3.Renewed Objection to Autopsy Photographs
12 linesROBERT MADSEN: Judge, I just wanted to renew our objection on the use of the autopsy photographs, which I believe are State's number 212 to 216. That despite the State's argument, we know that Dr. Ross did not need the photographs to corroborate or explain her opinions. The State simply had her introduce the photographs into evidence. Furthermore, the State published to the jury photographs of the bags and the contents from the scene. This caused a Juror to break down and the Court to have to take a recess. The State decided not to publish the photos knowing that the autopsy photographs are a hundred times worse. This effectively eliminated the ability to have an appellate review because the first time the jurors are going to see those photographs will be in the jury room and, obviously, no one is going to know their reaction back there. We believe that that was a conscious decision on the part of the State so that there was -- to deny Tim appellate review. The Solicitor's argument to look in the bags, look in the bags is basically an argument on the inflammatory nature of those and a recognition by the State of the inflammatory nature of 212 to 216. And it violates Tim's due process rights to a fair trial and cruel and unusual punishment under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.
RICK HUBBARD: Your Honor, of course, I did nothing inappropriate. This is about the most conservatively tried case involving photographs. The ones that I actually published in front of the jury were from the body recovery where you just get a glimpse into the bags. One alternate cried and she immediately recovered. She didn't throw up in the bathroom like was alleged. And then with the other ones, I handled those photos with respect. Your Honor ruled. They're appropriate. The color was actually less inflammatory than black and white and most of them, or a lot of them are duplicates of what the Defense tried to put in in the first phase.
THE COURT: I ruled on that.
RICK HUBBARD: Yes, sir.
THE COURT: I'm not going to change my ruling.
ROBERT MADSEN: Yes, sir, I understand. I just felt --
RICK HUBBARD: And so the record shows, I did not even open the bags up in front of the jury in closing.
THE COURT: You didn't.
RICK HUBBARD: Yes, sir.
ROBERT MADSEN: And that's part of my position.
THE COURT: The final instruction is coming y'all's way during the closing. All right. Bring in the jury. (Whereupon, the jury came into open court at approximately 11:10 a.m.)
THE COURT: All right. Ready to continue? It will be the opportunity for the Defense to summarize. Mr. Secor.