4.Motion for New Trial Based on After-Discovered Evidence
108 linesBOYD YOUNG: Your Honor, this is after-discovered evidence that Dr. Kruse's testimony is unreliable under Jones and Council. We would move for a motion for a new trial on the guilt phase based on after-discovered evidence at this time.
RICK HUBBARD: Your Honor, it's hard to say it's after-discovered when they had the report, their witnesses, their experts had the report and that their expert only bothered to call the colleague the day after she got grilled on the stand.
THE COURT: These are expert witnesses testifying to their expert opinion on evaluations. I don't know that it qualifies as after-discovered evidence. Mr. Jones has been thoroughly tested, thoroughly examined, thoroughly evaluated, thoroughly interviewed. Dr. Kruse has been known since the hearing we had with Dr. Frierson when he asked for the tests to be administered because he didn't do them. He had to subcontract them out to a psychologist, in this case, a neuropsychologist. We even had hearings on the raw data, preserving it and not allowing either side to single out questions to use them in cross-examination of any witnesses, and that was not done. I don't believe this is after-discovered evidence. It's a newly-discovered expert witness that was presented late, but I don't think it entitles Mr. Jones to a new trial. Respectfully, I'll deny it.
BOYD YOUNG: Your Honor, to the issue of the admissibility of Dr. Flores' testimony at the penalty phase of the case. Of course, the issue in the guilt phase of the case was a very narrow mental health issue about not guilty by reason of insanity or guilty but mentally ill as it related to the crime. In the sentencing phase where all mitigation evidence is admissible and mental illness is a statutory mitigator, the Eighth Amendment requires the admission of mitigating evidence and a relaxation of the rules of evidence. Dr. Kruse left the jury with a false impression that Mr. Jones was malingering, which can be a devastating accusation in a death case. Dr. Flores can show that that accusation that carries over to the sentencing phase is false. It's mitigating evidence for character, remorse and mental illness. It should be allowed at this phase of the trial.
THE COURT: Y'all keep going back to malingering and making it such a big issue. I don't remember the witnesses -- Dr. Frierson certainly didn't. He discounted it, the malingering. It's almost like y'all are fixed -- because the word malingering was said, it's not become some gigantic issue. And it certainly didn't appear to me throughout the entire trial that the accusation was, you know, Mr. Jones has got us all fooled. He's malingering. I don't think that's been presented at all. I think it's a possibility with a symptom or two, but, overall, malingering has been mentioned, but it's not been the focus of the whole trial at all. It's been not. So I'm kind of -- I'm confused by this malingering becoming in all caps like that was the entire reason the jury, after 15 days of testimony, found him guilty. I don't feel it.
BOYD YOUNG: Your Honor is correct in that's how Dr. Frierson testified. And when I met with Dr. Kruse before trial, she was emphatic that she was saying that he was not malingering based on all of the data. However, when she testified, what she said was he's consistently across the board malingering. And that was what her testimony was to the jury and that's the false impression that needs to be corrected by Dr. Flores.
THE COURT: I don't remember it that way. The record may prove me wrong, but I don't remember that she changed from one to the other. I don't remember that. You may be right.
RICK HUBBARD: Well, Your Honor, no cross was directed about hey, you told us one thing. This is the first anybody has ever said she said something to these attorneys that differed from her cross. She was crossed at length by Mr. Secor on the very issues that were addressed here today. On about the SIRS testing, the SIMS testing, the score on psychosis versus the total score, all that was already brought forward in the cross, all of it. And now, if she were to testify now, Ms. Flores were to testify now, I don't have a witness. I can't reply because mine's under a threat of an ethical violation. She doesn't want to come back in this courtroom. Even though she said she did nothing wrong and is mortified that anybody would critique her using her notes and raw data without picking up the phone saying hey, how did you conduct this test. They could do this to any other witness the State has. They could go back into another first phase witness. Dr. Frierson may be next.
BOYD YOUNG: All the hyperbolic language to the side, this is the issue that's in front of the Court.
THE COURT: All right. Let me hear your motion one more time because -- I'm going to take a break, but I want to hear it one more time. I've heard enough. I want to make sure I understand your specificity of what you're asking for.
BOYD YOUNG: Sure. Dr. Kruse left the jury with a false impression that Mr. Jones was malingering. This is a devastating accusation in a death case and Dr. Flores can now show that that accusation, which carries over to the sentencing phase, is false. It's mitigating evidence for character, remorse and mental illness.
THE COURT: So you want to present Dr. Flores, she rescored the test and her belief is that Mr. Jones is thus and so?
BOYD YOUNG: Not malingering in testing consistent with people who have schizophrenia or a delusional disorder, yes sir.
RICK HUBBARD: And I strongly object. Because here comes a witness out of nowhere. I have no basis or --
THE COURT: I just want to make sure I know what he's asking.
RICK HUBBARD: Yes, sir. I just want that --
THE COURT: A lot has been dumped in my lap this morning and I'm trying to make sure I get it.
RICK HUBBARD: One final point, this is the reverse of Inman. State v. Inman, Capital case up in the upstate, where the State intimidated a witness so that she would not testify, threat of arrest. This is pretty much the reverse. They've brought in somebody out of the blue, no notice to attack a witness from the first phase, even though we're well -- almost done with the second phase. Basically, put her in a position where she can't even come in this courtroom and defend herself. And so, the State now has no reply if Dr. Flores testifies. I have no reply because they scared my witness off.
BOYD YOUNG: Well, it would be improper to put Dr. Kruse up to testify to the same thing again anyway. Nobody has made any threats against Dr. Kruse.
THE COURT: I'm considering filing an ethical violation is not a threat?
BOYD YOUNG: No, sir. I mean, Judge, we all operate under the threat if we do something unethical --
THE COURT: Oh, it's a threat.
BOYD YOUNG: No. I mean, it's a fact of life. We all operate --
THE COURT: You're telling me that the fact that there's been a presentation that an ethical violation may be coming down the pike wouldn't influence her somewhat?
BOYD YOUNG: The fact that somebody says I think there's problems with your testimony and if you did something unethical, I'm duty bound to report it. No, that's not a threat, that's a fact.
THE COURT: Sounds like a threat to me. I'm a little older than you.
BOYD YOUNG: I got grieved by the Supreme Court yesterday -- not by the Supreme Court, I got grieved by a client through the Supreme Court yesterday. But what I'm not -- I'm not worried about it. I didn't do anything wrong. I'm going to write my response. They'll deal with it. That's not like, all of a sudden, my career is over, I'm going to have to surrender my license because a client grieved me. It happens.
RICK HUBBARD: It's very different from when an attorney says you've done something wrong, threatens you so that you don't continue a trial or you don't do what you're supposed to do because you're under a threat of being grieved. That's exactly what this is and it's her livelihood.
THE COURT: All right. Let me think about. Let's go off the record and take a break.
(Whereupon, a short break was taken.)
THE COURT: All right. After the brief break, we're going to accept Dr. Flores' testimony by way of proffer and not going to present it to the jury. It's been proffered. The exhibits have been marked as a Court's Exhibit. I'm not exactly sure how I want to compartmentalize that, but I'm going to take that under advisement as to whether I want to seal it where it can't be reviewed except by the Appellate Courts or not. I'm going to consider that. I'm not going to rule on that right now because I don't have time to look up and see whether I can do that or not. We can move on without having to address that issue right now. So the motion to present that evidence to the jury is respectfully denied. Now, I reviewed when we -- right before that, the witness list, State's and Defense's witness list, and I recollect that the witness lists were combined for purposes of qualifying the jury, which is Court's Exhibit 63. I am certain the witness list handed by the State to the Court listed Dr. Kruse as a witness. I'm certain of it because it was presented to me prior to jury qualifications. The Court's Exhibit number 63 doesn't have her name on there. That was only presented to the jurors. That wasn't presented to the lawyers. The lawyers knew Dr. Kruse was coming because we had some extensive, lengthy, almost nonending, still going on to this day hearing with Dr. Frierson and his use of Dr. Kruse. We're still addressing that issue. Dr. Kruse was not a surprise witness. She was a witness. She's testified. Dr. Flores presented via proffer and that's where it's going to end.
RICK HUBBARD: Your Honor, just for the record, that particular list was the Defense's attempt to combine witnesses, that's why we had another one with Dr. Kruse on it.
THE COURT: It was a separate list.
RICK HUBBARD: Right.
THE COURT: The one the State presented was not a combined list.
RICK HUBBARD: Right.
THE COURT: There was a Defense's list uncombined also, that I also saw.
RICK HUBBARD: Yes, sir.
THE COURT: Dr. Kruse was not a surprise witness.
RICK HUBBARD: Yes, sir.
THE COURT: And everybody had notice. The jury may not have, but the jury need not have done that except for purposes of having a connection. With regard to the social historian -- that's the next witness, correct?
CASEY SECOR: Yes, sir.
THE COURT: Or the first witness today.
CASEY SECOR: Yes, sir.
THE COURT: All right. And we've proffered some of her social history. I believe it will be proper. Now, I think the Defense can present some limited facts from the social historian. I'm going to give you a for example, that Ms -- Tim, Sr.'s mother? I can't call her name.
CASEY SECOR: Ms. Roberta.
THE COURT: I remember Roberta, I was trying to call her by her last name.
CASEY SECOR: Oh, Thornsberry, Your Honor.
THE COURT: Thornsberry, Ms. Thornsberry. I don't find it improper under the little broader 403 rules to say that she had Tim, Sr. when she was 12. I don't like all the minute details -- you know, she grew up in an orphanage, she came from a broken home. It sounds more proper and easier to present to the jury as opposed to she went to an orphanage at age three. She was, you know, beaten and abused and picked on by the other kids. All the details of that is -- I guess, use a broader brush rather than a detailed brush. But that she had a child at age 12 and it was Tim, Sr. and that there was emotional, physical abuse and sexual abuse in her past. And the details of that, we won't go into. Something along those lines, to me, is pliable for mitigation purposes as opposed to she was tortured and put in a bathtub by Montaine and that he would keep her in there in cold water. I mean, too much details is too much details. And the jury, I don't think, needs all the details of her childhood, but the fact that she had Tim, Sr. at age 12, I think, is probative and not undue prejudicial to the State. I'm not exactly sure how to tell you or caution you on how to use the broader facts as opposed to the minute facts, but we can present some mitigating facts without becoming the Dr. Phil show. And that's what I don't want to do is Dr. Phil, how did that make you feel when you were beaten as a child or you were left on the orphanage steps. That's what I want to stay away from.
RICK HUBBARD: Your Honor, it sounds like a lot of what you're saying is anything that might be hearsay, that so and so said this, so and so said that. You're just saying if she says here is what I determined, I found that she was born on this date, had this issue on this date, blah, blah, blah as opposed to then the daddy said, the mother said.
THE COURT: Yes.
RICK HUBBARD: Does that help?
THE COURT: Yes, that helps. Give the facts. All the convictions and mental diagnoses, that stuff, I think that's fair game, is she just giving me a list and providing this family's been through a lot. There's been several suicides, three or four on one side and two on there. But we don't have to get into the details of each suicide. He was, you know -- can you go by that, Mr. Secor? Can you follow those? Put up some rails on the alley where you don't go in the gutter. Can you handle that?
CASEY SECOR: My honest answer is I don't know. And I'm not trying to be difficult. I just --
THE COURT: How about this, I'm going to allow you some latitude and if I say, you know, just move on, that means you've gotten too detailed.
CASEY SECOR: Okay.
THE COURT: I understand that way, because you've got eight volumes four inches thick. Look, there's so much there. And if you want to show those books, I have them over here, so be it. The jury doesn't need to go through eight books.
CASEY SECOR: No, sir. I mean, we will offer them into evidence, obviously, but I understand the jury may not read everything.
THE COURT: This lady has done a huge amount of research, talked to a lot of people and found out a lot of details.
CASEY SECOR: Yes, sir.
THE COURT: Ms. Thornsberry's rearing is amazing, but the trauma she experienced and every detail of that is not presentable here. Some of the broad dates that she was -- grew up in an orphanage and her step-dad fathered a child with her, that's a fact. That's --
CASEY SECOR: I feel like I just need to try to explain myself a little bit.
THE COURT: Okay.
CASEY SECOR: And I spent a lot of time last night thinking to myself and talking to other people on the Defense team about Your Honor's request to try to figure out a way to present it in a more, I guess -- and I'm not putting words in the Court's mouth, but in a more condensed or sanitized way. And, ultimately, the decision that I came to in my position as an advocate in this case is that for us to take a social history that is the end result of three years of work by Ms. Grey and a tremendous contribution from other Defense team members and people in this family bearing their soul to us about things that they are desperately trying to forget, I think that my preemptively condensing it or sanitizing it would be contrary to the spirit and purpose of the social history and would be contrary to my obligations to Tim in being a zealous advocate. And I understand Your Honor's desire not to turn this proceeding into an episode of Dr. Phil.
And I hate that show and I hate shows like that, but I think they're very popular for a reason is because people say, I can't believe that person lived through that. And that's sort of what is compelling. And so I'm not trying to dramatize it or put these people on display. I am trying to provide an unadulterated story to the jury. And the jurors are free themselves to determine what matters. And, frankly, the social history, there are some jurors that it might make them angry. It might make them more angry than they already are. My obligation to Tim in this phase is to provide as much information to this jury for them to decide, is there anything about him that is redeemable? Is there anything about his past that makes me consider mercy for him? And if his life has value to people, is it worth my mercy to those people to not kill him? So that's the purpose. And I don't mean to say that I was -- or I want the Court to know that I put a lot of thought into that and I felt like I couldn't preemptively sanitize it or condense it without violating my obligation to Tim. I will, of course, abide by whatever Your Honor tells me to do. I just need to be ordered to do so because, obviously --
THE COURT: I think I just did. I mean, I appreciate what you're saying, but I think I gave you some guidelines. If you get too detailed, I'm going to say let's move on.
CASEY SECOR: Okay.
THE COURT: And I'm going to say it in that tone of voice.
CASEY SECOR: Yes, sir.
THE COURT: Because I realize you've got a lot of facts there, some of them this jury need not here. And if they want to go watch Dr. Phil later, perhaps, this would be a good episode. But it's not a popularity, we're not -- certainly, we're being live streamed, but we're not working as an audition for Dr. Phil. We're trying a Capital case with five victims with Mr. Jones being accused. Okay?
RICK HUBBARD: One quick thing before the jury comes in. There is the eight notebooks. They say they're going to move them into evidence. We've never seen any of that information. We don't mind a Court's Exhibit or ID, but, obviously, I don't want to have to object in front of the jury on stuff I've never seen before, stuff we've never been provided. I think it's inappropriate.
BOYD YOUNG: Your Honor, we've turned all that information over to both the State and Dr. Frierson. Everything that's in those notebooks has been provided to the State and to Dr. Frierson.
RICK HUBBARD: Then it's like a report and notes. I've never laid eyes on it, but I would say, Judge, it's just like putting somebody's reports and notes in. I would object to that. She's here and she can testify live. They can go through whatever they want to go through in front of the jury, but I don't want to have to object in front of the jury.
THE COURT: I don't think the notebooks as a whole need to come into evidence. I think we can make them a Court's Exhibit, but if she pulls out one page and says this report was given to me and they want that marked, sure. But eight notebooks four inches thick, no chance. There's got to be too much hearsay in there for me not to miss some of it.
CASEY SECOR: Well, yeah, of course. We have tons of records in there that would include statement by other people, but, obviously, Ms. Grey as an expert can rely on that.
THE COURT: Right. Right. She can rely on it, but it need not come into evidence for the jury to start thumbing through it. We'll have the same issue we had with that CD that had all the computer records that weren't testified to and, what in the world is all that stuff. There may be some really bad stuff we don't want the jury to see. There's no way in the world we can finish this case by the end of the year if we have to go through those eight notebooks. It took her three years. We're not going to do that. So if she wants to testify to certain parts of it, sure, but the eight notebooks aren't coming in. That's too much for us to sort through today.
CASEY SECOR: I will offer them just because I have to, but I understand that the Court will deny it.
THE COURT: Well, some part of it -- I'm not preempting you from doing some part, but eight notebooks?
RICK HUBBARD: If he could just say subject to the Court's ruling and refer to them. My whole point is I don't think I need to have -- be compelled to object in front of the jury.
THE COURT: I agree. So I think we've addressed that. Subject to the Court's ruling will be the way you can offer them.
COURT REPORTER: Judge, I've got them already in as ID Defendant's 353 through 360.
THE COURT: I remember we numbered them. It's three -- there's eight of them. We numbered them yesterday.
CASEY SECOR: Yes, sir, 353 through 360.
THE COURT: 353 through 360.
CASEY SECOR: With the Court's permission, I'd just like to make an objection regarding the Court's ruling on the social history testimony, if I may?
THE COURT: I thought you just did.
CASEY SECOR: Well, I feel I just need to preserve the record with the arguments that I made yesterday.
THE COURT: But you did. I mean, you've done that.
CASEY SECOR: Okay. Well, the argument that I made yesterday stands for today.
THE COURT: Sure. Because, I mean, I kind of took it under advisement and issued my ruling today. I think your record is now complete that I've now made my ruling.
CASEY SECOR: Okay. The only question I have -- I'm not trying to belabor the point, but if the Court tells me to move on, I will have an objection to that, obviously.
THE COURT: At the end.
CASEY SECOR: So every time you tell me to move on, you accept that as an objection and response from me?
THE COURT: Sure.
CASEY SECOR: Okay.
THE COURT: Sure.
CASEY SECOR: And I'm not trying to be difficult, I just need to make sure --
THE COURT: You've got a lot to get through.
CASEY SECOR: Yes, sir.
THE COURT: So, just, we'll do our best.
CASEY SECOR: Yes, sir.
THE COURT: Okay. We ready?
RICK HUBBARD: Yes, sir.
CASEY SECOR: I believe so, yes, sir.
THE COURT: All right. Give me the jury. (Whereupon, the jury came into open court at approximately 10:45 a.m.)
THE COURT: Welcome back. I hope everything was good yesterday evening. Anybody got any issues we need to discuss? Anybody contact you, make any comments?
(WHEREUPON, jurors responded in the negative.)
THE COURT: All right. We got started this morning about 8:30, worked on some issues trying to make things more efficiently. I wanted to tell you, we didn't show up at quarter till 10:00. I had y'all come in at 10:00, sorry for the 45-minute delay, but we've been working since 8:30 trying to get things done. And I think you'll understand why. The next witness did a lot of work and as we go, I may tell them to move on. That's part of what we did this morning. I've heard more, but there's a lot. When they call the witness, you'll understand. Thank y'all for y'all's patience. Mr. Secor.
CASEY SECOR: Thank you, sir. The Defense calls Deborah Grey.