1.Deborah Grey — Cross/Redirect (Part 2)
370 linesJune 12, 2019.
THE COURT: Let's bring the jury in. (Whereupon, the jury came into open court at approximately 9:00 a.m.)
THE COURT: All right. I got a note this morning. I'll read it. It's news for y'all. I'm told, the lawyers all agree, we're going to finish testimony today. We're going to do the summaries and instructions tomorrow. So we'll be done by the weekend. We'll start deliberating for the weekend. I wanted y'all to know that because now we can see the light at the end of the tunnel. So with that in mind, Doctor, you're still under oath. Solicitor, your witness.
RICK HUBBARD: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. HUBBARD:
RICK HUBBARD: Ms. Grey, I"m going to be real short. How much you getting paid?
DEBORAH GREY: $125 an hour.
RICK HUBBARD: And how many hours?
DEBORAH GREY: The last time that I invoiced, I was about 500 hours.
RICK HUBBARD: All the work you've done has been to assist the Defense experts, their psychiatrists, their other experts in forming their opinions?
DEBORAH GREY: I was asked to complete a psychosocial history and it was for the Defense team to decide who they would pass it on to.
RICK HUBBARD: But, of course, psychiatrists, as you know in your experience, they rely on the type of work you do?
DEBORAH GREY: Yes, they do.
RICK HUBBARD: Now, let's talk about his childhood, Mr. Jones' childhood. All the work you did finding this unstable home life, he excelled in school?
DEBORAH GREY: Yes, he did.
RICK HUBBARD: There's no evidence that home life was so bad that he felt compelled at any time to drop out of school like his daddy?
DEBORAH GREY: That's right.
RICK HUBBARD: Or like his grandmother, or mother, Roberta?
DEBORAH GREY: She was taken out of school, but, yes.
RICK HUBBARD: That never happened to him?
DEBORAH GREY: It did not.
RICK HUBBARD: He did well?
DEBORAH GREY: He did.
RICK HUBBARD: Did you talk to his teachers?
DEBORAH GREY: I did not.
RICK HUBBARD: That would have been a good clue as to how life was for him, wouldn't it?
DEBORAH GREY: I did talk with one of his substitute teachers, who was also a neighbor, and she talked about seeing him at the school. She saw him as a loner, saw him as not having friends. And she knew some of his other teachers.
RICK HUBBARD: A substitute teacher?
DEBORAH GREY: Yes.
RICK HUBBARD: No evidence he's come to school late?
DEBORAH GREY: No.
RICK HUBBARD: No evidence that he is missing long time -- long periods of school?
DEBORAH GREY: There were some periods of lengthy absences related to medical illness. And then his final year when he didn't do very well, he had several absences.
RICK HUBBARD: That's his choices there?
DEBORAH GREY: Not the medical absences.
RICK HUBBARD: Not the medical call. His dad, his family made sure he got to school?
DEBORAH GREY: He got to school, yes.
RICK HUBBARD: There's no evidence he ever came to school with bruises from that violent home life he was living in? No bruises on his face or his arms?
DEBORAH GREY: The substitute, who gave him rides to school, noticed bruising on him and asked him where it came from and he said his father.
RICK HUBBARD: And he also told you, Tim, Jr. told you that never happened, he was never physically abused by his father, correct?
DEBORAH GREY: That is what he told me, yes.
RICK HUBBARD: His father took the stand and under oath said he never abused his son?
DEBORAH GREY: Correct.
RICK HUBBARD: No other family member, no other witness, but this substitute teacher said anything about him being abused at home?
DEBORAH GREY: Correct.
RICK HUBBARD: There is no police report. All the times the police were out there, they never showed up and said my God, this child has got bruises?
DEBORAH GREY: That's right.
RICK HUBBARD: DSS, child protective services never had to intervene in this family with Tim Jones, Jr.?
DEBORAH GREY: Correct.
RICK HUBBARD: So there's no pattern that developed of physical abuse towards him as a child?
DEBORAH GREY: There was not physical abuse towards him in his home.
RICK HUBBARD: His mommy issues, the abandonment thoughts that he had, you ended up concluding, intellectually, he understood his mom, Cynthia, never left him, that she was mentally ill?
DEBORAH GREY: Eventually, he came to that point, yes.
RICK HUBBARD: She is so ill right now, she is institutionalized and she's not even allowed to leave that institution even with a guardian, is she?
DEBORAH GREY: I think she can leave during the day. She's in a group home living situation. It would be very difficult for her to leave town, I believe.
RICK HUBBARD: Were you aware they would not let her come here?
DEBORAH GREY: Okay. Yes, I was aware of that.
RICK HUBBARD: That's how sick she is, right?
DEBORAH GREY: Correct, she's a very sick lady.
RICK HUBBARD: He knows intellectually his mom never abandoned him? It was illness.
DEBORAH GREY: Intellectually, yes.
RICK HUBBARD: He also knows intellectually, his mother was absolutely incapable of caring for him?
DEBORAH GREY: There came a time when he was intellectually aware of that, yes.
RICK HUBBARD: Even knowing that, he still chooses to view his history, his life as one of abandonment, beginning with his mom, she left me?
DEBORAH GREY: I don't see that as a choice.
RICK HUBBARD: Well, ma'am, you just said he understands it?
DEBORAH GREY: He does.
RICK HUBBARD: All right. His dad never told him your mother doesn't love you?
DEBORAH GREY: Correct.
RICK HUBBARD: His dad never told him your momma left you?
DEBORAH GREY: Correct.
RICK HUBBARD: His dad never, ever belittled his mother in front of him?
DEBORAH GREY: The family talked about how she was crazy.
RICK HUBBARD: She was sick.
DEBORAH GREY: They talked about how she was crazy.
RICK HUBBARD: And that's their way of talking about how she was sick?
DEBORAH GREY: That's correct.
RICK HUBBARD: But are you aware Tim Jones, Jr. talked to his kids and told them your mommy doesn't love you?
DEBORAH GREY: I am, yes.
RICK HUBBARD: That your momma's never coming back?
DEBORAH GREY: Correct.
RICK HUBBARD: She wants nothing to do with you?
DEBORAH GREY: Yes.
RICK HUBBARD: He didn't experience that growing up, did he?
DEBORAH GREY: Not that I know of.
RICK HUBBARD: And you've done a lot to find out whether that happened?
DEBORAH GREY: I have.
RICK HUBBARD: Let's talk about his imaginary friend. He told you -- and at this point he's incarcerated, waiting for this trial?
DEBORAH GREY: Correct.
RICK HUBBARD: That's when you got to see him and meet him. He tells you, when I was about ten years old, I developed an imaginary friend. And I think you said -- or you have him saying, I knew I was talking to myself, it felt real, but I knew it wasn't real. Does that sound right?
DEBORAH GREY: It does.
RICK HUBBARD: And he said he kept this imaginary friend through adolescence on into adulthood because it gave him a sense of comfort and peace to be able to talk to the imaginary friend?
DEBORAH GREY: I'm not sure whether he intentionally kept it or whether it was there. I can't comment on that.
RICK HUBBARD: Well, you wouldn't know, right?
DEBORAH GREY: I don't know.
RICK HUBBARD: But he never told anyone prior to being arrested for murdering his five kids, he never told anyone prior to that, prior to being in jail I have an imaginary friend, right?
DEBORAH GREY: He never used those words that I know of, no.
RICK HUBBARD: But we do know in May of 2014, before he ever killed his kids, that he was concerned for his daughter, Merah, because she had an imaginary friend. We know that, correct?
DEBORAH GREY: Correct.
RICK HUBBARD: We know he was so concerned, he started looking up on the internet signs of schizophrenia?
DEBORAH GREY: Correct.
RICK HUBBARD: We know he texted his ex-wife, Amber, hey, we got to talk, something's wrong with her, correct?
DEBORAH GREY: Correct.
RICK HUBBARD: So before these murders, in his mind, imaginary friend equates to schizophrenia and now he's arrested and he's talking about an imaginary friend he's never talked about before, right?
DEBORAH GREY: He did start talking about an imaginary friend.
RICK HUBBARD: All of it self-reported?
DEBORAH GREY: Correct.
RICK HUBBARD: It's self-report when he talks about a voice that's not the imaginary friend, this mean, gravelly voice, that threatening voice?
DEBORAH GREY: Correct.
RICK HUBBARD: He hadn't told anybody before he got arrested, right?
DEBORAH GREY: Not to the best of my knowledge.
RICK HUBBARD: He didn't tell anybody about allegedly being sexually assaulted when he was 14 or so by a neighbor?
DEBORAH GREY: Not to the best of my knowledge.
RICK HUBBARD: Do you believe he's a reliable historian?
DEBORAH GREY: One of the things I mentioned earlier was how I tried to corroborate information from various sources. And there are some times that I cannot corroborate information from other sources. And you just mentioned a couple of those times. Is he reliable about that? I can't say. All I can say is what he told me.
RICK HUBBARD: Right. And those are pretty significant things he told you?
DEBORAH GREY: They are.
RICK HUBBARD: You talked about a monster. We heard that or saw that on the board yesterday. Something about the monster was this voice that he described to Dr. Hames?
DEBORAH GREY: Correct.
RICK HUBBARD: Were you aware Dr. Hames sat in that same chair and said that monster had nothing to do with voices? That monster was and always was just his indication of jealousy with his wife?
DEBORAH GREY: I'm aware she said that, yes.
RICK HUBBARD: You chose not to believe her?
DEBORAH GREY: I reported what he told me. I also reported in my social history what Dr. Hames said.
RICK HUBBARD: But it's interesting yesterday, you didn't mention what she said, you just mentioned what he said?
DEBORAH GREY: The jury has heard what she said.
RICK HUBBARD: So you had to give a counterpoint.
DEBORAH GREY: Excuse me?
RICK HUBBARD: You didn't mention anything about what the doctor concluded?
DEBORAH GREY: I did not.
RICK HUBBARD: Okay. Did -- since we're talking about imaginary friends, did he ever mention anything about being tripolar?
DEBORAH GREY: Tripolar?
RICK HUBBARD: Tripolar.
DEBORAH GREY: I have not heard that word.
RICK HUBBARD: Neither have I, that's why I was asking you. September 18th, 2014, he's newly in SCDC, he tells Dr. Wood, I'm tripolar. I have three personalities. That doesn't ring a bell?
DEBORAH GREY: I didn't review any records after the time of his arrest, so.
RICK HUBBARD: Well, he made some pretty interesting statements, so I just -- let me run this by and see if anything jogs a memory in all your conversations.
CASEY SECOR: Objection. May we approach? (WHEREUPON, a bench conference was held as stated below.
CASEY SECOR: She is being cross-examined, the witness, on documents which specifically she has no knowledge of. She has never reviewed them. If they want to provide her the records she can review them all. That's fine.
THE COURT: He can ask her, if she doesn't know she doesn't know.
CASEY SECOR: It is improper impeachment, it is intended to embarrass and harass the witness and it is information that she has never heard before. It is absolutely improper. She just said her evaluation ended as is appropriate at the time of the crime. That is all there is to it.
RICK HUBBARD: I want to see if it dovetails with imaginary friendly voice.
CASEY SECOR: She can review on the records. You have to give her an opportunity to do so.
THE COURT: No, he can ask her the question. If she doesn't know that is when it stops.)
BY MR. HUBBARD:
RICK HUBBARD: This tripolar, three personalities, just to see if it dovetails with anything you've heard about an imaginary friend or voice. Number one, the top of the triangle of these personalities, he described as the all truistic caring self. Did he ever talk about that?
DEBORAH GREY: No.
RICK HUBBARD: Number two and --
CASEY SECOR: She's already said she doesn't know.
RICK HUBBARD: Number two --
THE COURT: Let him ask the question. You can't object before he ask the question.
CASEY SECOR: He's going through a series of questions from the same report, how can she know the second one if she doesn't know the first?
THE COURT: I got your objection. Let him ask the question.
RICK HUBBARD: In talking about an imaginary friend or voice, did any of it mention as what he described earlier as number two, a judgmental or manipulative side?
DEBORAH GREY: No.
RICK HUBBARD: And then the third personality he talked about with Dr. Wood, I want to see if there's any correlation to what you heard from him when he's talking about the voice or his imaginary friend, where he talks about -- number three is the voice that wants him to do harm to others and that he's triggered quickly. Does he say anything about that?
DEBORAH GREY: Not except for the voice that he heard when he was around ten that told him to kill himself.
RICK HUBBARD: So that's the only time he talked about it?
DEBORAH GREY: I didn't talk with Mr. Jones about the time of the crime, the evening of the crime or anything that happened after that day. So anything that he may have told other people, those aren't things that he's told me.
RICK HUBBARD: Did he ever tell you or complain to you about the fact that while he was in jail waiting -- and that's when you got to meet him, when he was waiting for this trial, that he was upset that people outside were giving his ex-wife a pity party, but they're looking at him like a monster?
DEBORAH GREY: I don't think that I heard that, no.
RICK HUBBARD: Now, I've got to ask you something that just -- it just struck me because it's in your report, Page 10, and I want to know where this comes from. You have Cynthia reporting that she married Tim, Sr. at the age of 18, not knowing that her mother-in-law, Roberta Thornsberry, ran a prostitution ring. And she said after her son, Tim, Jr., was born, her husband encouraged her to prostitute and her mother-in-law became her employer. What's the source of all that?
DEBORAH GREY: Hutchings Psychiatric Center.
RICK HUBBARD: So you didn't get it from Cynthia because she's, obviously, not reliable at this stage?
DEBORAH GREY: No. It came from her Hutchings Psychiatric records on Page 4050.
RICK HUBBARD: Okay. Do you know when she made that or when that was?
DEBORAH GREY: It was in 1995 --
RICK HUBBARD: So it was a good long while ago.
DEBORAH GREY: -- that she said that.
RICK HUBBARD: Well, the reason why I asked it is because on Page 4, you talk about when Roberta Thornsberry married Phillip Caliendo, 1976?
DEBORAH GREY: Correct.
RICK HUBBARD: And that Phillip and his Uncle Vedo, were involved in organized crime?
DEBORAH GREY: Correct.
RICK HUBBARD: In fact, he's prosecuted by the feds for racketeering, for running prostitution rings in Chicago?
DEBORAH GREY: Correct.
RICK HUBBARD: And that investigation went from like '78 to '82 or so?
DEBORAH GREY: I think it was after the time that he and Roberta were together, but, yes.
RICK HUBBARD: But he was running those rings even then?
DEBORAH GREY: I don't know that. I know he was investigated subsequently to that and included that in my report.
RICK HUBBARD: And he got six years for running prostitution rings?
DEBORAH GREY: He did get some time, yes.
RICK HUBBARD: We would call that trafficking today, wouldn't we?
DEBORAH GREY: Prostitution rings? In some instances, yes.
RICK HUBBARD: Did you follow up with anybody to determine if Ms. Thornsberry had any knowledge?
DEBORAH GREY: I talked with Ms. Thornsberry about her father/husband and having prostituted her. I did not talk with her about prostitution subsequent to that. I did talk with Cynthia about it.
RICK HUBBARD: Well, this would be really important because on the one hand, you have information Ms. Roberta Thornsberry was a victim. But now there's some insinuation or an accusation that she was actually assisting in running a prostitution ring. So let me ask you, did you talk to any federal investigators or federal prosecutors to see who might have been involved besides just Mr. Caliendo and his Uncle Vedo?
DEBORAH GREY: I did research the legal documents related to that case and I could find no mention of her.
RICK HUBBARD: You didn't talk to any law enforcement?
DEBORAH GREY: No, I didn't.
RICK HUBBARD: And you didn't talk to any law enforcement in this case to see how Mr. Jones appeared at or about the time of this crime?
DEBORAH GREY: I wasn't researching things at the time of the crime and after. I did read police reports that were written about virtually every witness that I could find who had known him prior to that time. I reviewed about 35 law enforcement statements for that.
RICK HUBBARD: But you never called them and talked to them to see if there's something more to the statement?
DEBORAH GREY: No, sir, I didn't.
RICK HUBBARD: Did you talk to any of the teachers of these children?
DEBORAH GREY: My understanding was they were not willing to talk with us, with me. So I reviewed their statements to law enforcement, both proximate to this trial and also from previous and I incorporated those into my social history.
RICK HUBBARD: Did you ever try to reach out to any of them, Ms. Houck, the principal, or Janet Ricard, the vice-principal, did you ever reach out --
CASEY SECOR: Asked and answered.
THE COURT: No, it has not been answered.
CASEY SECOR: He asked if she ever reached out to the teachers and she said her understanding --
THE COURT: No, no, no, no, that wasn't the question. He can ask that. That wasn't the first question. She said that in her response, but he didn't ask if she'd reached out.
DEBORAH GREY: My experience, historically, has been when I've tried to interview teachers that it has to be arranged through the attorneys. And I asked whether that was something that was possible and was told that the school department wasn't interested in doing that.
RICK HUBBARD: Told by Mr. Jones' attorneys that?
DEBORAH GREY: Yes.
RICK HUBBARD: Okay. Well, let's talk about pattern of choices, both good and bad. Tim Jones, Jr. chose to go to school, stay in school and apply himself in school?
DEBORAH GREY: Yes, he did.
RICK HUBBARD: He chose to get a degree and go on to college and get a degree there?
DEBORAH GREY: Yes.
RICK HUBBARD: No one in his family had ever done it?
DEBORAH GREY: Correct.
RICK HUBBARD: That was his willpower and his choice?
DEBORAH GREY: Correct.
RICK HUBBARD: He got married, chose to have children. Those were his choices?
DEBORAH GREY: Yes.
RICK HUBBARD: In and of itself, that's fine. It did bring him stability, that choice did. He controlled them, but he never drank, smoked, did drugs that entire period he was married, correct?
DEBORAH GREY: That is correct.
RICK HUBBARD: So he chose to stay sober during that period of time, almost nine years?
DEBORAH GREY: He did.
RICK HUBBARD: And when that marriage fell apart, he chose to reach out and get help. He went to Dr. Hames?
DEBORAH GREY: Correct.
RICK HUBBARD: He went multiple times to get counseling?
DEBORAH GREY: Correct.
RICK HUBBARD: He chose to get help for his kids?
DEBORAH GREY: Yes.
RICK HUBBARD: But he also chose not to take medication that would help him with his anxiety and depression going through that divorce?
DEBORAH GREY: That's correct. He was prescribed medication. I'm not clear whether he ever took it.
RICK HUBBARD: It was his choice whether to take it or not and he didn't, right?
DEBORAH GREY: It was.
RICK HUBBARD: He chose to start self-medicating with illegal drugs and with spice?
DEBORAH GREY: He did, yes.
RICK HUBBARD: He chose not to talk to his own father for one year and eight months?
DEBORAH GREY: That's correct.
RICK HUBBARD: He chose to wait for his father to come to him before he went to his father?
DEBORAH GREY: Correct.
RICK HUBBARD: And with all his troubles, he chose not to turn to his family, who had always been there for him?
DEBORAH GREY: Correct.
RICK HUBBARD: He chose to hang onto his children when that family could have helped him?
DEBORAH GREY: Correct.
RICK HUBBARD: He chose to inflict a lifetime of pain on his own family?
DEBORAH GREY: Through his actions, his family is in a lifetime of pain, correct.
RICK HUBBARD: A lot of people are by his choices?
DEBORAH GREY: A lot of people are.
RICK HUBBARD: He chose to ignore the pleas for mercy from his own children as he strangled them?
DEBORAH GREY: That was not part of my investigation.
RICK HUBBARD: But, clearly, he made that choice? Yes, ma'am?
DEBORAH GREY: That was not a part of my investigation. I haven't talked to him about that.
RICK HUBBARD: And, clearly, he chose to murder his five babies?
DEBORAH GREY: He did, yes.
RICK HUBBARD: That's the only pattern I needed to talk to you about. Thank you.
THE COURT: Mr. Secor.
REDIRECT EXAMINATION BY MR. SECOR:
CASEY SECOR: Ms. Grey, how old was Roberta when she started being sexually molested by her stepfather?
DEBORAH GREY: She was around seven or eight years old.
CASEY SECOR: And that continued for how long?
DEBORAH GREY: Continued until the time she was able to get away from him at age 17.
CASEY SECOR: And how many children had she fathered by him at that point?
DEBORAH GREY: She had three children by her stepfather.
CASEY SECOR: And the terror that he inflicted in her life continued after she was able to get away from him?
RICK HUBBARD: Your Honor, object, beyond the scope.
THE COURT: The last question, I believe, does go beyond the scope, so rephrase.
CASEY SECOR: Can we approach?
THE COURT: Yes. (Whereupon, a bench conference was held in the presence of the jury but out of the hearing of the jury.)
CASEY SECOR: The pattern of abuse of Roberta as a child, did that continue into her life later on?
DEBORAH GREY: It continued, yes, all the way through her adolescence into young adulthood.
CASEY SECOR: And then did other people in her family suffer as a consequence of that abuse of Roberta?
DEBORAH GREY: Yes, they did.
CASEY SECOR: Is that unfortunate pattern something that you see in your work?
DEBORAH GREY: Yes, it is. It's something that can be intergenerational. And that's one of the issues that we looked at in the genogram that we had up the other day was how some of these patterns have been passed down through the generations in this family.
CASEY SECOR: Does this family, in terms of the time that you've spent with them, do they -- do they define abuse in the way that you would as a social worker?
RICK HUBBARD: Your Honor, I object. This is going way beyond, way beyond the scope.
CASEY SECOR: It's specifically on point on the question of --
THE COURT: I'll let her answer.
RICK HUBBARD: Thank you, Your Honor.
DEBORAH GREY: It does, yes. They do not define abuse the same way that we do -- that I do.
CASEY SECOR: And what's different about the way that they view it?
DEBORAH GREY: I asked one of the brothers, for example, about growing up in this household. And what he said first was, I have nothing but happy memories. And then he talked about grandma trying to shoot grandpa --
RICK HUBBARD: Your Honor, I have to object to hearsay at this point. I didn't talk anything about brothers.
CASEY SECOR: It's an example of how she knows what she knows.
THE COURT: I'm going to allow the answer. But we've got to tie this together real quick. It's getting on the edge of the relevance. A He talked about various things that had happened in the household that involved a lot of violence and threats. And that would constitute a form of abuse to a social worker, but in this family, they did not.
CASEY SECOR: Thank you, ma'am.
RICK HUBBARD: No further questions.
THE COURT: You may step down.
BOYD YOUNG: Your Honor, at this time, the Defense request to publish the video of Cynthia Turner.
RICK HUBBARD: Your Honor has already ruled on that unless there's a hearing that I missed, I may have stepped out. We object to relevance.
THE COURT: I thought we had already dealt with that.
BOYD YOUNG: I thought we dealt with it in the -- as relevant to the prior --
THE COURT: Y'all step in the jury room.
(WHEREUPON, the jury was excused from open court.)
THE COURT: I thought that video was ruled off limits.
BOYD YOUNG: I understood it was ruled to be by the Court over our objection to not be relevant to the determination of not guilty by reason of insanity or guilty but mentally ill. This is penalty. It is relevant to Tim's state of mind and whether or not he has mental illness and it's mitigating.
THE COURT: She didn't know how many children he had.
BOYD YOUNG: Right.
THE COURT: How is that relevant to his state of mind looking at her? Everybody said she's horribly mentally ill, institutionalized. I mean, nobody has challenged that. How is that relevant to what's going on in this trial seeing the condition she's in in that interview?
BOYD YOUNG: The jury's left with the impression that she's just tied up in a straightjacket drooling on herself. That's not what severe mental illness looks like. And we have a video that shows an accurate portrayal of what severe mental illness looks like. Not only what severe mental illness looks like, what Tim's mother looks like severely mentally ill. Everybody who has testified has talked about this strong genetic link between mental illness, especially where a parent has severe mental illness.
THE COURT: Right. Why is that relevant to mitigating factors for him in this case? I don't understand it.
BOYD YOUNG: It's his mother's condition. It's his mother. It is relevant to him in mitigation.
THE COURT: How? She's in a terrible state. How is that interview of her talking about -- the things she talked about, as I remember, were very general. Can y'all sit down? Quit moving around? A bunch of people have come in while you've been talking, Mr. Young. Not your fault. There was eight or ten people that came in against my desires. I don't understand the relevance of showing that video.
BOYD YOUNG: Judge, it's his mother, his mother who is diagnosed with schizophrenia, in which a number of other people have diagnosed Tim with, and what condition Tim could end up in. A lot of people say --
THE COURT: How has that got to do with --
BOYD YOUNG: It's his future.
THE COURT: Why didn't y'all ask -- I appreciate the heads up. I'm really frustrated you did it in front of the jury. I really appreciate that. Who has testified that Tim, Jr.'s condition is declining like his mother's?
BOYD YOUNG: Dr. Maddox.
THE COURT: She did not.
BOYD YOUNG: She testified that schizophrenia is a brain disease that gets worse.
THE COURT: No --
BOYD YOUNG: -- and that --
THE COURT: That is not what she testified to. She said there are three types. It either gets worse, or stays about the same or you don't have it. And he's maintained his condition, so. I assume that meant he was the -- he's maintaining.
BOYD YOUNG: I think she said that his condition has gotten worse over time. And she ordered neuropsych testing, that she saw the decline in functioning.
THE COURT: Solicitor?
RICK HUBBARD: Your Honor, I think it's not just relevance, it's 403. Even under a broader, more relaxed 403 in this case, there's been no contesting the mother's ill. She's institutionalized. No one has said she's in a straightjacket. The witness he put up just now said she's able to walk outside to go out for the day. She just isn't able to travel. Nobody is contesting this. I don't know what the probative value is because everybody has talked about the genetic link. You've let that in and that's fine. We haven't contested it. But what does this show? I think it just becomes extremely prejudicial. It inflames the passion saying look, here's mom, this is going to be Tim. And that's their element of approach, but it's inflammatory. Experts are the ones that make that call, not a video of mom and her very different life experiences. So I think it's just -- under 403, Judge, it falls.
BOYD YOUNG: Your Honor, how many cases out of Lexington County have to be reversed for excluding mitigation evidence before we let in what is -- it's his mother. This is his mother. To not allow the jury to see the short interview with his mother --
THE COURT: All right. What else you got coming down the pike after, what other surprises you got?
BOYD YOUNG: Several family members testifying. I believe that's it.
RICK HUBBARD: Your Honor, it might be a good time if we ask if there's any videos we haven't seen or maybe y'all provided them and we just make sure we watch them right now before the jury comes back in. Is there anything else we need to --
BOYD YOUNG: I gave them to up.
RICK HUBBARD: Okay. All right. Any photos or anything y'all might need to -- since they're out, Your Honor, maybe we just need to take care of that real quick.
THE COURT: Y'all take care of that. I'm going to step off for a minute.
CASEY SECOR: Your Honor, when you return, can I have permission to put my objection to the limitations on --
THE COURT: Put them on now.
CASEY SECOR: Yes, sir.
SHAWN GRAHAM: Judge, I don't know whether you want to address the Dickerson case that I passed up to you yesterday about asking family members what the effect of his death sentence would mean to them?
THE COURT: No, I don't want to address that right now. I want to hear Mr. Secor make his record of the limitations.
CASEY SECOR: Yes, sir. Thank you. I just want to point out that a great deal of information that we elicited or attempted to elicit through Ms. Grey, the social historian, this morning is information that we intended to elicit through lay witnesses, including Ms. Thornsberry and Timothy Jones, Sr. And Ms. Grey was able to get in some of the information that Tim, Sr. and Roberta were not allowed to get into, but still some of that very personal information was restricted by order of the Court subsequent to objections by the State. We would renew our objection on any limitation on social history as being a limitation on presentation of mitigation. Obviously, the definition of mitigation is extremely broad and includes anything that the State, I am sorry, anything that the Defense offers to the jury to support a sentence of less than death. A right to present mitigation is reiterated numerous times by the United States Supreme Court from Rompilla v. Beard, Wiggins v. Smith, Williams v. Taylor, Porter v. McCollum, Eddings versus Oklahoma and Abdul Kabir versus Quaterman. And that last case, Abdul Kabir versus Quarterman specifically talks about how juries not --
THE COURT: All right, that's an appellate argument now. You made a case cite. I don't need to hear what the case said.
CASEY SECOR: Okay. And the only reason I note that, Your Honor, is because you have to be able to give effect to it. And part of giving effect to it is I believe receiving it in an effective way.
THE COURT: And I gave you a lot of leeway with Dr. Grey.
CASEY SECOR: Well, respectfully, Your Honor --
THE COURT: If I gave the leeway you were asking for, we'd be here through next month.
CASEY SECOR: Your Honor, I just -- I'm not trying to argue with Your Honor, but part of the reason why Ms. Grey's testimony was lengthy was because we were unable to get that information out of lay witnesses originally. The idea is that a social historian does not tell the entire story for the very reason that you don't want somebody to testify on and on. And so, we attempted to present this information to the jury in an effective way and I believe the effectiveness was not as strong as it could have been because of the Court's ruling. And I do think at times when I was presenting the information, trying to present it as best I could to this jury that the State's objections and the Court instructed me to move on, I think the risk exist that the jury could have interpreted that as me having -- me doing something wrong because of the power of the Court in these cases. And that's a concern for me, that if the jury thinks that I'm doing something wrong because the Court has to keep telling me to move on that their assumption is that I'm somehow incompetent --
THE COURT: No. The Court and you and everybody laid out eight volumes four inches thick across that table and there were thousands of pages, 500 hours of her work. There was a reason for the moving on, not your competence, not your professionalism, not at all. It was explained and demonstrated there's a huge family history and we couldn't tell every minute detail of it. That was the reason for it. And I gave that instruction to the jury twice.
CASEY SECOR: Yes, sir, and I'm not saying that Your Honor was in any way intending to do that, I just -- I have to think about what is best from Tim's perspective. And I, obviously, have a strong concern that if anything happens, if the jury thinks that I'm somehow not trustworthy that that could affect what they decide.
THE COURT: You've made your record on that.
CASEY SECOR: And I would just cite the State vs. Davis, a 2006, South Carolina Court of Appeals for that proposition. Thank you.
RICK HUBBARD: Your Honor, you're in a unique position, unlike the Appellate Court, where you can actually watch the tenure of what's going on in the courtroom, including the jurors. And sometimes the longer a witness goes on, the more it actually undercuts the purpose. Your Honor, you limited my objections, which was fine. But this jury -- I think you've got to gauge how much is too much for this jury as well. That will never appear on an Appellate record, that's why you're here where you are managing the court time. And, Your Honor, it is just so happened, managed right to the end of the day and they didn't want anymore, they made that clear.
THE COURT: And the jury made a noticeable reaction when that second genogram was put up and Dr. Grey was going to read all the details of it. And I said, let's don't read all the details of it, and we read the criminal past. Very -- reaction that they had enough and they wanted to conclude.
RICK HUBBARD: Yes, sir. And that evidence is in should they want to go back and review it, whatever.
THE COURT: Sure. Sure. Sure.
RICK HUBBARD: Thank you, Your Honor.
THE COURT: All right. Let's take a couple minutes. Y'all look at the pictures.
RICK HUBBARD: We looked at them, Your Honor. We don't have any objection to what they've shown us.
(WHEREUPON, a short break was taken.)
THE COURT: All right. Mr. Young, let me hear you one more time on this video. Why is it relevant to the issue -- Mr. Jones' future medical treatment may be like his mother's, how is that relevant to what the jury has got to decide? Wouldn't his future medical problems be his own issue?
BOYD YOUNG: They have to decide about his future, whether or not he's allowed to live or be put to death. And they're entitled to know what that life could be like.
THE COURT: I just -- I do not believe that video -- I think it's inflammatory and prejudicial. The State can't cross-examine a video. When we had a earlier hearing, you said something to the effect the State could have gone to New York or wherever -- upstate New York somewhere, if I remember right.
BOYD YOUNG: We asked the State to participate either in person or offered them an opportunity to be present by a video link or submit questions that we would ask. They chose not to participate in any way.
RICK HUBBARD: Your Honor, we were during the jury selection at that time.
THE COURT: It was the middle -- first week in, I believe.
RICK HUBBARD: Yes, sir, it was. There were some other issues, too. She has diagnoses that have never been associated with Mr. Jones. So how much of what we're seeing is from schizophrenia, how much is from the dissociative disorder she has or these other disorders? How much is medication? We don't know. There's not an expert reviewing that saying here's what you're seeing. The jury would be left to speculate about what they're seeing and hearing. And that's why it's really -- under 403, it's just such a problem.
BOYD YOUNG: Your Honor issued a material witness warrant for her. We went to effect that warrant. We were told that we were not going to be allowed to have her transported pursuant to this Court's order. It was then ordered that her testimony be videotaped. We informed the State that's what we intended to do.
THE COURT: What's this probative of? Are you going to argue you saw Tim's mom in that video, that's what Tim's going to look like in five years? If you're going to argue that, then I think it's hugely awkward for everybody because we don't have any of her -- none of her doctors have testified here that treated her. Maybe it's on her medical records --
BOYD YOUNG: None of them have treated her, but they have viewed the video and talked about viewing the video. And there have been numerous witnesses that talked about the look that they see in Tim now is the look that they saw in Cynthia.
THE COURT: Nobody's contesting that, I don't think.
BOYD YOUNG: Except for the jury is not allowed to look at the look of Cynthia to see what it is they're talking about.
RICK HUBBARD: Again, that's my objection. We don't know what we're looking at. We don't know what -- how much medication and she's got those other disorders she's been diagnosed with that no one has said Mr. Jones has. So what are we looking at? No expert can walk us through it. The jury would be left to speculate. That's the last thing they need to do. And I wouldn't be able to probe it. So under 403, I think it's a train wreck.
BOYD YOUNG: Mitigation is any reason not to give death. The fact that his own mother couldn't come to his trial is likely a reason for a Juror not to give death.
THE COURT: How are you prevented from arguing that right now?
BOYD YOUNG: I'm not.
THE COURT: How are you prevented from arguing that right now?
BOYD YOUNG: I'm not.
THE COURT: All right. I'm not letting it in then. You talked me into it.
BOYD YOUNG: We object under State vs. Mercer and that relevant mitigation should be admitted and 403 shouldn't be used to exclude mitigation evidence.
THE COURT: It's a broader 403. That video was done late, it was done during jury selection. There's too many things that are unknown with her medical condition. And the State has not challenged whatsoever that she has severe mental challenges, issues, is institutionalized. All that's free game for you to argue that she couldn't come for those reasons. She was not allowed to come. So you are certainly welcome to argue that. I think it's inflammatory and I don't think that it's a proper video to be introduced in this phase of the case. So I'm not going to allow it.
BOYD YOUNG: Your Honor, I'd just incorporate all my arguments by reference to Court's number 90 for ID. (WHEREUPON, Court's Exhibit number 90 was marked for identification.)
THE COURT: All right. Are we ready for the next witness? I know, Mr. Graham, you want to have some sort of limitation on the questioning of the impact of the death sentence on the members of the Jones' family, whether they can plead for mercy.
SHAWN GRAHAM: Your Honor, my understanding after reading Dickerson, the Supreme Court says that a plea for mercy is appropriate. Actually asking about life without parole or a death sentence is not appropriate. And for sure, it clearly says that the Judge was correct in preventing a witness from testifying as to what the effect of an execution of the Defendant would have on themselves or other members of the family. It's inappropriate.
THE COURT: Y'all plan on asking that question?
BOYD YOUNG: No, sir.
THE COURT: No? Fair enough.
BOYD YOUNG: We haven't been asking that question. We specifically asked can you still have a relationship with him from prison, which is an appropriate question. Nobody has said, how's Tim's execution going to impact -- how is that going to impact.
THE COURT: Well, I know during Ms. Thornsberry's testimony, she did make the statement of my family has suffered enough, we've had enough loss, that kind of thing. I think that was the tenure of what Mr. Graham was objecting to preliminarily for these future witnesses. All right, he's not going to ask it. Bring in the jury. (Whereupon, the jury came into open court at approximately 10:00 a.m.)
THE COURT: Call your witness.
CASEY SECOR: Thank you, Your Honor. The Defense calls Julie Jones.