder?
JUROR: Yes, sir.
BOYD YOUNG: Do you think that that is a serious punishment?
JUROR: I do.
BOYD YOUNG: I am going to talk to you, my understanding is that you may know Madison Lundy who works at the Solicitor's office, is that right or am I wrong about that?
JUROR: I have heard that name with my friends.
BOYD YOUNG: Okay. I am wrong about that. I want to talk to you a little about sort of how this decision is ultimately made by jurors and the Judge has explained some of it. We have aggravating factors which the Judge has told you about and they have to be proven beyond a reasonable doubt to the satisfaction of all twelve jurors. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: It is sort of like the first decision about guilty, not guilty, not guilty by reason of insanity. It has to be unanimous. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Mitigating factors are different. As the Judge told you, he told you some statutory ones and there is non-statutory mitigation. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And that stuff doesn't have the burden of proof, okay. Each Juror gets to decide that for himself. Are you with me on that. Does that make sense to you?
JUROR: It does.
BOYD YOUNG: When deciding whether or not somebody lives or dies and sort we allow jurors to say, to me this is mitigation?
JUROR: Yes, sir.
BOYD YOUNG: And that Juror is allowed to find any mitigation they want and give it the weight of life if they choose to. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And Juror number one can say, I saw him have the relationship with his family and I think that is mitigating and I want to give life and that is fine. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And Juror number two may say, I didn't see that but I thought he had a tough childhood and I think that is mitigating and I will be the way of life and that is fine too. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And even if jurors say, well, I don't see any mitigation, for no reason at all I just feel like life is the appropriate punishment for me and that is fine too. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: You understand why the law is that way?
JUROR: I do.
BOYD YOUNG: Does that makes sense to you?
JUROR: It does.
BOYD YOUNG: Is that the way you think it should work?
JUROR: Yes, sir.
BOYD YOUNG: At the end of the day the ultimate decision about whether or not another person lives or dies is what is called an individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: That is what the Supreme Court calls it, an individual moral judgment. And we all meet moral judgments every day, right?
JUROR: Yes, sir.
BOYD YOUNG: The best way it was described to me was for choosing your faith, whatever faith is right for you you have made your personal moral judgments about that?
JUROR: Yes, sir.
BOYD YOUNG: And you expect other people to respect your choices?
JUROR: Respect choices and I understand they have different--
BOYD YOUNG: That is right where I am going and somebody else could have a different individual moral judgment than you, right, a different faith than you, right?
JUROR: Yes, sir.
BOYD YOUNG: And you respect their right to have their own individual moral judgments?
JUROR: Yes, sir.
BOYD YOUNG: If you saw somebody trying to say your judgment is wrong, your opinion is wrong, your opinion is stupid, trying to get bullied out of changing what was they have arrived at is their individual moral judgment. Would you stop?
JUROR: I would stop the bullying, yes sir.
BOYD YOUNG: You would say that is their opinion and they are entitled to it?
JUROR: Right.
BOYD YOUNG: And you would respect the right of another Juror to say, I don't have to explain to you why my vote is the way it is, it is just my individual moral judgment and that is what I want to do?
JUROR: Yes, sir.
BOYD YOUNG: And you would respect their right to do that?
JUROR: Yes, sir.
BOYD YOUNG: And expect them to respect your right?
JUROR: Correct.
BOYD YOUNG: When we are talking about making individual moral judgments, at the end of the day it is okay to agree to disagree. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And in an agreement to disagree is not a failure of the jury. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Thank you, Mr. Whitten.
EXAMINATION BY MR. HUBBARD By Mr. Hubbard:
RICK HUBBARD: How are you doing today?
JUROR: I am alright, thank you.
RICK HUBBARD: You had a long day yesterday?
JUROR: I did, yes sir.
RICK HUBBARD: Welcome to court, we always mean well but you see sometimes we have disagreements?
JUROR: I understand.
RICK HUBBARD: That is why we have someone with the black robe here to hold us apart.
JUROR: Yes, sir.
RICK HUBBARD: Appreciate you being here.
JUROR: Yes, sir.
RICK HUBBARD: Now, I understand from you, when it comes to that first phase, deciding whether somebody is guilty or not guilty you want to hear all of the evidence?
JUROR: That's correct.
RICK HUBBARD: And you will consider every available verdict?
JUROR: Yes, sir.
RICK HUBBARD: Consider the facts?
JUROR: Yes, sir.
RICK HUBBARD: You understand when you get to that second phase, you only get there if somebody is convicted of murder?
JUROR: Right.
RICK HUBBARD: And then I think I understood you to answering both the Judge and the Defense lawyer you would consider all evidence in mitigation?
JUROR: Yes, sir.
RICK HUBBARD: And all evidence in aggravation before you issued a sentence?
JUROR: Right.
RICK HUBBARD: Now, and you would want to do that, would you not?
JUROR: Yes, sir.
RICK HUBBARD: Now, let me ask you this and the Judge eluded to it but I want to get a little bit more specific. Now, with mitigating and aggravating, you know there is, even if you find both you know there is no automatic sentence?
JUROR: Correct.
RICK HUBBARD: So if you find an aggravator you don't have to sentence somebody to death. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: If you find mitigation you don't have to sentence them to life?
JUROR: Yes, sir.
RICK HUBBARD: You are in charge. You understand that?
JUROR: Yes, sir.
RICK HUBBARD: And but there is something that the Judge eluded to that to put someone to death after they have been convicted and you move into that second phase you have to, before you can do that there has to be aggravating evidence?
JUROR: Right.
RICK HUBBARD: All the jurors have to see that?
JUROR: Yes, sir.
RICK HUBBARD: And then they have to decide death is appropriate. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: But what is unique is every single Juror, before they do that, has to sign their name. Now, this may sound silly, but a lot of people will tell you all day long about what they think. But when you ask them to put their name down on a piece of paper and they say, you know, I can't do that. If you got to that second phase and you find aggravating circumstances with your colleagues, your fellow jurors, that death is appropriate could you sign your name to that piece of paper?
JUROR: Yes, sir.
RICK HUBBARD: But no matter what you would want to hear all the facts, both good and bad?
JUROR: Correct.
RICK HUBBARD: I think that is all we can ask you and I appreciate it.
JUROR: Yes, sir.
THE COURT: Anything else, Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: One final question. Is there anything about this case, Mr. Whitten, these allegations that would cause you not to be fair and impartial?
JUROR: No, sir.
BOYD YOUNG: Thank you.
THE COURT: Step out in the hall and we will have you back in in a minute. I have to talk to the lawyers and have you right back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: Judge, I think based on the totality, his responses, he is qualified. We do object not being able to, the way I had to ask the fair and impartial question about a child involved in the case and I think Your Honor had noted my objection.
THE COURT: I did and your objection is noted for the record. Other than not being allowed the question do you think he is qualified?
BOYD YOUNG: Yes, sir.
THE COURT: Solicitor?
RICK HUBBARD: He is qualified, Your Honor.
THE COURT: Bring him back in, I find him qualified.
(Whereupon, the Juror entered the courtroom.)
BOYD YOUNG: Your Honor, did you ask him about his availability.
THE COURT: I did ask you about your availability, you don't have a vacation or anything, do you?
JUROR: No, sir.
THE COURT: Okay, you are good. I think I did ask you that, I wanted to make certain. We found you qualified as a Juror. What that means, you are on the list of qualified jurors. Remember, we had about 167 people, we will have to do this process with them, you are on the front end. I want you to check back with the website, on the back of your card. And it will have instructions for the qualified jurors. I need you to come back in some time, check that website each night after 6:00 and see what it says and follow those instructions. Until you get back, come back in the courtroom there will be daily news reports, minimize watching them. Don't see them and watch, don't do any research, don't let anybody talk to you about the case. Blame it on me, Judge Griffith says I am not to do that. You are under oath to do that. When you come back to the Court House I will say, Mr. Whitten, have you seen anything, I will ask you. So you are on your oath not to discuss the case, not let anybody contact you. What you need to decide the case is here in the courtroom. So see you soon, check the website and I remind you you are under oath. Okay.
JUROR: Okay.
THE COURT: See you soon. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a short break.
BOYD YOUNG: Can we put one thing on the record.
THE COURT: Yes.
BOYD YOUNG: Your Honor, I would like to object to the Solicitor's continued speaking objections in violation of criminal rule 18. And when Your Honor makes a ruling, when an objection is made it needs to state objection, grounds. If Your Honor needs to hear more I believe the Court can ask for it but these continuing speaking objections and continuing talking over people and continuing telling people it is improper is itself improper and we would object to it. And we object to it outside the presence of the jury.
THE COURT: All right. I have told the Solicitor this morning and he has been, yesterday was more my fault because I didn't remind him. But, objection, I have got an issue, the Juror will go out.
RICK HUBBARD: And, Your Honor, I would say this too. I am trying to contain myself. I am in a position now that I look like the bad guy, every time I stand up to defend what I think we have already agreed upon only to find the questions being asked again. And I am pulling my hair out here.
THE COURT: I will congratulate both sides, he stepped out of the courtroom one time. So good for us. Be back in about ten minutes.
(Whereupon, a short break was taken.)
THE COURT: All right, the next one. Sarah Fucci, number 150.
SARAH FUCCI, being first duly sworn, testified as follows:
COURT CLERK: Have a seat and state your name and spell your last name.
JUROR: Sarah Fucci, F-U-C-C-I. EXAMINATION BY THE COURT
By The Court:
THE COURT: Ms. Fucci, good afternoon. My name is Eugene Griffith and I introduced myself over in the other Court House Monday. And I am certain, you are the first lady potential Juror.
JUROR: Yes.
THE COURT: I don't know if that was a good group you got put in or just--
JUROR: They were a good group of fellows.
THE COURT: Sorry for the delay. It is moving a little more efficiently now but we had to get organized and what not and what have you. I gave you an oath or the Clerk did when we were over there that said, don't talk about the case, don't let anybody discuss the case with you. Has anyone tried to talk to you about the case?
JUROR: No. Over there we talked about what happened on Monday.
THE COURT: The qualification process?
JUROR: Yes.
THE COURT: But y'all didn't discuss the facts about the case?
JUROR: No.
THE COURT: Have you seen or heard any media reports, any newspaper articles?
JUROR: I had before we showed up in court on Monday.
THE COURT: And are those recent ones or ones several months ago?
JUROR: I saw them in February.
THE COURT: Okay. And what kind of, in general what were they?
JUROR: It told of a, in the state paper, "secret meetings here in Lexington." I guess interviews for witnesses. His father was being interviewed at the time, a reporter came in. It gave more information than I had known previously through just when it happened years ago.
THE COURT: There is some aspects of the case that I had to hear and make preliminary decisions on before they could be used at trial. That is one of those hearings, it really wasn't secret. It doesn't matter.
JUROR: That is what it was referred to.
THE COURT: We are here now and the process we are going through is to try to find a fair, impanel fair and impartial jurors. You have been drawn as a potential Juror so we have got to ask you some questions today and you are under oath. And I will tell you, what I need is truthful answers and candid answers, there are no right or wrong answers. The first question, based upon the newspaper article and knowing we had a secret hearing, would that impact your decision?
JUROR: Well, that in itself, no sir.
THE COURT: Okay. Now, this trial will last several weeks. The jury selection process may last into next week. Do you have any personal plans over the next few weeks that if you were selected as a Juror that would impact?
JUROR: Well, next month.
THE COURT: What have you got?
JUROR: Vacationing in Ohio with my sister and her grandchildren.
THE COURT: I am being told being a grandparent is great?
JUROR: It is awesome.
THE COURT: When are those plans, how far?
JUROR: Memorial Day Weekend before until the weekend after.
THE COURT: So late May?
JUROR: Yes, sir.
THE COURT: If you were selected as a Juror that would impact that trip?
JUROR: Yes, sir. I seem to have determined over the weekend that I could not do this unbiasedly.
THE COURT: Okay. That is why I have got you here. Why do you think, you formed an opinion that you think it would be difficult.
JUROR: A friend of mine in 2013 came up missing and they found her body in October. And they guy that did it, I don't even know if he has gone to trial yet.
THE COURT: Can y'all hear that? A In 2013 a friend of mine came up missing in Greenville, Misty Johnson. And the following month they found her body. I think I could not do this and not be unbiased.
THE COURT: That is a personal event in your life that would impact your decision making?
JUROR: Yes sir, it would.
THE COURT: And if it does it does. And that is the candor I am talking about. I don't want you to say, oh no, I can put it aside when you have doubts when you may could or couldn't?
JUROR: Yes.
THE COURT: That is what I need to hear. Any objection, she has got vacation plans and a potential problem with an event. Any objection to me excusing her right now?
RICK HUBBARD: None, Your Honor.
THE COURT: Mr. young, are you good with that?
BOYD YOUNG: Yes, sir.
THE COURT: Ms. Fucci, you are free to go and thank you for coming. Thank you so much for your patience.
JUROR: Thank you, sir. (Whereupon, Juror 339, James Prescott entered the courtroom.)
James Prescott, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your last name.
JUROR: James Prescott, P-R-E-S-C-O-T-T.
DIRECT EXAMINATION
By The Court:
THE COURT: Good afternoon, Mr. Prescott.
JUROR: Good afternoon.
THE COURT: My name is Eugene Griffith. You are under oath, I am going to ask you some questions. Speak into the microphone. I am going to ask you some questions, explain some things to you about the criminal procedures and things that you may not be aware of and then the lawyers get an opportunity to follow up on my questions. Initial part of the conversation is me and you but she is taking it down and everybody gets to listen to your responses. Now, you took an oath Monday right before we left and I ask y'all to promise not to do any kind of independent research, talk about the case, don't let anybody talk to you about the case.
JUROR: Right.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: No.
THE COURT: Have you talked to anyone about the case?
JUROR: No.
THE COURT: Have you done any independent research?
JUROR: No but let me go back to the other question. I had to call my boss and he lives in Kentucky. I had to let him know I didn't know how long this would take. And I said it is a murder trial and that is all I said. I didn't say names or anything. But I had to let him know the circumstances which I would be out of work longer than expected. I thought I was going to be in and out Monday. I had no idea what this was about until Monday.
THE COURT: Fair enough. Have you seen or heard any media reports?
JUROR: No.
THE COURT: Anything in the paper, news accounts?
JUROR: No, I don't read that stuff.
THE COURT: Now, talking about work. This case will take a while to get a jury together. Once we have got you here today to see if you are going to be a qualified Juror or not and if you meet certain parameters you would be a qualified Juror and then you could be picked, that doesn't mean you will be picked but could be picked. Once we go through that, we have got a number of people because you are on the first panel, it may be the middle of next week before I get through all the panels. Not only that and the trial will start after we go through all the panels. The trial may last a couple of weeks or better. So the month of May is probably occupied if the trial goes all the way through. Do you have any personal plans, vacation, surgery, personal obligations you need to attend to if you are so seated. Understand, this is an inconvenience and you probably wouldn't volunteer. I understand that. Anything on your personal schedule that would prevent you from serving?
JUROR: I have got a birthday in days.
THE COURT: I see how old you are.
JUROR: The same age as you.
THE COURT: That's right. Okay.
JUROR: No, I have nothing.
THE COURT: That means you are a little bit older than me, mine is in December.
JUROR: Okay.
THE COURT: I remind you you are under oath. The answers to the questions, some of them will be opinion questions. And you are entitled to your opinion so there is not a right or a wrong answer. I just want candid truthful answers. That is what the lawyers want. They are getting to know you. That is why I sent that questionnaire out, what is going on, who are you, where do you work. That kind of thing. You have answered all of those questions truthfully?
JUROR: As far as I know.
THE COURT: Now, are you or a member of your immediate family a member of any organization which advocates rights of victims, such as MADD Mothers, Students Against Drunk Driving, Citizens Against Violent Crimes, Bikers Child Abuse, any advocacy group for victims. Are you a member of any of that?
JUROR: No but can I speak freely. I need to amend my questionnaire. And I didn't realize it until this past weekend when I was turkey hunting. One of the guys that I turkey hunt with, he is an officer of the law, he works for Cayce Police Department and I think I put on there, the best that I can remember, I put on there that I don't know anybody in law enforcement.
THE COURT: He is a hunting buddy?
JUROR: A hunting buddy. But it kind of slipped my mind that, until I saw him this weekend, crap, I don't think I put that on there.
THE COURT: So you have got a close friend who is a member of the Cayce Police Department?
JUROR: Yes.
THE COURT: Fair enough. Would that effect your judgment in the case?
JUROR: No.
THE COURT: Can you listen to the facts and circumstances presented?
JUROR: Yes.
THE COURT: And obviously you have not talked to anybody about the case would include him?
JUROR: Correct. Well, he knew I had jury duty and I am sure he probably knew this trial was coming up but he never mentioned, hey, I know what trial you are going for.
THE COURT: Not many people knew that was coming except the people who got the summons and folks in this room. We scheduled it a while back but it is just how it worked out. This happens to be the week we started.
JUROR: Okay.
THE COURT: Now, you have examined the witness list, list of potential jurors, a long list?
JUROR: It was.
THE COURT: The parties are required to give all potential jurors a list of potential witnesses regardless of whether they will be called or not. It is very likely that all of these won't be called but out of an abundance of caution they got to list them all to alert you when I say, is this your first trial?
JUROR: Yes.
THE COURT: Do you know anybody on the witness list?
JUROR: I did not recognize one name.
THE COURT: You are not connected by blood, marriage, close personal friends to any of those potential witnesses?
JUROR: No.
THE COURT: That is why it is there so you can review and determine that because it would be awkward if during the trial a witness gets called up and it is your brother-n-law.
JUROR: Right.
THE COURT: That would create a huge problem for you and for us so that is why we ask. So not connected to anybody?
JUROR: As best as I could see.
THE COURT: No social, personal, business relationship.
JUROR: I didn't even recognize one name on there, not even just hearing about somebody, I don't even recognize anything like that.
THE COURT: Now, I am going to kind of give you a broad brush, this isn't detailed explanation of the law but a little bit of criminal procedure, a little bit about some of the elements of certain defenses and then ask you, can you follow the process and if you can, because my job as the Judge is preside over the trial, that includes ruling on preliminary issues, trying to impanel a fair and impartial jury, ruling on evidence in the trial, instructing the jury at the very end because right now I am a little bit like you, I am in the dark as to what exactly witnesses the parties will call. I have got an idea, I know some of the witnesses, I have heard some preliminary matters that I had to rule on to decide whether they come forward or not. I have got an idea of what is going to be presented but until I hear, I haven't heard it either so I am in the dark like you. You have heard nothing other than a little bit of the, you heard about the case maybe?
JUROR: Whenever you ask the other day in the other Court House, if we heard any publicity. My hearing about it went back to when it happened and it was National news. I have not even heard, I don't watch a whole lot of local news but I haven't heard anything recently about the case.
THE COURT: You haven't made up your mind about the case?
JUROR: No, I am going way back to whenever I heard it on National news.
THE COURT: Late summer or early Fall, almost five years ago?
JUROR: Almost five years ago.
THE COURT: Now, here is the big broad picture, give you some definitions and procedures and laws. And I understand a lot of testimony and evidence will come in later and that kind of fills and the law applies to it, maybe, maybe not, depending on how the facts come in.
JUROR: Okay.
THE COURT: My instructions will be the law in the trial. I don't have a blanket instruction, Mr. Prescott and ladies and gentlemen of the jury, the law of South Carolina is thus, thus and thus. I have got to wait and hear the testimony and kind of tailor, make my instructions based upon what is shown in court. I have got to tailor it specific for each case.
JUROR: Right.
THE COURT: That is part of what I do, explain the law and instruct the law. And the law is the law of South Carolina, what I am tasked with instructing y'all, I can't give, can't give the wrong law, incorrect, I have got to do it like it is handed down, the books from the General Assembly. And likewise, part of your oath will be accepting the law as instructed, even if you disagree with it. Okay.
JUROR: Okay.
THE COURT: Are you going to be able to do that?
JUROR: Yes, sir.
THE COURT: Okay. Now, in this case, we are talking about this case, Mr. Jones has been accused and indicted for five counts of murder and the law in our State presumed him to be innocent until he is proven guilty beyond a reasonable doubt. So as he sits right there he is presumed innocent. The State hasn't proved anything, they have made allegations towards him with those indictments. And that is telling him, here is what you need to be prepared to defend yourself against when you come into court. That is what he knows. Aside from that he is presumed innocent and the State, because they are making the accusation, they have got to present their case in an attempt to prove the elements of murder beyond a reasonable doubt and the jury considers that and makes a determination of whether they can prove each and every element beyond a reasonable doubt and a jury finds a unanimous verdict of guilt. Okay.
JUROR: Right.
THE COURT: Now, murder is defined as the killing of another with malice aforethought. Real simple and short. That is the definition. Most people don't know it is that short. But now the definition of malice is hatred, ill-will, depraved heart, hostility, intent on wrongdoing. That is malice. So a person killing another person with hatred. That is what murder is defined as. It is not an accident, it is not something along those lines. There is no excuse for it.
JUROR: Right.
THE COURT: There are some defenses and I will go over those in a little bit. There are some defenses to murder and those may be presented and we will talk about those. Murder, killing of another, malice aforethought. Mr. Jones is accused of that by the State. The State has got to prove that beyond a reasonable doubt. Now, I say he is presumed innocent. Okay.
JUROR: Okay.
THE COURT: Now, in certain cases, in most cases, this is a Capital case. In most cases the State brings a charge, makes an accusation of a crime. They prove it, a person is found guilty. The Judge determines the sentence and it may be a range, it may be a specific number of days or years or whatever. Judges impose sentence. In a Capital case it is a little bit different. Upon a finding of guilt then, there is two phases to a Capital case, guilt or innocence phase where it is guilty or not guilty. Phase two starts, things start over to determine punishment. The jury votes on the punishment. There are two choices, life without parole, death. The State has got to prove, in order to seek the death penalty, because conviction of murder, the State is not entitled to ask for the death penalty. But a conviction for murder and if the State can prove during the sentencing side an aggravating circumstance, an aggravating factor defined in these code books back here and there are several, killing a police officer, rape, murder follow-up, kidnapping of a murder, a child is the victim, multiple victims. Those are aggravating circumstances and the facts of the crime fit that and the State can prove one or more of those aggravating circumstances then they can ask for the death penalty. It is not automatic.
JUROR: Okay.
THE COURT: So phase one is guilt or innocence. Phase two, if you get there, because if it is not guilty the case is over, no phase two.
JUROR: Right.
THE COURT: But if it is guilty, go into phase two and that is when the State has got to prove the aggravating factors. So, do you understand it is a two-step process?
JUROR: I do.
THE COURT: Okay. And the State has got to prove all of its elements, murder and then aggravating factor beyond a reasonable doubt, the murder has got to be unanimous to murder.
JUROR: Okay.
THE COURT: Now, I am going to define a couple of things. In the guilt or innocence side, that first phase, a lot of evidence to be presented, instructions will be done after the result of the testimony and evidence is presented. But there is some potential defenses in there, in this case Mr. Jones has entered one of those. Potential defenses which can be shown and not all of them apply but depends on the facts of each case individually. So there are some available defenses for people accused. I am going to read those off to you and then come back and ask you another question. Potential defenses include accident, identification issue, suicide, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. And those are presented during the guilt or innocence side. Okay.
JUROR: Okay.
THE COURT: If the defense has proven or shown and the jury finds that then not guilty. Now, in this case Mr. Jones has entered a plea of not guilty by reason of insanity. I am not going to define insanity for you right now but because of that plea can present evidence in that regard. The jury will get to consider that. But I want to ask you this, normally the guilt or innocence is two verdicts, guilty, innocent. When someone enters a plea like this, there are potential verdicts. There is guilty, guilty but mentally ill, not guilty by reason of insanity and then not guilty at all. And I am very aware, you have not heard a single fact, not a single witness, not a shred of evidence has been presented to you. A lot of evidence will be presented to you if you are qualified as a Juror. I will instruct you on the law and the aspects of those potential verdicts. Do you have any reason right now why you couldn't find any one of those four verdicts, could you accept the law as I instruct you, consider the testimony and evidence which is presented to you, fairly evaluate it, meaningful consider all the evidence and apply the law as I instruct it and reach any one of those four. Can you do that?
JUROR: Yes.
THE COURT: Now, is there any one those particular verdicts that you couldn't find?
JUROR: No.
THE COURT: Okay. Now, also in the second phase, I discussed with you, the aggravating factor. I don't know if I mentioned mitigating factors. There are also mitigating factors. Mitigating factors are considered by the jury in the second phase. So if there is a not guilty in phase one the case is over. If there is a guilty in phase one we go to phase two, the sentencing side. Two potential verdicts. You understand, the death penalty is not automatic. Two potential verdicts for the jury to decide, life without parole sentence, death penalty. Those are the two potential sentences the jury can impose. We got past guilty, not guilty.
JUROR: Right. Only in phase two.
THE COURT: Only in phase two. Now, aggravating factors, I defined those a moment ago to you. The death of a police officer and such as that.
JUROR: Right.
THE COURT: Those are some aggravating factors and the State has got to prove one of those two you, not more than one but at least one beyond a reasonable doubt before y'all can consider whether to impose death or only impose life without parole. Now, mitigating factors are listed in the statute and there are some that aren't listed in the statute, jury's can consider those also. You may hear evidence of those. So evidence of mitigating factors, I am going to list out a few factors and ask if you can consider those. But mitigating factors would include that a Defendant has no significant prior criminal history, never been in trouble before. 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 and consented to the act. The Defendant was an accomplice and committed by another person but his participation was minor. The Defendant acted under duress and in the dominion of another person, capacity of the Defendant to appreciate criminality of the conduct or conform his conduct was substantially impaired, age or mentality of the Defendant at the time of the crime, the fact that the Defendant may have been provoked in committing the crime. The Defendant was below the age of 18. The Defendant had mental retardation at the time of the act. And then there is some other factors, say you had a rough life growing up. Those are factors jury's can consider, if the testimony supports it, in deciding to not give the death penalty but impose a life without parole sentence. Do you understand that?
JUROR: Yes.
THE COURT: Okay. Now, at the end of the case when we get through all of this I cam going to instruct you how to evaluate the testimony and so you are going to consider testimony, instructions from me, a wide array of this is testimony and people, I didn't realize that was an aggravating factor or mitigating factor. But for some folks just evidence of what happened. So until the evidence is presented I don't exactly know what my instructions will be but you have to follow instructions in defining testimony as evidence of aggravation, evidence of mitigation which are any reason or both, just for a life sentence. And life means die in jail, the balance of your life, no release. That is what it means.
JUROR: Right.
THE COURT: Evidence of defenses which I have gone over with you, evidence of affirmative offenses such as accident, guilty but mentally ill, insanity, that kind of thing. Now, you will hear all of that testimony. Will you be able to listen to all the testimony, consider all of the evidence, weigh it consistent with my instructions on the law in reaching your verdict. Can you do that?
JUROR: Yes.
THE COURT: Now, I handed out to you and for you to read over a sheet much like this, it has three types of jurors. And type one is a Juror who is, this includes, kind of combines things. So stage one is down, guilty if found. If it is not guilty we don't get this far. Guilt has been found that a murder has been committed, the State has proved beyond a reasonable doubt. We are into stage two, at the end, the State has proved beyond a reasonable doubt an aggravating factor. All right.
JUROR: Okay.
THE COURT: Once that is done and the jury starts considering punishment some people say, you know, the State has proved that, the death penalty is what I believe a person should always get, proven a murder as well as an aggravating factor. And so death penalty is always going to be imposed. Type two Juror is a little bit different. They say the State has proved the murder beyond a reasonable doubt and an aggravating factor, I have got some personal belief, moral belief I just cannot sign a verdict for a death penalty. I am going to impose life without parole because to me that is, keep them in jail the rest of their life. I am going to give that sentence no matter what. And then there is a type three. The State has proved guilt, proved an aggravating factor. This type of Juror wants to hear all the testimony, whether it be a defense, whether it be a mitigating factor, whether it be an aggravating factor, whether it be just personal belief. They want to hear everything. And then decide which sentence it is going to be, life sentence, life without parole or a death sentence. They don't stand in the courtroom, walking in and decide one way or the other. So kind of the question is, where do you find to classify yourself in one of those three types?
JUROR: Type three.
THE COURT: Type three. So you haven't made up your mind on what the punishment should be?
JUROR: No.
THE COURT: You understand and I have explained to you, the jury determines life without parole or the death penalty?
JUROR: I understand that now.
THE COURT: Did you understand before today?
JUROR: Before today, no. I didn't know the jury did the sentencing.
THE COURT: Twelve people make that decision and that is why it is important for these folks because they want a fair jury knowing that decision has been made by those jurors. And that is why it is important. It is kind of a, a Capital case, that is why it takes so long to go through picking of the jurors because we have got to sit down and ask, do you have an open mind, do you have a moral belief. These questions are asked for this reason. It makes it more clear, doesn't it?
JUROR: It does.
THE COURT: Okay. Now, do you have any religious, moral beliefs, personal beliefs which would prevent you from considering the death penalty?
JUROR: No.
THE COURT: Do you have any beliefs, personal, ethical, moral which would prevent you from imposing a life without parole sentence?
JUROR: No.
THE COURT: Do you understand, if the verdict is unanimous for the death penalty each of the jurors sign the verdict form, the punishment form actually?
JUROR: Right.
THE COURT: Do you understand that?
JUROR: Yes.
THE COURT: Did you know that?
JUROR: No.
THE COURT: But you understand now that I have explained to you two choices. It is not automatic one way or the other?
JUROR: Right.
THE COURT: And you have got an open mind right now?
JUROR: I do.
THE COURT: Okay.
BOYD YOUNG: We have one issue I would like to take up.
THE COURT: Okay. This is why it is taking long because legal issues that I have got to discuss with the lawyers and so I will put you out in the hall and we will have you back in. (Whereupon, the Juror was excused from the courtroom.)
BOYD YOUNG: Your Honor was talking about the first statutory mitigator which is no significant history of prior, no significant history of prior conviction involving the use of violence against another person. And Your Honor cut it off short just saying never been in trouble before. Mr. Jones has a criminal history, we are all aware of Mr. Jones' criminal history. I don't want the Juror to hold it against us when we have asked for this charge and he says, well, you know what, the Judge told me never been in trouble before. That might be a mitigator. But you understand my concern.
THE COURT: You want me to correct that with him or do you want me to not go from this point forward. Because I can fix it right here.
BOYD YOUNG: Well, I think we have to.
THE COURT: Okay. Once we do that are you ready?
BOYD YOUNG: Yes, sir.
THE COURT: Okay. Bring him out.
(Whereupon, the Juror entered the courtroom.)
THE COURT: All right. Mr. Prescott, I did misstate something and I will give you some of the mitigator factors. Some of them apply and some of them don't. I want to make certain you understand this. Like a person over 18, Mr. Jones is well over 18. So I wouldn't instruct on that one. You won't hear testimony he is under 18. But I misread, I kind of shortened it. A person has no criminal history, violence against another person is a mitigating factor. If someone has been convicted, I said never been in any trouble before. I didn't mean that they haven't gotten a speeding ticket. But if someone has never been, in the way the statute reads, no significant history, prior criminal conviction involving the use of violence against another person. That is actually what it says. Do you understand that. That is a mitigating factor.
JUROR: Okay.
THE COURT: Can you consider that, if it turns out to be the case.
JUROR: Yes.
THE COURT: Okay.
THE COURT: Sufficient, Mr. Young?
BOYD YOUNG: Yes, sir.
THE COURT: Mr. McGuire.
BILL MCGUIRE: Yes, sir.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Hey, how are you doing. My name is Bill, Bill McGuire, as the Judge said. Good afternoon, Mr. Prescott.
JUROR: Good afternoon.
BILL MCGUIRE: I just want to talk to you, like at your job in the break room or the water cooler and just to throw some things out to you and just get your views, your personal opinions about the death penalty. Okay. If we were at the water cooler and one of our coworkers came by and said, you know, Mr. Prescott, I think we should use the death penalty more often in South Carolina. What do you think. What would you say to that?
JUROR: I don't think the amount of times you use the death penalty should matter in any way. I mean, I think it would go back to the Judge was reading to me about mitigating factors and stuff like that to determine whether it was necessary or not.
BILL MCGUIRE: Sure. If you were Governor of South Carolina for a day and you could have a Bill on your desk and it would say, we have the death penalty or we can have a Bill that says we don't have the death penalty. What decision would you make, would we have the death penalty or not. If it was up to you and you could choose?
JUROR: I don't think I would go either way, one way or the other, I don't think I would go either.
BILL MCGUIRE: You wouldn't have a strong opinion about that?
JUROR: I wouldn't, no. I think there is a reason for both at times.
BILL MCGUIRE: When you say both, you mean both sentences?
JUROR: Yes. Both, you know, life without parole or death penalty. I think there is a case for either one at times but I would not go you know, exactly one way or the other, I wouldn't.
BILL MCGUIRE: And just so we are definitely on the same page, I want to start at the beginning. We are talking murder, as the Judge said, it is killing somebody deliberately and intentionally, malice aforethought, evil intent, hatred in your heart, not self-defense, not accident, not voluntary manslaughter like a spouse finding their spouse in bed with somebody and then they shoot both people. That would be voluntary, heat of passion. This is the intentional deliberate killing, innocent victim. Are you with me?
JUROR: Yes.
BILL MCGUIRE: And the Judge told you about some types of cases, I think he said police officer killing, rape, murder, kidnapping murder, that sort of thing. There are some categories of cases that have aggravators attached to them to make the murder worse, more aggravating. And the one I want to ask you about is the category of case involving multiple deaths of children. So we have this situation, a situation, intentional killing of innocent victim, children. Would the death penalty always be appropriate in that category of cases?
JUROR: I am not going to make a decision on that. I think you would have to hear all the facts and evidence and testimony, all of that. I mean, that is what a Juror does is weigh, right.
BILL MCGUIRE: Well, sort of. When you say facts and evidence, are you talking about the facts of the killing?
JUROR: Yes. I don't know any of the facts other than the gentleman was caught in Mississippi almost five years ago and there was some children that were killed and that was it. That was the last I heard about the case actually until Monday and then, you know, there was some chatter amongst the potential jurors about, you know, what the case was.
BILL MCGUIRE: And the Judge talked to you about some other factors, mitigating factors. Things like a person's background, character, sort of their life experience, sort of how they grew up. I mean, would those things be relevant in fixing punishment for somebody convicted of killing innocent multiple children?
JUROR: I guess it could. I mean, I guess it could. I would have to hear all of that and, you know, just make a decision after hearing all of that.
BILL MCGUIRE: Do you think putting somebody in prison, letting them live out their life in prison. Would that be a severe enough punishment for potentially killing innocent children?
JUROR: I guess punishment is a matter of opinion. Actually I think the life in prison is harsher than the death penalty, it can be.
BILL MCGUIRE: A lot of people that come to court say that, that is because you have to live every day of your life thinking about it, right?
JUROR: Right.
BILL MCGUIRE: And that could be hard?
JUROR: It could be.
BILL MCGUIRE: And some people think that the death penalty, it is almost like the easier way out because their suffering ends. Is that kind of what you are saying?
JUROR: Yes.
BILL MCGUIRE: Are, do you think the life penalty, never getting out of prison, dieing in prison, is that always harder than the death penalty in your opinion?
JUROR: I guess there is certain circumstances for everything. Not necessarily, it could be either way.
BILL MCGUIRE: I want to talk to you a little about, I am going back to the second phase, the potential second phase of the trial that the Judge was talking to you about. And it is very different from a typical trial. The Judge said, you know, the first part of a Capital case is just like any other trial, do they have the right guy, did he do it, is he guilty, that sort of thing. And all the questions in the first phase are questions of fact, right or wrong. Did the guy do it, did he not do it, that sort of thing. Do they have the evidence, do they not. Is that your understanding generally?
JUROR: Yes.
BILL MCGUIRE: Okay. And we think of jury's speaking with one voice and being unanimous and always agreeing on that type of case, the first phase, guilt or not guilty part of the trial?
JUROR: Right.
BILL MCGUIRE: Yes. And I am going to take you back to that second phase that the Judge talked to you about, the potential punishment phase. And that is where things don't have to be unanimous on certain issues. And what I mean by that, going back to mitigation, the facts of mitigation. Mitigation is just any reason to vote for something other than the death penalty which would obviously mean life, right?
JUROR: Uh-huh, (Indicate yes.).
BILL MCGUIRE: So it could be any reason. And the way that sort of will play out, as an example. Like Juror number one right here could say--
SUZANNE MAYES: Objection, Your Honor, form of the question.
THE COURT: Rephrase the question, he has asked something similar before.
BILL MCGUIRE: So what I want to do is just sort of give you an example and just ask you your thoughts about it. Okay?
JUROR: Okay.
BILL MCGUIRE: So Juror number one right here can say, you know, I heard that all the facts in the case and I think that I saw something redeeming, a spark of humanity based on a Defendant's relationship with his father. Okay. And another Juror, number two, said well, you know, I didn't necessarily see that but I saw something different. I saw that he endured some really tough circumstances of growing up so I want to vote for life on that reason. And another Juror, number three, could say the Judge told me I could vote for the life penalty for any reason, no reason, mercy alone and I can't really put it into words but I am voting for life. That is my view. So see how they can all be different?
JUROR: Yes.
BILL MCGUIRE: Do you see how they don't have to agree?
JUROR: I do.
BILL MCGUIRE: Because that is a little unique. That is contrary to what we normally think about jurors always agreeing on a fact or something but they don't have to agree. Is that something that you can respect?
JUROR: Yes.
BILL MCGUIRE: Does that sound fair?
JUROR: Yes, that sounds fair. But all the jurors have to be, it has to be unanimous one way or the other, right?
BILL MCGUIRE: Twelve people can vote for the death penalty and that is the only time the death penalty would ever be imposed, if all twelve agree. All twelve have the option of voting for the life penalty as well. But as you might imagine there can be disagreement in a matter so important as whether a human being is put to death, that you would have some disagreement. That would seem normal, right?
JUROR: Yes.
BILL MCGUIRE: And the way the law describes this, is that a person's position in a Capital case is called their individual moral judgment, you probably never heard that phrase before but you heard it today?
JUROR: Yes.
BILL MCGUIRE: And does that sound right, that it should be an individual person's moral judgment as to whether or not a fellow human being dies or not. That sounds right?
JUROR: Yes.
BILL MCGUIRE: Okay. And as you imagine, there might be some disagreement, right?
JUROR: Yes.
BILL MCGUIRE: And the way this works is, the Judge has already given an oath to all potential jurors, there will be another oath given to the jury when they are sworn. And once somebody reaches their individual moral judgment it is a violation of the juror's oath to just say, I want to change that and abandon that and just throw with the majority just for the sake of unanimity. Do you understand that?
JUROR: Yes.
BILL MCGUIRE: Okay. And it would be wrong for somebody to say, I am just going to join the greater number just to have a unanimous verdict.
JUROR: Yes.
BILL MCGUIRE: Okay. Ending the day in disagreement is not a failure. Does that sound fair to you?
JUROR: Yes.
BILL MCGUIRE: Okay. And you would respect everybody else's individual moral judgment?
JUROR: Yes.
BILL MCGUIRE: Even if different from you?
JUROR: Yes.
BILL MCGUIRE: And if you saw, the way the law works is and the Judge will tell you this, if it harms someone's conscious to change their position, to abandon their individual moral judgment that would be wrong. If you saw that happening in the jury room, that if discussions got beyond civil discourse and people were trying to get somebody to abandon their individual moral judgment to come over to the majority, could you stop that?
JUROR: Is that my duty to stop that?
BILL MCGUIRE: Actually it is, sort of the flip-side of that. The Juror, a Juror, when they reach their individual moral judgment, it is actually their obligation and duty to stay in that position and if they abandon that--
SUZANNE MAYES: Objection, Your Honor, at this point, again, to the form of the question.
THE COURT: Okay. I will let him try to rephrase it because, it is in response to an answer. And so, understand your objection and I am very aware of the question that he can ask.
BILL MCGUIRE: So you brought up the term duty, and it is actually, once an individual Juror reaches their own individual moral judgment, let's just say they say life penalty. That is where they are. It would harm their conscious to change that position, it would be a violation of their Juror oath, that you saw people to try to get them to do that with coercive techniques or something and ask you if you could step in and stop that. And you said, is that your duty. What you could do is--
SUZANNE MAYES: Objection, Your Honor, that is not the--
THE COURT: All right,--
BILL MCGUIRE: I will get to the question.
THE COURT: It is actually a legal instruction but ask him a question. Sustained as to the judicial instruction.
BILL MCGUIRE: So, I am sorry, that was a bad question, that was a little wordy on my part. Could you make sure the Juror oaths are followed, could you pass a note out to the Judge saying it is getting coercive in here, somebody is trying to get somebody, who has reached their individual moral judgment, and it would harm their conscious to change their position but they are trying to do it anyway. Could you write a note out to the Judge that things are getting beyond civil discourse and we need to get some dignity in the proceedings?
JUROR: If that is what I am suppose to do, yes, I could do that with no problem. I have never--
BILL MCGUIRE: You have never been in this situation before?
JUROR: I have never been called for jury duty.
BILL MCGUIRE: Right.
JUROR: Until this time.
BILL MCGUIRE: You know, me either.
JUROR: I will be 55 years old.
BILL MCGUIRE: Mr. Prescott, just give me one second.
JUROR: Okay. Mr. Prescott, if I just said, on a scale of one to ten, just based on everything you have been instructed on by the Judge about the death penalty for murder, ten being very much in favor for it or one, where do you fall out. Just tell me, kind of rate yourself.
SUZANNE MAYES: Objection, Your Honor, we are going beyond the scope now in his questions. We can approach if needed.
THE COURT: Y'all approach.
BILL MCGUIRE: I would like it on the record, Judge.
THE COURT: We will put it on the record if we need to. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Do you want to make a record of it?
BILL MCGUIRE: No, not right now. I will put that on the record later.
THE COURT: Okay. You will be protected on that question so make a record of it, we can make a record of your question.
BILL MCGUIRE: Sure, sure.
THE COURT: Joy, I don't know if I ruled on the objection by the State, the objection was sustained.
BILL MCGUIRE: Mr. Prescott, let me go back to one of the comments that you made. You said there was some chatter amongst the jury members the first day you came to court. Is that right?
JUROR: Yes.
BILL MCGUIRE: Do you remember what that was, can you tell me about that?
JUROR: Myself and a couple of other people around me wasn't aware what we were there for. And I think we all had an idea once we saw how many potential jurors were showing up, that this was big. And I believe it was the lady sitting in front of me, I couldn't tell you her name or anything but she said, she said, yeah, this is the Timothy Jones case. And I am like, that doesn't mean nothing to me.
BILL MCGUIRE: The name didn't mean anything to you?
JUROR: It didn't mean nothing to me because I have not heard any recent news.
BILL MCGUIRE: You heard stuff about four years ago?
JUROR: Right, exactly. And she said that the guy that killed his children, that still didn't ring a bell. And then she said, something about him getting caught in Mississippi and that rung a bell, that I remember hearing that National news back whenever it happened.
BILL MCGUIRE: When you read the National news story what was your reaction to it?
JUROR: I just heard it on the radio.
BILL MCGUIRE: What did you think, what did you feel?
JUROR: Sorry for the children.
BILL MCGUIRE: That is all I have for you. Thank you so much, Mr. Prescott.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Mr. Prescott.
JUROR: Good afternoon.
SUZANNE MAYES: My name is Suzanne Mayes and I am the Deputy Solicitor here in Lexington County, we represent the State. So just have a few questions for you. You heard the Judge in the outset go through all of the aggravating factors, mitigating factors, things of that nature that you can consider. Can you follow the Judge's instruction at the end of this case and consider all of the factors in reaching a decision on punishment?
JUROR: Yes.
SUZANNE MAYES: Mr. McGuire was asking you specifically about your role potentially as a Juror and what that would entail. And I believe your response, you never had jury duty before.
JUROR: I haven't. That is why I was asking, if that is part of my duty to notify somebody I can definitely do that. You have got to let me know what my duty is.
SUZANNE MAYES: And my question to you, at the end of this case it is Your Honor who will actually charge and other jurors if you potentially are on the jury as to what the law is in that regard. Would you be able to follow the Court's instructions?
JUROR: Yes.
SUZANNE MAYES: And specifically the Court's instructions as to any duties that you would have as a Juror?
JUROR: Yes.
SUZANNE MAYES: Now, one thing that Mr. McGuire was asking you about, how you felt when you saw or heard news coverage in this case. I think you said you heard it on the radio?
JUROR: Yes.
SUZANNE MAYES: Despite that can you put that aside and be fair and impartial in this case even if it involves the murder of children?
JUROR: Yes.
SUZANNE MAYES: And, Mr. Prescott, would you consider, even in a case involving the murder of a child or the murder of two or more persons, would you still consider both the aggravating and mitigating circumstances that are presented in this case?
JUROR: Yes.
SUZANNE MAYES: Would you able to consider all of those factors in ultimately deciding punishment?
JUROR: Yes.
SUZANNE MAYES: Whether that be life without parole?
JUROR: Yes.
SUZANNE MAYES: Or whether that be the death penalty?
JUROR: Yes.
SUZANNE MAYES: And I believe one of the questions that Mr. McGuire asked you is, if you were Governor, where would you stand on the death penalty or life without parole?
JUROR: If I had to choose one or the other, I don't think I can make a decision.
SUZANNE MAYES: So you are open to both potential sentences as an option?
JUROR: Yes.
SUZANNE MAYES: Thank you, Mr. Prescott.
BILL MCGUIRE: Nothing further, Judge.
THE COURT: Do I need to send him out?
BILL MCGUIRE: No sir, I believe he is qualified.
THE COURT: Sometimes we have to have a discussion but you have answered the questions of the Court and I find you qualified to be a potential Juror. So what that means is, you get to go to work. Here is how you are going to keep up with when I need you back. Look on the website to when to come in. You are a qualified Juror. What that means is, there is going to be a list of 50 or so qualified jurors when I get them. We are going to select a panel from that group. You are in the group, you are not on the jury, you could be put on the jury, you may not be. Lexington County website has jury information, go under that and look and see when I need you back. Because it will be one day next week I am guessing. Start watching it Thursday.
JUROR: So there will be another stage of this questioning?
THE COURT: Oh, no. No more questions of you. Once I get the panel the lawyers and I get together, they have met you, they have seen you, and they don't call back in. We select the jury from the list. You will be here during the selection.
JUROR: So all the qualified jurors come in and then you select from that?
THE COURT: Right. There you are and that will be one day next week.
JUROR: How much notice may I be given or not be given.
THE COURT: I would say at least a day. The website will give you more information but you are not going to be called in on a weekend. Watch that website and maybe we will give you more than a day.
JUROR: That would be great.
THE COURT: You are under oath, you have got to follow that oath until I see you again. Don't talk to anybody, don't let anybody talk to you, avoid the media reports. What I want you to do, if you are selected as a Juror, decide the case on what you hear in the courtroom, on the record, with the lawyers, everybody here, I am here, all together. What happens outside is not relevant on what we are going to hear in the courtroom. News media is going to report because it is news and that is what they do. That is fine, they are free to do that but I don't want you to be influenced by anything other than my testimony from the witnesses if you are selected as a Juror and my instructions. Okay. You are free to go. (Whereupon, Mr. Prescott was excused from the courtroom.)
BILL MCGUIRE: Judge, nothing to do with Mr. Prescott, I just want to put on the record, I believe in a situation where we have a Juror bring up the issue that we have to be unanimous, right, that that would give the opening to say, well, let us explain how we work in a Capital case. And in that specific instance where we would have to be unanimous that we would be allowed to ask essentially the question that we have proposed which is twelve can be death, twelve can be life. If they disagree, at the end of the day the Judge takes the case and says the case will be over. In the rarest is where a Juror says something like that I think we should be able to have that window to go into that.
THE COURT: Here is what I think the young fellow, young fellow, he is older than me but I like the way I am thinking. He asked, is that my duty. I think the best response is, the Judge will give you instructions and let me rephrase my question. I think that would have been a better way to handle it rather than giving an explanation. Let me give the explanation. You perhaps could have gone, understanding you have got your moral judgment which you did and you can agree to disagree and you can send out a note. That was the way to go rather than trying to explain the law, I think that falls back on me. And so I would rather, if you get called on that again and totally, he answered with a question which was, it happens.
BILL MCGUIRE: If I remember correctly, when he brought a duty, that was when I was, in fact, talking to him about can you step in and prevent coercion if somebody was being asked to give up their individual moral judgment.
THE COURT: Right. He says, do I have to or am I suppose to.
BILL MCGUIRE: But when I was talking about is when he just, well, we have to be unanimous, right.
THE COURT: Correct.
BILL MCGUIRE: If that happens again I think we should be able to have just the slightest of latitude to say, well, this is how it would end or could end including, if there was disagreement in a non-unanimous jury the Judge will take the case and sentence.
SUZANNE MAYES: And the State would oppose to that, Your Honor.
THE COURT: I like the way Mr. Young did it and he says, if you can't agree and you agree to disagree, at the end of the day his agreement is not a failure. Are you okay with that. That was his question, I thought that was a very appropriate way to put it. And so respectfully I would rather you not explain it the way you want to.
BILL MCGUIRE: I understand.
THE COURT: Mr. Young's characterization was very nice.
SUZANNE MAYES: Yes sir, Your Honor. And the State would object to any attempt by Counsel on either, either of the Defense to attempt to explain the law and instruct the law. That is strictly the role of Your Honor.
THE COURT: Let's get 135 in.
BILL MCGUIRE: I forgot to put on the record that bench sidebar. Do you want me to do that now?
THE COURT: The sustained objection you said you were going to put on the record? You want to do it right now?
BILL MCGUIRE: Yes, if you can stop them.
THE COURT: We were at sidebar, came back and I said the State's objection is sustained. And that is as far as we got.
BILL MCGUIRE: Yes, sir.
THE COURT: Go ahead.
BILL MCGUIRE: Just for the record, we had a sidebar in a response to me asking the question, Mr. Prescott, could you rate yourself with regard to the death penalty in cases of murder, ten being very much in favor of it and one being opposed to it. Could you tell us how you fall out on that scale, could you rate yourself. There was an objection and the Court sustained the objection. And our position was that questions, the purpose of voir dire, the purpose of voir dire is to not just uncover biased but to allow Defense Counsel to intelligently exercise peremptory strikes. There is absolutely one-hundred percent no harm in the question, there is no legal objection to it, there is no legal grounds why it should not be asked. And as I have stated before, a lot of these objections aren't legal objections, they are flavorous, Judge, don't let them do that, they are getting information, there is some advantage they are getting, it is disadvantageous to the State. Judge, could you just shut them down a little bit and not let them gather information for no legal reason, no legal objections. And for the Court to sustain it is error.
THE COURT: That question troubles me some because I guess the proper question is, understand it is two verdicts and if you are ready to say, where do you stand most at the time in a case, absent any facts, and has already answered my question they are a three, they are not a one, zero, and they are not a ten but somewhere in between.
BILL MCGUIRE: Well, so the one, two, three chart is always, that is not the test, it is just if they are predisposed to a certain penalty, one or the other, they are substantially impaired. If they are predisposed to an appropriate significant degree.
THE COURT: I think the question I have been allowing you to ask, I am concerned about that question.
BILL MCGUIRE: And the Court's comments were, when we were at sidebar that, it sounds like I am asking to weigh evidence, this might just be too.
THE COURT: That is an abstract problem.
BILL MCGUIRE: And what I wanted to do is bring him straight to the category case, intentional killing, innocent multiple children. Just knowing that, starting point, one to ten, there is no legal objection to that question, it is not confusing, it is not asking to weigh evidence that he hasn't heard. Just asking his personal views about himself, where does he think he falls out on the scale. Everybody has an opinion about, you know what, I am right in the middle. He could have said that, he could have said, I don't know, six. But that information is not detrimental to the State, it is not prejudicial to the State, it doesn't put anything in his mind, it doesn't prejudice the Juror. It is simply allowing us to get a little bit more information so we can intentionally exercise peremptory strikes. And, again, it is just another attempt by the State, Judge, can you just do us a favor and not let them gather more information.
THE COURT: All right. I understand your argument, I am concerned about that question.
SHAWN GRAHAM: Can I ask Your Honor to consider something.
THE COURT: Yes, what you got?
SHAWN GRAHAM: Voir dire, the purpose of voir dire under 14-7-1020, the purpose is to determine jurors related to the parties, has an interest in the cause, expressed or formed an opinion, has a biased or prejudiced.
THE COURT: They are going to say looking for the biased.
SHAWN GRAHAM: The question, where are you at on the scale is not a biased. The question is, are you one, two or three. Once you are in three you don't have a biased and you can listen to everything. Once you start trying to figure out whether they are pro this or pro that, that is not the purpose of voir dire. The Capital situation allows the lawyers, it doesn't make voir dire a favor, you still have the same parameters. And so any question, I mean, for them to be able to ask a question that is, if you look at--
BILL MCGUIRE: Judge, I thought you restrained the arguments to the lawyer that actually did the Juror and that is what the Court said when we were up there at sidebar.
SHAWN GRAHAM: I was the one speaking up there actually while we were having a conversation.
BILL MCGUIRE: The Court pointed at me and Ms. Mayes and said, those two are going to do that.
THE COURT: I have ruled on that and now y'all are going to argue it more. So, I ruled when Ms. Mayes was standing up and you are making a record of why you think it is allowed. I don't like the question, I don't think it is appropriate, I think it causes jurors to try to figure it out, guess at evidence and weight, just all sort of problems.
SHAWN GRAHAM: I just want the Court to recognize, they keeping making the argument that we are asking for favors and we are not. The case law says that the only questions they can ask are the ones that they don't get to ask it make it fundamentally unfair. So short of them being able to say, me not asking this question makes it fundamentally unfair and I can't show a biased or a prejudiced, it is not an allowed question and they don't have a right to it. And that is always our objection, whether we are saying staking out or the form of the question, it is the question that they want to ask does not make it fundamentally unfair because they want to ask it. That is what the law says.
BOYD YOUNG: Your Honor, I don't know if there is a misinterpretation of the question or what we are asking, we are asking a lot of jurors, what are your general thoughts about the death penalty, are you in favor of the death penalty, are you sort of leaning against the death penalty, are you a little bit more in favor of the death penalty, are you a little bit less in favor of the death penalty, where do you put yourself on the scale of one to ten in favor of the death penalty, always against it. There is no answer other than ten or one which they have already said they are not, it is going to disqualify a jury. We are just gathering information and say, do you sort of lean in favor of it or do you sort of lean away from it. And that is perfectly an appropriate question, we can ask it, do you sort of lean for it or say, hey, you are on a scale, where do you put yourself. We are not asking like, are you going to give the death penalty on every murder case, we are not talking about it. We are asking them that direct question but the scale question is just sort of, where are you, do you sort of lean in favor or do you sort of lean against it, where are you. People like Mr. Prescott who are very middle of the road people, that is fine. We are just sort of trying to probe for where are you coming from.
THE COURT: See, somebody answers four, six, whatever. Tell me what that is, they get that and then--
BOYD YOUNG: Why are you in favor of the death penalty. We ask jurors that question.
THE COURT: I thought we were moving on pretty good until y'all got bogged in on this. I don't like the question so ask other questions and those are fair and helping you evaluate this and now this question has hung us up. I don't like the question. It puts people in an awkward position to try to, I don't like the question. I am okay the way y'all have asked the questions before but this is, I know y'all are trying to gather information, got to be an end to it, I mean I got to give you some leniency. You ask the other question and then you ask this one, we are going on and on and getting basically the same answers. So I rather you not ask the question.
BOYD YOUNG: I understand.
THE COURT: Can we live with the questions y'all have been asking, how you feel?
BOYD YOUNG: We can try it.
THE COURT: Okay.
BILL MCGUIRE: And, Judge, if I could just add this. There is a quote in State versus Bixby where the South Carolina Supreme Court indicates that State versus Woods, 345 SC 583, they put, when they cite Woods they put a parenthetical behind it and they say, the State of South Carolina Supreme Court, purpose of voir dire is not only to determine whether a Juror is subject to a challenge per cause, that would be biased of course, but also to allow the parties to elicit information which will allow them to intelligently exercise their peremptory strikes.
THE COURT: I understand why y'all want to ask it, then you are going to think another one, another one. It is like with a mouse, when you give a mouse a cookie, he wants something else, a little something else. Y'all been asking, what are your feelings on this, what are your feelings on that. This is another way of rephrasing it, how many times do you need to ask that same question in a different way. That is kind of my ruling is, I am giving you four or five questions about your feelings, following up, whichever direction you think they are leaning. And I think that is wonderful, that is what you are suppose to do but we don't need to continually go into the same question, rephrase a different way, we will never get done. I think that y'all are gathering information to exercise your peremptory challenges. I have given you latitude, the characteristics of the victims, I don't understand why we have got to ask the same question five different ways. And so I think y'all are asking it roughly three ways.
BILL MCGUIRE: And, Judge,--
THE COURT: Why do you need that question in addition to your others.
BILL MCGUIRE: Right, right. That is what I was getting to. My point is, that with this particular Juror, we found ourselves in a position where his answers were just so general and so middle of the road--
THE COURT: He would be a good Juror.
BILL MCGUIRE: And I told the Court when we were up there, I am sure he is going to be qualified. I can see that very quickly. It is just that, it is rare that people are exactly in the middle of the road. They must have some leaning one direction or the other. And that is the only, the only reason we ask this question with this guy is because he kind of put himself right on the middle. And we were just trying to ask literally, literally one more question to just see if he is a notch off the middle or not. And that is the only reason we asked of this Juror and it is not going to come often. And, again, the law, the position of the State was that voir dire should be limited strictly just to uncover biased, it is a misstatement of the law, it is untrue and it was wrong. I am sure the Court was always aware that voir dire, so that we can gather information and intelligently use our strikes. Now the State's position was that it is not what voir dire was for, they were very adamant about that and that was a misstatement of the law.
SHAWN GRAHAM: It is not a misstatement of the law. You have already ruled on this, can we move on, Your Honor.
THE COURT: That is what I am wanting to do.
BOYD YOUNG: We are starting panel two.
THE COURT: Juror 135.
BOYD YOUNG: My understanding from the Court was that the Court was going to allow the State to go first on panel number two and we would object based on the reasons that we argued in-chambers, that the right to individual voir dire is guaranteed to the Defense through the statute and not the State and the State's right is derivative.
THE COURT: I am going to allow the State to go first if they want to. If they want to let y'all go first they can do that.
RICK HUBBARD: I tell you what, Your Honor, to this next panel let's let them continue to go first. And when we make it to the third panel we might say that we might want to jump in. How about that.
THE COURT: Fair enough, we will continue this way then. The Defense will go first. Fair enough. Bring me in number 135. (Whereupon, Juror number 135, Martha Edwards entered the courtroom.)
MARTHA EDWARDS, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your name.
JUROR: Martha, M-A-R-T-H-A; Edwards, E-D-W-A-R-D-S.
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Edwards. My name is Eugene Griffith and I introduced myself Monday when we first got over to the other Court House. This is an opportunity for the parties to get to know you a little bit, ask you some questions and find out perhaps some opinions you may have. So I tell you, you just took an oath to tell the truth. Now some questions these lawyers may ask you or I may ask you may be opinions. And so when it is an opinion you are not right or wrong, it is truthful. I mean, there is not a wrong answer. It kind of, Carolina/Clemson, who you pull for, you got a reason to pull for Carolina. I am with you. You pull for Clemson, that is fine too but I am a Carolina fan. That is an opinion. So not a wrong answer. So I want to make that clear to you first. One of my instructions to you, don't talk about the case after you left the Court House. Has anybody tried to talk to you about this case since then?
JUROR: No. My sister-n-law is real curious and she knew I had jury duty. But I didn't discuss anything, my husband still thinks it is a case where you come in for traffic tickets and stuff like that.
THE COURT: He is not aware of why you are here?
JUROR: No.
THE COURT: Okay. You have been very much following my instructions. I am very impressed. Have you seen or heard any of the media reports because the media has been reporting some of this?
JUROR: The only thing was today when I stopped at Hardees to go and get sweet tea, you know how they have the newspaper thing?
THE COURT: Yes, ma'am.
JUROR: I glanced to the left and I saw a headline and I looked the other way but I didn't read it.
THE COURT: And that was a paper in a box here in Lexington?
JUROR: It was, it was.
THE COURT: And that was today?
JUROR: Today.
THE COURT: Have you formed an opinion from seeing that headline?
JUROR: No, I just was, it was just a little bit shocking.
THE COURT: Okay. So that is part of the reason, I want to know, you know, the facts that led to these accusations and these indictments and occurred about four years ago. And so there have been some news reports, some more recent, have any of those news accounts that you may have seen or heard caused you to form an opinion in this case?
JUROR: I don't quite know how to answer that.
THE COURT: Okay.
JUROR: I have not read anything that I can remember. I don't watch the news but I do think probably some years ago, maybe when it happened, my mother may had mentioned that this had occurred. And I don't have, I didn't even know why I was here.
THE COURT: Okay. Some of the lawyers will ask you about that later on.
JUROR: That is fine.
THE COURT: You and your family, any of y'all members of any organizations to advocate victims rights such as Mothers Against Drunk Driving, Students Against Drunk Driving, Citizens Advocating Against Violent Crimes, Bikers Against Child Abuse, any of those victims advocacy rights groups?
JUROR: No, not at the current time, no.
THE COURT: Any time in the past?
JUROR: I want to think maybe I gave some money one time to Mothers Against Drunk Driving.
THE COURT: And that was some time ago?
JUROR: Oh, yes.
THE COURT: Okay. Now, you or your husband make donations to the Troopers Association, the Sheriffs Association, Law Enforcement Association?
JUROR: We do.
THE COURT: Okay. And do you do that on a regular basis?
JUROR: Not so much, it has been a couple of years. I did give to the K-9 Unit earlier this year.
THE COURT: Okay. The dogs that help law enforcement?
JUROR: It is.
THE COURT: Did you give this year?
JUROR: I believe that I did.
THE COURT: All right. Now, would that affect your ability to be fair and impartial to any of the witnesses that may be called because a lot of the witnesses will probably be law enforcement.
JUROR: I love law enforcement.
THE COURT: Okay, fair enough. That is one of those candid answers I am looking for. Now, I sent a list of potential witnesses. The State and the Defense has to provide the Court so we can get ready to get organized with all of the potential witnesses in the case. That way, whoever a potential Juror is, they get selected and they are not caught by surprise half way through the trial. Potential witnesses aren't all of the witnesses. Likely witnesses are likely witnesses and the parties kind of really have a good idea of who they are going to call. They are very likely not call all of these but they have got to tell the Court anybody potentially to be a witness. So they have got to provide all of the witnesses to the Court so I can ask you, do you know any of those potential witnesses?
JUROR: No, sir.
THE COURT: Are you connected in any way to any of them, you or your husband?
JUROR: No, sir.
THE COURT: Not related by blood or marriage or close, personal friends to any of those potential witnesses?
JUROR: I didn't recognize any of them.
THE COURT: Social or business or personal with anybody on that list?
JUROR: Not that I am aware of.
THE COURT: Okay. Now, I am going to give you kind of a broad brush lesson in criminal procedure and some of the elements of the crime and the State's burden of proof, things such as that and I am giving you a lesson on the law but the facts haven't been presented. Some of the facts that may be presented, until we get to trial we don't know what are the facts or what all the testimony will be. So I am kind of operating not knowing because the case hasn't been pre-tried in front of me so I don't know every single witness, I don't know that. But Mr. Jones is charged with five counts of murder. Those charges were made on indictments. Indictments are a paper that provides notice to him of what to be prepared to come into court to defend himself against. Okay. Not proof of anything, not guilt or innocence, it is telling him we are accusing you of doing this. To that he has plead not guilty by reason of insanity. Until the State proves its case, calls the witnesses, tried to prove the case Mr. Jones is presumed innocent until the State finishes the case, the jury considers and determines whether or not the State has met the burden of proof called beyond a reasonable doubt. So until a jury makes that decision and the case has been proven beyond a reasonable doubt Mr. Jones is presumed innocent, all the way through. Do you understand that?
JUROR: Yes, sir.
THE COURT: He is presumed innocent sitting right there right now. That is what the law considers and it is on everybody. Now, the State must prove the elements of murder beyond a reasonable doubt. So I will define murder for you so, see if you can understand this. I want you to understand some aspects of it, since this is a Capital case which makes it slightly different than other cases. Most criminal cases, crimes are charged, accused, indictments, the State calls it and it goes to trial and the jury decides guilty, not guilty. If it is guilty then it is turned over to the Judge and the Judge decides what they believe, after hearing everything, what the sentence should be. That is in most cases. A Capital case is different. In a Capital case the jury does both sides. They do guilt or innocence and if it is a guilty finding then they go to the sentencing side and they decide one of two sentences, life without parole or death. One of the two. Once guilt is determined there is only two sentences available. Life without parole or death, the Judge doesn't come in here and say, 50 years, life without parole, you live the rest of your life in jail, locked down. If it is death then it is death. Those are the two available sentences that the jury decides. That makes a difference, that is why we have got to be a little different in seeking out jurors to sit on cases like this.
JUROR: little different, it is a little more involved, and there is a lot of aspects of the case that are misconceptions. Like I just told you, the jury does the sentencing and they find one of two sentences. It is misconception and do you understand that there are two sentences available and the death penalty is not automatic. Did you know that? A No, sir.
THE COURT: You thought it was automatic?
JUROR: Yes, sir.
THE COURT: So we don't have any facts in this case. Do you understand?
JUROR: Yes.
THE COURT: So in a traditional case the State calls the case and it decides guilt or innocence. This is five cases or murder. The State goes first and it is just on the murder. Okay?
JUROR: Yes.
THE COURT: The State has got to try to prove its case beyond a reasonable doubt. They present evidence, testimony, trying to meet that burden. And a jury then considered whether they have done that or not. Now, in this case Mr. Jones has entered a plea of not guilty by reason of insanity which is slightly different and adds another aspect of the case. When a person does that that is an available affirmative defense. I am going to describe some defenses to you that in the guilt or innocence portion of the case, if it is not guilty of the murder the case ends. It stops. If it is guilt it goes forward with the second stage, that is when the jury decides what their sentence should be. Okay. Now, in the second stage the State is not entitled to ask for the death penalty unless they prove an aggravating circumstance beyond a reasonable doubt. I will list those for you, a few of them, not all of them, the killing of a police officer, rape of a murder, kidnapping with a murder, killing a child, multiple victims. Those are some aggravating factors. The State has got to prove at least one of those to the jury beyond a reasonable doubt before they can say, we are seeking the death penalty and that is done in the sentencing side, it is not in the guilt or innocence side. Okay.
JUROR: Yes, sir.
THE COURT: Did you know that?
JUROR: No, I didn't.
THE COURT: That is part of my job, I get, as part of my job is to instruct on the law. That is what I do, tell the jury, the law of South Carolina is thus and so. I am doing it here right now. Anyway, that is my job, the jury's job is to listen to the facts and evidence, consider it, give it meaningful consideration to the facts and evidence, do that according to the instructions provided by the Court because obviously here today I have talked to you about a couple things about the law that you weren't aware of. And so there are many things in the law or people think the law is this and it is actually not so. And so part of the instruction in the oath you take is, Judge, I agree to accept the law as you instruct it. And if I have a misunderstanding of what it was I am going to accept it as you are giving even if I disagree with it. You might not like it, it is the law, we have got to follow it. That will be your oath, you have got to follow the law as instructed by the Court.
And so if I get the law wrong somebody will deal with that at another time. I instruct it as I believe it to be. You can see the statutory books behind me, that is what the General Assembly, they organize all the law, those are the laws that you hear on the news. And the general Assembly can pass a Bill to do such and such. Okay. Now, in the guilt or innocence phase, the State has got to prove the murder or murders beyond a reasonable doubt. There are defenses available to people that you may hear evidence of. I want to know, can you give consideration to those defenses if the facts support it and the instructions are consistent with those. Those potential defenses would be, identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses available that may be shown by the facts. So if those are presented could you give meaningful consideration to any testimony and evidence which may support those defenses in this case. Can you do that?
JUROR: Yes, sir.
THE COURT: Okay. I told you that Mr. Jones has elected to enter a plea of not guilty by reason of insanity and so that gave a little different verdict form rather than just guilty or not guilty. It gives four forms on the guilt, phase one, four potential verdicts. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty at all. Can you give meaningful consideration to the law as I instruct it, weigh the evidence, whatever it is, aspects of the defenses, aspects of the circumstances of the crimes, elements the State has got to prove, consider all of the evidence. Can you consider all of that consistent with my instructions and give meaningful consideration to each and every one of those potential verdicts.
JUROR: Yes, sir.
THE COURT: Is there any one of those potential verdicts that you couldn't reach a verdict on, like couldn't make a finding on, not guilty, not guilty by reason of insanity, I am sorry, guilty but mentally ill or guilty. Any one of those you could not, if the facts support it, the law is instructed, you would consider each and every one of those verdicts?
JUROR: I would.
THE COURT: Okay. Now, if it is not guilty the case is over. If it is guilty but mentally ill or guilty the case goes into phase two and that is when the State has got to prove aggravating factors. Now, some aspects of the testimony will overlap in both phases. But phase two the State has got to prove aggravating factor beyond a reasonable doubt, the jury has to make a unanimous decision on an aggravating factor. The jury has also got to make a decision on what sentence to give. Now, aggravating factors, I think I gave some, I gave some to you already, killing a police officer, children, multiple victims, rape, murder, that kind of thing. Those are aggravating factors. There is also something called mitigating factors. And those are reasons not to give the death penalty, but to give life without parole. I want to list off some of the mitigating factors. Okay.
JUROR: Yes, sir.
THE COURT: A Defendant has no significant history of prior criminal conviction, use of violence against another person. The murder was committed while the Defendant was under the influence, mental or emotional disturbance, the victim was a participant in the Defendant's conduct and consented to the act. The Defendant was an accomplice to the murder and his participation was minor. The Defendant acted under duress and the domination of another. The capacity of a Defendant to appreciate his criminality of his conduct or conform his conduct, requirements was impaired substantially. The age or mentality of the Defendant at the time of the crime and the Defendant may have been below the age of 18 at the time the crime was committed. The Defendant had mental retardation at the time of the crime. Those are statutory mitigating factors and you can consider other mitigating factors on the list like how he came along when he grew up, how he was raised, childhood, that sort of thing. You are not limited by these statutory ones, you can consider any mitigating factors you want, jury's can. So phase two, the guilt has been proven, the State has got to prove an aggravator beyond a reasonable doubt, at least one. The jury can also consider mitigating factors. Now, can you, knowing a case like this, it is pretty lengthy testimony, may be graphic testimony, may be some very unpleasant exhibits to see regarding the death of these victims. Is testimony and evidence of a subject matter of that sort going to create an issue for you where you can't be fair and impartial to both the State and the Defense?
JUROR: Yes, sir.
THE COURT: It would be?
JUROR: Yes, sir.
THE COURT: Do you think that would create an issue for you?
JUROR: Yes, sir.
THE COURT: And you couldn't, that would affect your ability to be impartial?
JUROR: I am afraid it would, yes sir.
THE COURT: That is the candor I am looking for. Okay. No wrong answers. I want to know this right now than half way in. Okay. If it is going to affect you I understand. Any objection to me excusing her?
BOYD YOUNG: No, Your Honor.
RICK HUBBARD: No, sir.
THE COURT: You are from Greenwood?
JUROR: No, my mother is having surgery in Greenwood.
THE COURT: Oh.
JUROR: I live, my legal address is Lexington.
THE COURT: I saw where you, in Greenwood, is that where you grew up?
JUROR: Can I see. That is where I was born, yes.
THE COURT: Okay. Thank you for coming and you are free to go. (Whereupon, Martha Edwards was excused from the courtroom.)
THE COURT: Let's bring in 432, Kandy Thivierge.
KANDY THIVIERGE, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your first and last name, please.
JUROR: Kandy, K-A-N-D-Y; Thivierge, T-H-I-V-I-E-R-G-E.
EXAMINATION
By The Court:
THE COURT: My name is Eugene Griffith, I introduced myself over in the big courtroom Monday. And you are under oath now and you were under oath then. So I want to know, this is an opportunity for us to get to know you and see if you are eligible and don't have any reasons to not be qualified as a Juror. And so there are no wrong answers. I want candid and truthful answers. Okay. The first question, I told you, please don't discuss the case with anybody. Have you discussed this case with anybody?
JUROR: No.
THE COURT: Has anybody tried to discuss it with you?
JUROR: No.
THE COURT: Have you seen any of the media reports?
JUROR: No.
THE COURT: Did you see any before you took the oath?
JUROR: Yes.
THE COURT: Did those media reports cause you to form an opinion as to what happened or who is right or wrong?
JUROR: I really don't know what happened, it was just bits and pieces when it did happen, I would turn the channel.
THE COURT: Fair enough. You live out in Gilbert?
JUROR: Yes.
THE COURT: You or a member of your immediate family a member of any type of organization which advocates for victims such as Mother's Against Drink Driving, Students Against Drunk Driving, Citizens and Violent Crime?
JUROR: I have sent money to that, to MADD.
THE COURT: So you have contributed to MADD before?
JUROR: Yes. It has been years.
THE COURT: Years, okay. Now, would that contribution, a very nice charity to give to, would that affect your ability to be fair and impartial in this case. I don't want you to come in here and this is not a driving against the influence case.
JUROR: Right.
THE COURT: That would be a good example of, are you a member of Mothers Against Drink Driving, can you fairily consider a driving case. That is what the lawyers are listening for. This isn't a driving case.
JUROR: Right. It would not affect.
THE COURT: And you gave a contribution, you didn't go to regular meetings or anything?
JUROR: No.
THE COURT: Okay. Now, you or your family give donations to the Troopers Association, Law Enforcement Association?
JUROR: I have done that before, yes.
THE COURT: Would that affect your ability to be fair and impartial knowing a lot of police officers may testify?
JUROR: No.
THE COURT: You can consider their testimony and evaluate it?
JUROR: I can evaluate, yes.
THE COURT: Now, are you connected, any of your immediate family connected in any way to any of the lawyers?
JUROR: No.
THE COURT: Know any of them?
JUROR: No, sir.
THE COURT: You connected in any way to Mr. Jones or his family?
JUROR: No, sir.
THE COURT: Now, I am going to give you, kind of streamline some of my questions. But I have got to give you kind of a brief summary, explanation of some of the criminal procedures and a few of the criminal laws and kind of explain some things to you because that is what I get to do as a Judge is instruct on the law.
JUROR: Okay.
THE COURT: And part of my job is to help impanel a fair and impartial jury and then rule on the case and presentation and then instruct the jury at the very end, after they have heard all of the testimony, the law in South Carolina is thus and so. And so one of my request, question of you, there is a lot of misunderstood out there. And I am tasked with knowing the correct law. And so I am going to give you instructions, I am hopeful and very intent on giving you the correct law. And so if I give you instructions are you going to be able to follow the law?
JUROR: Yes, sir.
THE COURT: Even if you disagree with it?
JUROR: Yes, sir.
THE COURT: You might disagree with it. There are some laws that I might disagree with. But yet again, they are still our laws and we have got to follow it. Do you understand that?
JUROR: Yes, sir.
THE COURT: Okay. Now, in this case, let me tell you a couple of things, in every crime, a criminal process, a person is presumed innocent until they have been convicted of the crime they are accused of beyond a reasonable doubt, in front of a jury or they decide to plead guilty, until that time they are presumed innocent. And that presumption stays with them all the way through the accusations, all the way through the trial until a verdict has been found. Did you know that?
JUROR: Yes.
THE COURT: Now, Mr. Jones has plead not guilty, entered a plea of not guilty and asked for a jury trial, we will get more to his plea in a moment, but he is presumed innocent sitting right there right now. And you are aware of that?
JUROR: Yes.
THE COURT: Now, the State has made indictments for five counts of murder. Murder is defined as killing of another person with malice aforethought. That is what the State has got to prove, each of those elements. Malice is defined as hatred, ill-will, hostility, intent on wrong doing. It is a depraved heart. That is malice towards another, the killing took place under those circumstances. That is what murder is defined as. That is what the State has got to prove, those elements, beyond a reasonable doubt before a conviction of guilty can be found against Mr. Jones. That is what the State has got to do.
JUROR: Can I ask a question?
THE COURT: You may.
JUROR: Did he not say that he was guilty when he did this murder?
THE COURT: You know, that is part of a thing is, I am going to get to that in a minute. But he may have given some communications with law enforcement. That is not before the Court right now. And so that is part of my question is, you come across that information from some factor. Would that affect your ability to be fair and impartial in this case?
JUROR: It would not affect me to be fair, I mean not fair. But when it comes from somebody that has been accused by their mouth.
THE COURT: Let me, I am going to keep going and maybe my further explanation may make you understand what he has plead, he plead not guilty. He actually plead not guilty by reason of insanity. That is a little different.
JUROR: Okay.
THE COURT: So here is what happens when that occurs. This is a Capital case. The State has elected to tell Mr. Jones that they intend to seek the death penalty for these crimes. That makes the case a little specialized and it is a two part case if guilt is found by the jury. So there is part one which is guilt or innocence. Part two is sentencing phase. I am going to discuss part one first and foremost.
JUROR: Okay.
THE COURT: In cases, under our law there are several, the State has got to prove the elements of the crime by a reasonable doubt, the jury finds its verdict unanimously. Okay. A person accused of a crime, I am going to give you all the defenses. The statute in the criminal books over here, there are some defenses that a person elects to claim. And if the facts support it and the jury understands it then these defenses can be claimed by a person accused. Here they are. Identification and some of these might not be applicable but I am going to read them all to you. Okay. Identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. So depending on how the evidence and testimony goes as to whether one of those defenses can be shown. Now, in this case, the guilt or innocence phase, Mr. Jones, as I just told you, entered a plea of not guilty by reason of insanity. It is just a little different than just not guilty. Because of that there are four potential verdicts in the guilt or innocence phase. The first part of the trial, there is guilty, guilty but mentally ill, not guilty by reason of insanity and not guilt at all. Four potential options for the jury to consider. Now, depending on the facts that are presented at trial, evidence presented at trial, whatever it is, whichever souce, can you meaningful consider, follow my instructions on the law which I will describe these four potential verdicts, how to evaluate the evidence and testimony, give the appropriate consideration you think it is given due under my instructions. Could you consider each and every one of those potential verdicts if you were selected as a Juror?
JUROR: Under your instruction, yes.
THE COURT: Okay. Now, having shown you the defenses, the defenses are considered and some of them are kind of, all considering is mitigating factors in the second half, in the punishment phase. But the first phase of the case, guilt or innocence. One of those four, if it is not guilty or not guilty by reason of insanity the case stops, over with. Guilty but mentally ill or guilty the case goes to phase two. In phase two the State has to prove an aggravating factor. In a normal, I am going to call it a plain vanilla murder. Somebody kills another with malice in their heart. The State proves it, the Judge determines the sentence, it is not the death penalty because it is not available on a plain vanilla murder. In order for the State to seek the death penalty there must be proven beyond a reasonable doubt an aggravating factor. There are numerous aggravating factors and they are listed in the statutes also, I will list off a couple to you.
Killing a police officer, rape and murder together, kidnapping and murder together, multiple victims, child victims. Those are potential aggravating factors and the State has got to prove those in the punishment side of the case for our jury to be able to consider the punishment. In a Capital case, I didn't explain this to you so we will go back and hear this. First half is guilt or innocence. The second half is strictly punishment. The jury decides the punishment in a Capital case. The death penalty is not automatic. The jury has two options. Life without parole or death. Those are the jury's two options in a Capital case. And the State has got to prove in that, the aggravating factor beyond a reasonable doubt. But also the jury gets to consider any mitigating factors that could have been presented during the trial. And in this case there is going to be a lot of testimony, a lot of evidence presented. Mitigating factors can be this.
There is a statutory list, I will give you a list of mitigating factors. The Defendant has no significant history of prior criminal conviction against violence of another person, never been in trouble before. The Defendant, the murder was convicted while the Defendant was under the influence or emotional disturbance. The victim was a participant of the Defendant's conduct and consented to the act. The Defendant was an accomplice to a murder which was committed by another and his participation was minor. Some of these don't apply but I will give them all to you just in case you will understand some mitigating factors. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct, conform his conduct to the requirements of law was 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.
The Defendant had mental retardation at the time of the crime. There are also non-statutory mitigating factors such as how he was raised and childhood and troubling, education, all sort of things that jury's can consider if those factors, mitigating factors, the testimony is presented. So those are mitigating factors and those are reasons to not give the death penalty, give life without parole. Any one of those are potential things jurors can consider in imposing the punishment. And those two choices, life without parole or the death penalty. So jury's can consider aggravating factors and they also hear mitigation factors. The State has got to prove the aggravating factors beyond a reasonable doubt. The mitigation factors are just presented. Now, can you give meaningful consideration to all of those factors, when we got to the sentencing stage, consider aggravating factors, if the State has proven, mitigating factors, can you consider all the evidence, my instructions on the law, evidence of defenses, evidence of anything, can you consider that in reaching a verdict in this case, I am sorry, a sentence in this case, we are in the sentencing phase, reaching a sentence.
JUROR: Yes.
THE COURT: Okay. Now, I am going to come back and ask you some more questions. I also provided to you a sheet with types of jurors and this is, there are basically three types of jurors. Type one, this presumes guilt has been found and it presumes that an aggravating factor has been found and it presumes there are mitigating factors in the case. Everything is in there. Type one Juror considers conviction is guilty, aggravating factor, I don't need to hear any more, I vote the death penalty, always, every time. That is what happens. A type two person, kind of the other, they found him guilty. Yes, there are aggravating factors. I can't sign my name to a verdict of death. I am the type two, I want life without parole because that is where my personal belief falls. Type three, guilty, aggravating factor, mitigation, I don't have my mind made up. I want to consider everything that is presented, whether it is mitigation, whether it be aggravation, whether it be anything whatsoever, I want to hear everything and then decide a sentence to impose. Where do you find yourself, what type of Juror do you see yourself in?
JUROR: Type one.
THE COURT: Okay. Any doubt about that?
JUROR: No.
THE COURT: Okay.
JUROR: The word in there, proof.
THE COURT: Right. So if the State proved guilt and proved the aggravating factors you are on one?
JUROR: Yes.
THE COURT: Very good. You made it easier on me because we are done with your questions. That is why I said, good, you get to go home.
JUROR: Okay.
THE COURT: And thank you for your patience.
JUROR: No problem. (Whereupon, Juror 432, Kandy Thivierge was excused from the courtroom.)
THE COURT: You want a short break. We will take a couple of minutes.
(Whereupon, a short break was taken.)
THE COURT: The next one is number 91, Arthur Chavis. (Whereupon, number 91, Arthus Chavis entered the courtroom.)
ARTHUR CHAVIS, being first duly sworn, testified as follows:
COURT CLERK: Spell your first and last name for the record.
JUROR: Marion, M-A-R-I-O-N; Chavis, C-H-A-V-I-S, Jr.
EXAMINATION
By The Court:
THE COURT: All right, Mr. Chavis, my name is Eugene Griffith and I met you Monday.
JUROR: Yes, sir.
THE COURT: You are a Clemson man?
JUROR: Yes, sir. Somebody got to be around here.
THE COURT: That's right. I graduated South Carolina, you are not going to hold that against me, are you?
JUROR: No, sir.
THE COURT: I have got to ask you some questions and you are under oath. When you left the courtroom Monday I said, here is your oath, come back when I call you back. Thank you for your patience.
JUROR: Yes, sir.
THE COURT: Have you followed my oath?
JUROR: Yes, sir.
THE COURT: Have you talked to anybody about the case?
JUROR: No, I just told the Old Lady why I had to come today and I told where I work at that I had to come in today.
THE COURT: You didn't talk to them about the case?
JUROR: He wanted to and I said, no, can't talk about it.
THE COURT: So people have asked you but you have not responded?
JUROR: I ain't said nothing.
THE COURT: Fair enough. Have you read any news media, there have been some reports out on the television, news paper?
JUROR: No.
THE COURT: Didn't pay attention to those?
JUROR: No, because in the morning time my wife sleeps, she works on the weekends and she keeps the grandbaby so I don't turn the TV on. I get home at 7:00, 7:30 and I am out at my man shed by the pool. I mean I watch TV but the news is already off by then.
THE COURT: All right. Now, this is, I have got to ask you some questions. There is no right or wrong answer, it is like you pull for Clemson or Carolina, can't go wrong.
JUROR: Well, yeah.
THE COURT: Okay, I will give you that. That is a fun opinion and anyway, some of these questions I am going to ask you, it is going to be an opinion. My personal opinion is thus and so. And it is not like I own a red truck or a black truck, that is fact.
JUROR: Yes, sir.
THE COURT: Ask what kind of truck you drive and you don't say Chevrolet. You drive a Chevrolet?
JUROR: No, Ford.
THE COURT: Okay. Now, in this case any member of your family, a member of your immediate family, a member of any organizations that supports victims rights like Mothers Against Drunk Driving, Students Against Drunk Driving?
JUROR: No, sir.
THE COURT: Citizens Against Violent Crimes?
JUROR: No, sir.
THE COURT: Bikers Against Child Abuse, any groups such as that?
JUROR: No, sir.
THE COURT: You or a member of your immediate family had donations, organizations such as the Sheriffs Association, Troopers Association, Law Enforcement Association?
JUROR: No, sir.
THE COURT: None. You connected in any way to any of these seven attorneys here in the courtroom?
JUROR: No sir, not that I know of.
THE COURT: Don't know them personally?
JUROR: No, sir.
THE COURT: Do you know any member of the Jones' family?
JUROR: No, sir.
THE COURT: His family at all?
JUROR: No, sir.
THE COURT: Okay. Now, I am going to give you a thumbnail sketch of some criminal procedure and aspects of the criminal law. As you know, this is a murder case, there are five indictments that have been handed from the State to Mr. Jones accusing him of murder. An indictment is just an accusation. It doesn't prove anything, it doesn't disapprove anything. It is merely the State, Lexington County saying, Mr. Jones, we are accusing you of murder and we will set it for trial. Now, he is going for a jury trial which means the State has got to prove their case. He has asserted an affirmative offense. He has entered a plea of not guilty by reason of insanity. Now, there are numerous defenses available to people, you may have heard some of them. But potential defenses, I didn't ask you this. Have you got anything on your schedule personally for next month if you are selected as a Juror.
JUROR: No, I am kind of simi-retired. I work at a metal shop, I work there Monday through Friday and a half day on Saturday but I can get off.
THE COURT: You don't have anything upcoming.
JUROR: My wife is a nurse.
THE COURT: Like Clemson is going to the National Championship game or anything?
JUROR: We will have to talk about that one.
THE COURT: Well, I don't think we will go that far.
JUROR: No.
THE COURT: But if you are selected you could sit as a Juror?
JUROR: Yes, sir.
THE COURT: Okay. Getting back to the criminal law. The State has to prove its case beyond a reasonable doubt. They have got to present the facts, testimony, evidence to convince a jury of all aspects of the offense of murder which is defined, the killing of another person with malice aforethought. Malice is hatred, ill-will, hostility, a depraved heart against someone else and that is why you kill them. That is what murder is. The State has got to prove all of those elements beyond a reasonable doubt in order to sustain a conviction. Now, Mr. Jones has presented a plea of not guilty by reason of insanity and therefore he has asked for a jury trial. The State has also suggested to you, they intend to seek the death penalty. What that means is, the State says that because of the nature of your crime and an aggravating circumstance which we understand we have got to prove we are seeking the death penalty. Now, the state has got to prove an aggravating factor beyond a reasonable doubt during the process and it comes in phase two. Okay?
JUROR: Okay.
THE COURT: So phase one is just guilt or innocence. Up or down, the jury finds not guilty, not guilty by reason of insanity the case stops. It is over. If a unanimous verdict of guilt is found it goes to phase two and the jury determines punishment if the State can prove the aggravating factor. And the parties also present mitigating factors, some are defined by statute. Mitigating factors would be reasons you assign to not give a death penalty such as a hard childhood, I will read them off to you later but he has got no significant history of a crime of violence against another person. There is eight or ten mitigating factors some of which may be proven and shown at the trial. And so I kind of want to ask you this in broad terms, a big broad brush because you have not heard anything other than the accusations, five murders, children, he has plead not guilty by reason of insanity. So hypothetical, sent you a list, I am sorry, type of jurors. I have not given you any of the facts. I am going to go further with questions and ask you some other definitions to you later but I want to ask you in broad terms, my job as a Judge is to instruct you on the law during the trial, during the jury selection but most particularly at the very end. I say, ladies and gentlemen, you understand, you need to understand the law of South Carolina is thus, thus and thus. That is my job as the Judge. And so I instruct you on the law and you have an understanding of what the law is, you have got to disregard your misunderstanding and accept it as I give it, even if you disagree with it, you have got to set the disagreement aside. Do you think you can do that?
JUROR: I think.
THE COURT: Okay. Now, the law requires that the aggravating factor has been proven by the State and the mitigation factors be considered during the sentencing phase. The Courts have found and other people have found that there are generally three types of jurors. They kind of fall in one of three categories, that is presumed. The guilt is found, aggravating factor, at least one aggravating factor is found. A type one Juror, after guilt is found and a aggravating factor is proved by the State that regardless of mitigating factors or any other evidence, they say the death penalty, that is just how I feel. A type two Juror is a little different. The State has proven guilt beyond a reasonable doubt, proven on the sentencing side and a aggravating factor is present also. A type Juror says, you know what, I can't impose the death penalty, I have a personal belief that it shouldn't be done because I am just against the death penalty. So I don't care what they say, how bad it was, I am going for life.
The State has proven the guilt, proven the aggravating. Type one is always death penalty, type two, always life. And a type three person is kind of in the middle. The State has proved guilt of murder, the State has proved an aggravating factor or one or more of them, the jury has been presented testimony and evidence, mitigating factors, potential defenses, potential anything. A mitigating factor can be anything. It can be, you can consider how he was raised up, how his childhood was, came from a broken home, whatever, anything can be considered a mitigating factor. Mitigating factors are reasons to give life without parole rather than death. That is what a mitigating factor is. Now, knowing you haven't heard a word about this case and there is a lot out there, there is, you haven't heard anything. The State proves murder, aggravating factor, what type of Juror do you see yourself being?
JUROR: Right now, I would have to listen to what all went on and before and after. I don't know. I mean,--
THE COURT: I am kind of putting you on the spot because you don't know any of the facts other than, there is Mr. Jones, he has plead not guilty by reason of insanity, there are five kids, the State is accusing him of killing them.
JUROR: I would have to know what happened like before and afterwards and remorse or anything.
THE COURT: Now, I am going to give you some more procedures. In a Capital case, this is kind of important. You understand this, this is a Capital case and the State has told Mr. Jones that they intend to seek the death penalty so they are going to attempt to prove the murders. And then if they do, if they don't prove the murders the case is over, it stops. If they do prove beyond a reasonable doubt then there is the sentencing phase. In most cases, most cases I hear, it is called for trial, the State calls the case, the State has got to prove their case because they are making the accusation. A person sitting here doesn't have to prove or disprove a thing, presumed innocent. That presumption stays with them all the way through until the presumption is removed from a finding of guilt beyond a reasonable doubt. So Mr. Jones sitting right there is presumed innocent in a regular trial, whatever, armed robbery, a plain vanilla murder. A conviction is had, the Judge sentences.
The crime, the facts, the Judge decides I am going to give him this much punishment and whatever that is the Judge gives it. In a Capital case it is kind of unusual, in a Capital case the jury imposes sentence. And there are two sentences available to the jury. So we have presumed that guilt has been found. We go into phase two of the trial. The State has got to prove an aggravating factor. There are two available verdicts for that jury. Life without parole or the death penalty. One of the two, nothing else, no in between. There is no getting out on good behavior, life means you die in jail, you serve the balance of your life in the jail. That is the jury's choice, one of the two. Okay. Now, when the jury gets to that stage they can consider, I am going to read the mitigating factors to you now.
A Defendant has no significant history of prior criminal conviction of use of violence against another, murder was committed by the Defendant under the influence of mental or emotional disturbance. A victim was a participant with the Defendant's conduct and consented to the act. A Defendant was an accomplice in the murder committed by another person, the Defendant acted under duress and the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct and to conform his conduct to the requirements was impaired substantially, the age or mentality of the Defendant at the time the crime was committed. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18. Some of these wouldn't apply, Mr. Jones is not below 18. I tailor my instructions to the jury depending on how the testimony comes out because I don't know exactly what the testimony is going to be presented.
So I have got kind of a general instruction at the end, ladies and gentlemen, this is what, that wouldn't be something that I would charge because it wouldn't apply. So I would tailor my instructions consistent with the testimony and say, jury, y'all consider these factors. Here is the law of South Carolina. And the last, the Defendant had mental retardation at the time of the crime. And those are statutory mitigators meaning those are reasons you give life without parole and not impose the death penalty. There are others, like I say, how he was raised up and bad childhood, any reason whatsoever, mercy. That is a reason to not give the death penalty. Those are mitigating factors. You get to the sentencing phase, that is what the jury gets to consider. Okay. Now, considering, can you give meaningful consideration to mitigating factors, whether it is statutory or not, potential defenses, aggravating factors.
Can you give consideration to all of those things consistent with testimony, some of the testimony may be disputed. That is kind of what the jury does, they sort out the testimony and figure out what exactly happened after hearing everything. Can you give meaningful consideration to my instructions on the law, the testimony and evidence which has been presented, consider the mitigation, aggravation evidence, affirmative defense evidence and regular defense evidence. Whatever it is, can you give meaningful consideration to all of that evidence and reach a fair and impartial verdict in this case?
JUROR: I think I can.
THE COURT: You have not come into court today with your mind made up of what happened?
JUROR: I don't know what happened.
THE COURT: Do you have your mind made up as to what punishment ought to be?
JUROR: Not yet.
THE COURT: Okay. Now, do you have any personal belief, moral or religious belief which would prevent you from considering the death penalty?
JUROR: No, sir.
THE COURT: Do you have any moral, personal, emotional belief that you couldn't impose life without parole sentence?
JUROR: No, sir.
THE COURT: You could do that also?
JUROR: Yes.
THE COURT: Depending on the facts?
JUROR: Depending on what you hear.
THE COURT: Now, you understand now, some people don't, do you understand now the State has got to prove guilt and you go to sentencing. The death penalty is not automatic, did you know that?
JUROR: No.
THE COURT: Did you think it was automatic?
JUROR: I kind of thought it was automatic.
THE COURT: That is part of my job, look, here is what we have got to have and this is the procedure. The State has got to prove guilt first and we go find the guilt. And then we go to stage two, sentencing. The jury has got two choices, life without parole, death. Here is the testimony, here are my instructions, can you fairly weigh and consider, deal with, my instructions of the evidence and make a decision. Can you do that?
JUROR: Yes.
THE COURT: Now, I told you Mr. Jones has plead not guilty by reason of insanity. So in the first phase there is a not guilty and guilty side. There are four potential verdicts. There is guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Four potential forms of the verdict. Do you have any preconceived notion or any reason whatsoever that you couldn't give consideration to any of those, each and every one of those potential verdicts?
JUROR: No, sir.
THE COURT: You can do it, you can follow my instruction and consider all four?
JUROR: Yes, sir.
THE COURT: Now, I am working with my notes and I changed them earlier today and this is a question I forgot to ask you. This case involves the death of children, five deaths accused, presumed innocent. There are going to be some graphic testimony, maybe some very, the photographs may be hard to look at, maybe some unpleasant testimony. There is going to be some very harsh things said and shown. Subject matter such as harsh photographs, victims bodies, that type of subject matter. Is that type of subject matter going to prevent you from not being able to consider fairly the evidence in giving Mr. Jones a fair trial and the State a fair trial. Is that subject matter more than you can manage?
JUROR: No, sir.
THE COURT: You can manage that?
JUROR: I was a paramedic for 20 something years.
THE COURT: You were a paramedic?
JUROR: Yes, sir.
THE COURT: You have seen a lot?
JUROR: Yes, sir.
THE COURT: Can you think of any reason whatsoever you couldn't give both the State and the Defense a fair trial?
JUROR: No, sir.
THE COURT: Okay. This is the witness list, you looked over that?
JUROR: Yes, sir.
THE COURT: Are you connected to any of those witnesses?
JUROR: Marty Longshore, he was an EMT up there in Batesburg and now he works for the Sheriffs Department. If it is the same Marty Longshore.
THE COURT: Yes, the same one. Are you close friends with him?
JUROR: No, I just know him from when I was running on the ambulance and everything and he was up in Batesburg. Sometimes I would talk to in-service at Batesburg Rescue Squad sometimes.
THE COURT: Would your relationship with him cause you not to be fair and impartial?
JUROR: No, I ain't seen him in a couple of years.
THE COURT: Okay. Who else?
JUROR: John Moore. He is the Investigator for Lexington County. He was on the JET team with me.
THE COURT: What is a JET team.
JUROR: Joining Enforcement Team, they put a paramedic, a firefighter and a police on a shift together down in Pelion. And he was down there with me.
THE COURT: He was on your shift some?
JUROR: No, he was on another shift. We all like swapped.
THE COURT: He was on a different team?
JUROR: We were all down there at the same thing. He was on a different shift, he was a supervisor on his shift and I was a paramedic supervisor on mine.
THE COURT: Would your relation to him, the fact that you are friends, coworkers--
JUROR: I ain't seen him in a couple of years, since when I left the County.
THE COURT: You are not working with the County now?
JUROR: No, sir. I work with Price Metal Shop Welding.
THE COURT: You told me that. And who else you got?
JUROR: Mel Seboe, Colonel Seboe.
THE COURT: What does he do?
JUROR: He is a Colonel, he works with the Sheriffs Department.
THE COURT: Do you know him?
JUROR: Yes, because him and his step-son, Charlie Smith, me and him played ball together.
THE COURT: Baseball or softball?
JUROR: Basketball. I have been knowing him since I was little.
THE COURT: Would the fact that you grew up, what is his name, Seboe?
JUROR: Yes, Melvin Seboe.
THE COURT: Would that create an issue for you to be fair and impartial, would that be difficult for you?
JUROR: No sir, because I ain't seen him in a coon's age neither.
THE COURT: Now, but any other potential witness you are connected to?
JUROR: No, that is the only three that I recognize.
THE COURT: And you worked for Lexington County for 30 years?
JUROR: Twenty something years.
THE COURT: And now retired. How long ago did you retire?
JUROR: Me and wife started an ambulance company, that was five years ago. I have been working the metal shop for two years. Probably about eight or nine years ago.
THE COURT: Since you worked for the County?
JUROR: Yes, sir.
THE COURT: Now, the fact that Lexington County is involved in this case, the Sheriffs Department is involved in the investigation of this case, does that create an issue for you to be fair and impartial?
JUROR: No, sir.
THE COURT: You got any, with your ambulance service, you got any contracts or anything?
JUROR: She got out of that, she is a nurse at Lexington Hospital.
THE COURT: Okay. Fair enough. I didn't ask him about the potential defenses, did I. Did I skip defenses?
BOYD YOUNG: I thought you went over them. I think you did.
THE COURT: I think I ask you about the insanity defense?
JUROR: Yes.
THE COURT: Self-defense, I discussed those with you early on?
JUROR: Yes, sir.
THE COURT: You will consider whatever term is there, instructions fairly?
JUROR: Yes, sir.
THE COURT: And you will follow my instructions?
JUROR: Yes, sir.
THE COURT: Okay.
THE COURT: Mr. Young, your opportunity.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Chavis.
JUROR: Howdy.
BOYD YOUNG: Thank you for your patience and bearing with us.
JUROR: Yes, sir.
BOYD YOUNG: This is an opportunity for you and I just to have a conversation about your feelings about a bunch of different stuff. Okay?
JUROR: Yes, sir.
BOYD YOUNG: If you don't understand anything or if I confuse you please just let me know.
JUROR: All right.
BOYD YOUNG: Fair enough?
JUROR: Yes, sir.
BOYD YOUNG: I want to start where the Judge sort of left off right then. You know that Mr. Jones is charged with five counts of murder of his children, right?
JUROR: Yes, sir.
BOYD YOUNG: And he has plead not guilty by reason of insanity?
JUROR: Yes, sir.
BOYD YOUNG: And not guilty by reason of insanity means, in the law it means that somebody said I have a mental disease or defect such that I am not able to understand the legal or moral wrongfulness of my action. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Now, some people say I can't consider that as a verdict, it just sort of is letting somebody off. And my question is, is that you or is that not you?
JUROR: Say that one more time.
BOYD YOUNG: Sure. Some people think that not guilty by reason of insanity is just an excuse, it is just letting somebody off and it is not a verdict that they could really give meaningful consideration to.
JUROR: No, sometimes people just loose their marbles sometimes on certain situations.
BOYD YOUNG: I understand being a paramedic you probably dealt with people who are mentally ill before?
JUROR: Yes, sir.
BOYD YOUNG: And I think, you understood the Judge to explain to you what murder is, right?
JUROR: Yes, sir.
BOYD YOUNG: The intentional killing of another with malice aforethought. He talked to you about what malice was, right?
JUROR: Yes, sir.
BOYD YOUNG: So we have had that first trial, the guilty, not guilty, not guilty by reason of insanity, guilty but mentally ill of murder, right?
JUROR: Yes, sir.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And if the Defendant was found guilty or guilty but mentally ill then we would have a second trial?
JUROR: Yes, sir.
BOYD YOUNG: Where the death penalty or life without the possibility of parole would come into play. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And just a couple of more setups. Guilty of murder and I am pretty sure you understand this but that means it wasn't self-defense, it wasn't an accident, the person knew what they were doing, knew the difference between right and wrong, chose to kill an innocent person. Right?
JUROR: Yes, sir.
BOYD YOUNG: My question to you is, at that point and time, guilty, guilty of murder, what are your feelings about the death penalty as the only appropriate punishment for that guilty murder?
SHAWN GRAHAM: Objection, Your Honor, that is not the situation.
THE COURT: Add the aggravating factor in.
BOYD YOUNG: Sure, my apologies.
JUROR: Yes, sir.
BOYD YOUNG: You have got the guilt of murder. Do you understand?
JUROR: Yes.
BOYD YOUNG: And the State has proven an additional factor, the murder of multiple children.
JUROR: Yes, sir.
BOYD YOUNG: You have got guilty of murder, multiple children. What are your feelings about the death penalty as the only appropriate punishment for that guilty of murder?
JUROR: It kind of all depends. Like I said, I told the Judge, it all depends on the situation before, afterwards.
BOYD YOUNG: I don't want to put any words in your mouth and I need you to help me just sort of, you are talking about, what exactly happened because we have decided guilty, guilty, right. You are clear on that?
JUROR: I am talking about like remorse, what did he do afterwards. I mean, do you know what I am saying?
BOYD YOUNG: Yes sir, I do. Those things would make you think that maybe life without the possibility of parole could be an appropriate punishment?
JUROR: Could be.
BOYD YOUNG: Okay. You are not closed off to one way or the other?
JUROR: No, sir.
BOYD YOUNG: If you were Governor of South Carolina and you got to decide do we have a death penalty or we not have a death penalty. Do you, which way do you think?
JUROR: There are some bad people out in the world and I think we need the death penalty in certain situations, I do. I mean there are some really bad people out there in the world. You know what I am saying.
BOYD YOUNG: I do. And for those--
JUROR: Certain situations, yes.
BOYD YOUNG: Okay. I think I understand where you are coming from. You would, you think the death penalty for the worst of the worst?
JUROR: The worst of the worst.
BOYD YOUNG: It should be an option?
JUROR: It should be, yes.
BOYD YOUNG: And am I understanding you correctly, do you think that life without the possibility of parole is also a substantial punishment for somebody who has been found guilty of murder?
JUROR: I believe it is because, you know, being locked up twenty-four hours a day and first, you have got to think about what you did the whole time. I like getting in my pool and everything and I am pretty sure in jail for the rest of your life ain't no better roses at all.
BOYD YOUNG: Right. Mr. Chase, do you have an opinion about whether or not we use the death penalty too much or not enough or too little, do you have an opinion about how often it gets used, we should use it more?
JUROR: There is, I don't know how many people are on death row right now but it takes 15 or 20 years, you know, to finally execute the sentence of whatever. And there ain't been nobody executed in a while.
BOYD YOUNG: That's true. And do you think that we should make it faster?
JUROR: I think we should make it faster. Once, you know, all the appeals and everything go and everything.
BOYD YOUNG: Do you have any concern that if you were a Juror and you voted for the death penalty, do you have any concern that it wouldn't be carried out?
JUROR: That is up to the State.
BOYD YOUNG: And the Judge would tell you you have to presume that if you vote for the death penalty the Defendant will be executed?
JUROR: It is going to be carried out, I assume, yes.
BOYD YOUNG: Do you have any questions about that or any concerns about that?
JUROR: No, sir.
BOYD YOUNG: And you understood the Court to say that life without the possibility of parole means that you would die in prison?
JUROR: Yes, he wouldn't get out.
BOYD YOUNG: Right. Mr. Chavis, let me talk to you about, let me check in real quick. Mr. Chavis, one question that I want to go back to, this sort, there is some real bad people out there. Could you think about a really bad person that would make you think that maybe life would be an appropriate punishment for that really bad person?
JUROR: It all depends on what they have done, you know what I am saying.
BOYD YOUNG: So even if you thought somebody was really bad could life still be an appropriate punishment?
JUROR: It could be, like I say, it all depends on like remorse, what he did afterwards.
BOYD YOUNG: Yes, sir. I think I understand where you are coming from. Thank you for sharing your opinions. I want to talk to you a little bit about sort of how this process works. And we have talked some about guilty, not guilty by reason of insanity, guilty but mentally ill, not guilty of murder, right?
JUROR: Yes.
BOYD YOUNG: And we talked about statutory aggravating circumstances and the Judge has told you that the State has the burden of proving statutory aggravating circumstances beyond a reasonable doubt and all the jurors have to agree that it is proof. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And then we talked about mitigating factors the jury could also consider?
JUROR: Yes, sir.
BOYD YOUNG: Mitigating factors are different than aggravating factors, not just in that, they lean a person towards a life sentence but they also don't have a burden of proof on that. Do you understand what I am saying on that?
JUROR: Yes, sir.
BOYD YOUNG: So each Juror, for himself or herself, decides what is a mitigating factor to them. Okay?
JUROR: Yes, sir.
BOYD YOUNG: And they can give whatever value they want to. If a Juror says, I saw this about a Defendant's background and I think based on that factor I think I would give that the value of life without the possibility of parole, I am going to vote for life based on that factor. And another Juror says, I didn't see that but I saw he had a relationship with his family and based on that I am going to vote for life without parole. And that is okay that they don't have the same mitigating factor. Am I making sense?
JUROR: Yes, sir.
BOYD YOUNG: I feel like it is late in the afternoon and I feel like I am just talking. You with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Don't have the burden of proof?
JUROR: Yes, sir.
BOYD YOUNG: And jurors don't have to agree on whether or not it is proven or not. Makes sense?
JUROR: Yes, sir.
BOYD YOUNG: And a Juror can say, I don't have any reason at all but based on who I am and my sense of mercy I feel like to vote for life?
JUROR: Yes, sir.
BOYD YOUNG: Don't have to have any reason. Can you respect that?
JUROR: Yes, sir.
BOYD YOUNG: Can you respect a Juror who says, I don't have any reason, this is my decision and I am going to vote for life for no reason at all.
JUROR: That is his decision?
BOYD YOUNG: Right. Could you respect that decision?
JUROR: Yes, sir.
BOYD YOUNG: What we call this decision, I am sorry, this concept of mercy and we call this, a lot of people call a verdict for no reason a mercy verdict. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Based on who you are do you think that mercy is something that a person earns or do you think that it is something that is freely bestowed on another?
JUROR: Mercy is bestowed on somebody because, just like you, I can have mercy for you and you can have mercy for me.
BOYD YOUNG: Right. It is like, if I understand you correctly, it is sort--
JUROR: It is given by somebody else to somebody.
BOYD YOUNG: Right. I understand. This decision that we talk about whether a person lives or dies, the Supreme Court calls it individual moral judgment. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And moral judgment, we make these judgments every day in our lives, right?
JUROR: Yes, sir.
BOYD YOUNG: And you have made your own individual moral judgment about what faith is right for you, right?
JUROR: Yes, sir.
BOYD YOUNG: And you recognize other people may have made different decisions about what faith is right for them?
JUROR: Yes, sir.
BOYD YOUNG: And you expect people to respect your choice about your faith?
JUROR: Yes, sir.
BOYD YOUNG: And you likewise respect their choice, their individual moral judgment about what is right for them?
JUROR: Yes, sir.
BOYD YOUNG: And if you saw somebody being bullied or harassed into changing as to what they arrived at as their individual moral judgment would you stop it?
JUROR: I think I would. That person has got a right to think whatever they want to. That is his advantage.
BOYD YOUNG: And at the end of the day when we are talking about individual moral judgments it is okay to agree to disagree?
JUROR: Yes.
BOYD YOUNG: Do you understand that as a Juror, at the end of the day making an individual moral judgment, agreeing to disagree is not a failure of the jury?
JUROR: Yes.
BOYD YOUNG: Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Thank you, Mr. Chavis.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Mr. Chavis, my name is Shawn Graham, I am a Deputy Prosecutor. How are you?
JUROR: Howdy.
SHAWN GRAHAM: I appreciate you coming up here and answering some questions for us.
JUROR: Yes, sir.
SHAWN GRAHAM: If I understand right you are a type three Juror. That is the one that says you want to listen to everything before you make a decision and after listening to everything you can either do a sentence of life without parole is appropriate or death is appropriate?
JUROR: Yes, sir.
SHAWN GRAHAM: You understand that if, maybe you don't understand, if you as a jury, all twelve of you decide that death is the appropriate sentence you would actually sign your name to a piece of paper.
JUROR: Yes.
SHAWN GRAHAM: Some people have a problem, they will say something out loud but they won't sign their name. If you and the rest of the jury decided that death was the appropriate sentence after hearing all of the testimony would you be willing to sign your name to that document?
JUROR: Yes, sir.
SHAWN GRAHAM: Okay. One of the questions I had whenever you, your questionnaire that you filled out said that you were a Mason, I think, is that right?
JUROR: Yes.
SHAWN GRAHAM: Can you tell what Lodge you belong to?
JUROR: I am a member of Swansea Lodge, 133. And I am also, I live in Pelion, so I am a member at Elmore Lodge, 288 also.
SHAWN GRAHAM: So 133 is where you started and 288 is where you are now?
JUROR: Yes. Well, I am still a member of both of them.
SHAWN GRAHAM: You are a member of both?
JUROR: It is called Dual Membership.
SHAWN GRAHAM: Okay. Thank you, Mr. Chavis.
BOYD YOUNG: Nothing further, Your Honor.
THE COURT: Do y'all want to be heard?
BOYD YOUNG: No, sir.
THE COURT: Mr. Chavis, based upon your answers and your responses and my questions and the lawyers questions I find you qualified to be a Juror. You have got to check in, you have got access to the internet?
JUROR: Yes sir, I checked it last night.
THE COURT: You are now a qualified Juror. There is a number of y'all that will be qualified. Once the Court gets enough qualified jurors then I am going to put a message on that board that says, all the qualified jurors please report back to the Court House on such and such day. You will come back in that day and we will select a jury. So you are a potential Juror, not a member of the actual jury yet. That is another step. Until that time you are still under oath and do not talk about the case, do not do any research, do not pay attention to news media reports. The news media has got to do their job and they have got to report this. I don't want you to be influenced by their stories, I want you to be influenced and to make your decision on what is said in the courtroom. I have got your oath on those issues.
JUROR: Yes sir, I ain't going to jail.
THE COURT: You are free to go. Thank you for your patience.
JUROR: All right.
THE COURT: Let's bring in number 368, Sara Russo.
SARA RUSSO, being first duly sworn, testified as follows:
COURT CLERK: State your name and spell your name.
JUROR: Sara, S-A-R-A; Russo, R-U-S-S-O.
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Russo.
JUROR: Hi.
THE COURT: And thank you for your patience, this process is moving a little slower than I had hoped. Most of that has been getting started. You are the last one to do today. My name is Eugene Griffith, I introduced myself Monday to you and when we left the courtroom I said, placed you under oath, I want you to accept the oath, do not talk about the case. Has anybody talked to you about the case?
JUROR: My husband.
THE COURT: Did he ask you if you were on jury duty?
JUROR: Well he knew I was going to jury duty, he asked me if that was what it was.
THE COURT: Did you tell him?
JUROR: Yes, I did.
THE COURT: Anything else?
JUROR: No.
THE COURT: Did you talk to anybody else about the case?
JUROR: No.
THE COURT: Now, this is an opportunity for the lawyers and for the Court to get to know you better and want to see if you are going to be qualified as a Juror or not. We are looking for an end result, we want people with an open mind, don't know anything about the case, can be fair and impartial. That is what I am looking for in the end result, that is what the lawyers are looking for, unbiased people who don't know anything about it and follow instructions, that is what we are looking for. Now, have you, you or a member of your immediate family members of any organizations to support victims rights like MADD Mothers, SADD Students, Citizens Against Violent Crimes, Bikers Against Child Abuse, any advocacy groups like that?
JUROR: No, sir.
THE COURT: You or your husband, you got children?
JUROR: I have four step-children.
THE COURT: Okay. You or a member of your immediate family give any contributions to the Troopers Association, Sheriffs Association, Law Enforcement Association, any law enforcement groups?
JUROR: No, sir.
THE COURT: And are you connected to any of the lawyers?
JUROR: No, sir.
THE COURT: Know them in any way?
JUROR: No, sir.
THE COURT: Are you connected in any fashion to Mr. Jones or his family?
JUROR: No, sir.
THE COURT: I sent you a list of potential witnesses, a lengthy list?
JUROR: Yes.
THE COURT: I am required to ask the lawyers to call potential witnesses. They are not required to call them all, they are required to tell me potential witnesses with hopes that we can ask jurors, do you have any connection to any of them so if they are called would it create an issue for you. Do you know anybody on the list?
JUROR: I believe I do.
THE COURT: Who do you think is a potential connection?
JUROR: I believe I know James McConnell, Shawn Spivey and especially David Stonecypher.
THE COURT: The fact that you said his name, what does he do?
JUROR: He works at Intel.
THE COURT: Do you work at Intel?
JUROR: No.
THE COURT: Okay. How do you know Mr. Stonecypher?
JUROR: I grew up with him.
THE COURT: Did you grow up in this area?
JUROR: Yes.
THE COURT: Are y'all friends, are you still friends with him now?
JUROR: I am not close friends with him.
THE COURT: Okay.
JUROR: I know his family.
THE COURT: Tell me the other two folks?
JUROR: James McConnell, if it is the same person, I believe is a former student or family of my husband and my music lessons school. The same for Shawn Spivey, if that is the person I am thinking of, I believe that they are parents to some of our students.
THE COURT: The fact that you are connected potentially with these potential witnesses, would that put you in a difficult position or can you be fair and impartial in spite of a prior friendship, knowledge, whatever the relationship is, can you, would it make it difficult for you if they had to testify in front of the Court and you had to consider their testimony. Can you still be fair and impartial to both the State and Mr. Jones?
JUROR: Yes, sir.
THE COURT: Now, this case, the jury selection process will be finished up early next week, the trial will start some time after that, a day or so. The trial is predicted to last a couple of weeks maybe. Do you have anything personally scheduled, vacation, anything planned that is already locked in, paid for that would create a hardship for you if you were picked as a Juror?
JUROR: My work would be a hardship for me if I was picked.
THE COURT: What do you do?
JUROR: I teach voice lessons.
THE COURT: You teach at the school?
JUROR: I teach at a private music lesson school that my husband owns.
THE COURT: And so you have got lessons scheduled that would interfere with?
JUROR: Yes, I have to pay someone else to do them, to substitute teach for me.
THE COURT: Okay. Now, other than that, anything else going on?
JUROR: I have a, this Saturday, a music performance that I am under contract for.
THE COURT: That won't be a problem?
JUROR: I have got a student rehearsal day the following Saturday and a student performance the following Sunday.
THE COURT: Okay. Other than those three things and the voice lessons and whatnot?
JUROR: That is it and my teaching.
THE COURT: I am going to give you kind of a thumbnail sketch of criminal procedure because part of what we do here is a little bit different than traditional, the criminal process is not known by everybody. In South Carolina, part of what I do as a Judge, I instruct on the law, I rule on evidence, rule on things during the trial, admissible, inadmissible, fair question, unfair question, that kind of thing. And I also at the very end of the trial instruct the jury, jury, you are to consider the evidence presented. The law of South Carolina is thus and so and I instruct the law so one of your oath's will be, if I instruct the law you agree to accept it as I instruct it even if you disagree with it, think it is not fair. You have got to accept the law as instructed by the Court. Do you understand that?
JUROR: Yes, sir.
THE COURT: Okay. Now, I am going to go over certain aspects of this because in every criminal case a person is presumed innocent, that presumption stays with them, they are presumed innocent all the way through the trial until the verdict is reached. They don't lose that presumption until the State presents its case through witnesses and evidence and a jury deliberates and reaches a verdict. And that verdict, if he is found guilty then the case is found guilty. As he sits here today, Mr. Jones is sitting right over there, is presumed innocent. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, the State has made accusations through indictments, those are accusations, there are five indictments that they are accusing him of committing murder, five times over. The State has got to prove those accusations beyond a reasonable doubt. They have got to prove each and every element of a murder charge in order to sustain a conviction. The verdict has got to be unanimous, it is beyond a reasonable doubt which is the burden of how hard, how difficult it is to prove. That is the State's responsibility. Mr. Jones doesn't have to prove a thing in a traditional case. Now, you understand that until the State presents its case he is presumed innocent. Do you understand that?
JUROR: Yes, sir.
THE COURT: And in most criminal cases, this is a little different, this is a Capital case, in most criminal cases the State makes an accusation of a crime against a person, the case is called for trial, the jury hears the testimony and evidence, the Judge instructs them and they make a decision. If it is guilty then the punishment is left to the Judge, the Judge has to impose the sentence of whatever the Judge believes is appropriate under the law.
JUROR: Capital case is different. The jury decides guilt or innocence. If guilt is found it goes to a second stage. In stage two the jury gets to decide the punishment, not the Judge. So in stage one it is called guilt or innocence, so you decide whether they are guilty or innocent. That is the issue. If not guilty is the verdict the case is done, you don't go to stage two. If guilty is found by the jury beyond a reasonable doubt of the murders accused then the stage two which is the sentencing side, the sentencing phase of the trial. If it gets to stage two then the State has got to prove, because on plain vanilla murders, the sentence can be 30 years to life. In a Capital case the State has got to prove the murder and then they also have to prove an aggravating factor. The statute, these books behind me, they list the aggravator factors and I will name off a couple of them to you.
The killing of a police officer, killing of children, multiple killings, rape of murder, kidnapping of murder, those are the aggravating factors and the State has got to prove an additional aggravating factor for at least one of the aggravating factors in order to be able to request a jury to issue punishment of the death penalty. So that is the second and the State has got to prove that beyond a reasonable doubt. The jury has got to make one of two decisions in the punishment side. Life without the possibility of parole or death. Two decisions they make, one of the two, no in between. The death penalty is not automatic. One of the two decisions. So death penalty, life without parole. They consider the aspects of any testimony, I will describe some of the testimony to you but the State has got to prove that additional aggravating factor. You also get to hear a lot of mitigating factors. Mitigating factors, I will give you some defenses too, potential defenses that may have a play in the testimony presented. Potential defenses, now all of these don't fit. I am going to tell you, my instructions on the law are tailored to the individual cases and I have got to wait until the testimony comes through and it is presented to the jury to say, okay, the instruction on this will be appropriate. Some of these are not appropriate and I wouldn't put them in the instruction but I am going to list them to you anyway. Okay? A Yes, sir.
THE COURT: Potential defenses to a murder would be identification, accident, involuntary intoxication, suicide, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defense and you may hear testimony about those. Can you give meaningful consideration to testimony and evidence which may or may not support those defenses in this case whether it is presented on either side of the case. Can you do that?
JUROR: Yes, sir.
THE COURT: Okay. Now, mitigation is a little different. We are in the sentencing phase, guilt has been found, we get to the mitigation. Mitigation are reasons to give life rather than death. Perhaps some mitigation facts, these are statutory. A Defendant has no significant history of criminal conviction involved in the use of violence against another person, he hasn't done anything like that before. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. A victim was a participant in the Defendant's conduct and consented to the act. A Defendant was an accomplice in the murder committed by another and his participation was relatively minor. The Defendant acted under duress or the domination of another. The capacity of a Defendant to appreciate the criminality of his conduct, to conform with his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime was committed. The Defendant was provoked by the victim in committing the murder. 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 statutory ones, there are others, perhaps the Defendant came from a broken home, had a hard life, things of that nature, personal issues with him. Those are mitigating factors. And so in the sentencing phase you consider all of that.
JUROR: Okay.
THE COURT: Instructions of the Court. Now, I hand you a sheet--
JUROR: The types of jurors?
THE COURT: Yes, the types of jurors. Type one, so this is presuming a couple of, you don't know any of the facts of this case other than the accusations. That is going to be all presented to you. But for the sake of your conversation right now, the State proves murder. The State proves aggravating circumstances beyond a reasonable doubt, unanimous to the jury. Evidence presented regarding mitigation. A type one Juror would be a Juror to say, you know what, the State proved its case beyond a reasonable doubt, they proved the murder, the State also proved an aggravating circumstance beyond a reasonable doubt. Certainly there is mitigation here but I don't care, the appropriate sentence is always going to be the death penalty. Type two Juror, a little bit different. The State has presented its case, proved the murder beyond a reasonable doubt, proved the aggravating circumstance beyond a reasonable doubt, presented mitigation from whichever source.
There is really no burden of proving mitigation, mitigation is just shown and you just hear it and consider it so the State doesn't have to prove mitigation or disprove it, there it is. Type two Juror says, you know what, I have got a moral or personal belief that I can't impose the death penalty no matter what. That is just my belief and I am not going to do it. I don't care what they show, I don't care what happens. The sentence is always going to be life for me. Type three, kind of in between the two. The State proves the murder, the State proves beyond a reasonable doubt the aggravating circumstance, the jury is presented mitigating facts, all the facts, all the circumstances, the Judge instructs the law. Type three Juror says, I want to hear and decide what I think would be the appropriate punishment. Whether it be life or death, I can't make up my mind until I hear everything. How would you describe yourself?
JUROR: Type two.
THE COURT: So you, one of the requirements of a Capital case is the jurors, if they make a decision to impose the death penalty, all the jurors have to sign the sentence form. Could you do that?
JUROR: Can you clarify the question.
THE COURT: Here is what it is. You tell me type two which means you think life in prison is the appropriate punishment no matter what.
JUROR: Correct.
THE COURT: In a death case, if the jury decides death, members of the jury has to sign the sentence form. You are telling you could or could not do that?
JUROR: I could not do that.
THE COURT: Okay. You remember, I told you there are no right or wrong answers, no wrong answers.
JUROR: Okay.
THE COURT: I want candor, that is what I need.
JUROR: That is the truth.
BILL MCGUIRE: Nothing from the Defense, Your Honor.
THE COURT: Anything?
RICK HUBBARD: Nothing from the State.
THE COURT: Ms. Russo, you will not be qualified. Thank you for your patience.
JUROR: Thank you. (Whereupon, Ms. Russo was excused from the courtroom.)
THE COURT: See y'all at 9:00.
RICK HUBBARD: Yes, sir. (Whereupon, the trial will resume at 9:00 am the next morning.)