1.Jury Selection

THE COURT: Are y'all ready?

THE COURT: Number 24. (Whereupon, Juror 24, Kristiana McGill came into the courtroom.)

THE COURT: Good morning Ms. McGill.

THE COURT: My name is Eugene Griffith, I introduced myself to you on Monday and at that time we went through the initial bunch of questions, I sent y'all on your way and y'all took an oath to not talk about the case, not allow people to talk to you about the case and try to minimize your media review. Since your oath, only truthful answers, we are going to get on some other questions and some of those are opinions. There is really no right or wrong answers, truthful, candid, that is what I am looking for. Anybody try to contact you or talk to you about the case?

THE COURT: Did you talk to anybody about the case?

THE COURT: And the media reports, some things have been going on over the weekend, there is a lot of media contact, have you seen any of that?

THE COURT: Very well. Did you see any media before I put you under oath?

THE COURT: And so what I am trying to do, I want jurors to come in with no preconceived notions or biases, kind of open mind and open book and they are ready to listen to both sides and be fair to both sides. That is what I am looking for. If something you have seen or been involved with, read, whatever, heard on the news that has caused you to form an opinion I need to know about that. So is there anything like that?

THE COURT: You have heard some of the facts about the case, but haven't seen anything about the case. Because I gave you some facts when I read the indictments?

THE COURT: Okay. Fair enough. Now, any member, you or your immediate member of your family a member of any organizations like the advocates, victims rights like MADD Mothers, Students against Drunk Driving, Citizens Against Violent Crimes, groups such as that. Anybody a member of something like that?

THE COURT: You or a member of your immediate family contribute to the Troopers Association, Sheriffs Association, Law Enforcement Association?

THE COURT: I showed you when you came in this long list of potential witnesses. Both sides have to provide me potential witnesses. They are very likely not to call all of these but they have got to tell, we may call, here are our potential witnesses so everyone can be ready and know who they are. Particularly for a Juror I need to ask you, do you know any of them?

THE COURT: If you are selected on the jury and somebody comes forward and the face is, you recognize it, would you tell me at that time?

THE COURT: And I am a much more of a facial recognition person too, so you put the name and the face together you know them?

THE COURT: But you don't know any of the names here?

THE COURT: Firsthand. I am going to give you kind of a broad brush, it is not detailed, it is an overview of criminal procedure and a little bit of the criminal justice system. When a case is brought to trial by an indictment like this one has, a plain vanilla case, brought to trial by an indictment. An indictment is just a notice document, it is basically telling a person they are being accused of a crime and the particulars of that crime they are being accused of. It doesn't prove anything, it is just an allegation. This case has five of those indictments which are five allegations. A person who wants a jury trial pleads not guilty and they get a trial. The State has got to prove their case at trial to a proof called burden, I am sorry, beyond a reasonable doubt. But a person that is accused is presumed innocent all the way through the trial until the jury reaches a verdict, the presumption stays with them. The State has got to overcome that presumption with their burden beyond a reasonable doubt. Now, this case has that same process, it has a few extra facets to it that I want to go over with you that you may be not aware of. In a traditional case, armed robbery, murder, whatever, plain vanilla case the State makes the burden of proof, if they prove their case beyond a reasonable doubt then the sentence is imposed by the Judge. Now, this case is slightly different, it is a Capital case meaning the first part of the case, there are two phases, the guilt or innocence phase which the State has got to prove its case beyond a reasonable doubt. Then if the guilt is found then it goes to phase two which is the sentencing phase. So in a Capital case it can be a two step process. If guilt is not found, there is a not guilty verdict, the case is over, you don't go to phase two.

THE COURT: Everybody, the case ends right there. But if guilt is found you go to phase two and that is called the sentencing phase. Now, in a Capital case, what is different about it is, the jury determines the sentence. Okay?

THE COURT: Once it goes to sentencing phase and I am going to go back and kind of fill in some pieces, remember, this is a broad picture and you don't know many facts at all. But the jury determines the sentence and they have got two choices, life without parole, never get out or death. Those are the two choices in a Capital case. Now an additional requirement is that during the sentencing phase the State has to prove an aggravating factor and there are listed in the statutes, aggravating factors and I will give you a couple of them. For instance, multiple murders, killing of a police officer, rape of murder, kidnapping of murder, murder of children. Those are aggravating factors. A plain vanilla murder, somebody shoots somebody in a fight, not entitled to go for the death penalty, the State can't say I seek the death penalty on a, just a murder, it has got to have something aggravating. And the State has got to prove that aggravating factor beyond a reasonable doubt before the death penalty can be considered. Okay?

THE COURT: Yes. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)

THE COURT: The lawyers told me I forgot to tell you something that I didn't actually give. The accusation of murder, what the State has got to prove and I didn't get into that. Murder is defined in South Carolina as the killing of another person with malice aforethought. Malice is kind of defined by our laws as hatred, ill-will, hostility, depraved heart, a black heart is what malice is. The State has got to prove the killing of another with malice beyond a reasonable doubt in the guilt or innocence. Okay?

THE COURT: Then in the sentencing side, if the guilt is found of the murder we go to the sentencing portion, then that is when the aggravating factors has got to be proved. Okay. Now, you review the three types of jurors, the sheet I sent for you to review before you came in.

THE COURT: A type one Juror, I am going to presuppose the facts. Type one Juror is this. The State has proved the murder, they proved the murder, malice, the jury considers it beyond a reasonable doubt, the jury found unanimously guilty of murder. Then getting to the sentencing phase, the State proved the aggravating factor, whichever one it was, it doesn't matter. Assume the State proved the aggravating factor in this case. That type of Juror, well, the State proved its case beyond a reasonable doubt of the murders, the State proved the aggravating factor beyond a reasonable doubt of the aggravation, the appropriate punishment in those cases always is death, no matter the mitigation, no matter the other circumstances.

THE COURT: Type three?

THE COURT: Okay. So that means you don't have a preconceived notion, the murder is proven, aggravating circumstances, one sentence or the other is the only thing you are going to go for?

THE COURT: That is, you want to hear the rest?

THE COURT: Okay. Now, I should have asked you this upfront and this is another the lawyers and I talked about over there momentarily is, if you are selected as a Juror in this case, I am hopeful to have the jury, I am looking for qualified jurors and then we will go through that, eliminate some because they have reasons to excuse. I need about 45 or 50 qualified jurors to select one. If you are selected as a Juror, the case will last two weeks, not sure, depending on the number of witnesses they call. Do you have a preplanned vacation that is paid for, some personal obligation that you have already committed to that if being selected that would interfere with your plans.

THE COURT: Once you are done today it is going to be the middle of next week before I get done with the other jurors. If you are qualified, I would have y'all to check the internet when to come back in. I can't envision getting through the entire process by Wednesday. You will be able to go with them without any trouble before I may need you back in there. Other than that could you do it?

THE COURT: That is a good question.

THE COURT: I would say less people get paid then you think. So most of the time it is an inconvenience of the jurors, money wise and imposing on your time. The trial will be conducted during the daytime hours on the days. So if you work in the evenings and night, I can't tell you it is a final decision of mine. Ideally, right now is, much like the oath I put you under, I don't want anybody to talk to anybody about the case, I don't want you to talk to anybody about the case, I don't want you perusing media, social media, looking for facts, doing independent research. I want you to consider the case on what is presented in the courtroom, not outside.

THE COURT: Everybody is going to have that oath to do that and if you can live up to that oath then you can work in the evenings because we will probably be done with court at 5:30, 6:00 o'clock each day. If you could still work some like that, as long as you are willing to listen and keep an open mind, I think you will be okay with that. The main thing is, yes, sequestering is the word for when you get put up in a motel. My intent is not to do that but part of the bargain is jurors have to live up to their oath to the Court, we won't let anything influence us outside of the courtroom. That is probably the biggest thing the jurors have to focus on is listening but not gathering information outside the courtroom. That is the biggest agreement and oath we have to have. Does that answer your question?

THE COURT: Let me get back to what I was asking you questions on. In this case, let me describe to you, the State can't ask for or seek the death penalty unless they believe they can prove an aggravating factor.

THE COURT: The State has got to prove beyond a reasonable doubt. In this case the State has brought five indictments of murder against Mr. Jones, he is presumed innocent sitting right there and he will stay in that position, presumed innocent all the way through the trial until the jury reaches a verdict and decides one way or the other, guilty or not guilty. He has entered a plea of not guilty by reason of insanity and that adds yet another possibility of verdicts to the verdict form. Normally it is guilty, not guilty. When you enter a plea of not guilty by reason of insanity the verdict form changes a little bit, it gets bigger. Four potential verdicts should be presented to the jury, guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty at all. Four potential verdicts. I will instruct the jury, at the close of the evidence, okay, you are about to consider guilt or innocence, there is four choices. I just named them off to you. The law of South Carolina is, proof of murder, killing of another with malice, and thus and so. You are to consider the evidence that has been presented to you, your verdict must be unanimous, that type of thing. I give the instructions then. Do you know of any reason right now that you can't give meaningful consideration to each and every one of those four potential verdicts?

THE COURT: So you can give meaningful consideration to all of those potential verdicts?

THE COURT: That is what I am looking for, preconceived notions, maybe, maybe not, that is what I want to know about. A I just, I don't see the insanity all together.

THE COURT: You don't see the insanity thing?

THE COURT: And there is some confusion about guilty but mentally ill or not guilty by reason of insanity. And that is part of my job to try explain to you where those two areas fall. So you have got confusion about that too?

THE COURT: Well, that is part of my job to instruct the jury at that time. But could you, if explained properly under the law, I don't know how the testimony is going to go but there is going to be testimony about that from both sides for the jury to consider, can you give meaningful consideration about those issues, the mental issues, whatever they are regarding Mr. Jones, from whomever it comes from and understand the instructions, consider my instructions, the testimony you hear and give meaningful consideration to either of those two potential verdicts, actually there are four potential ones but I kind of narrow it down to the middle two. Could you do that?

THE COURT: See, that is part of the State's burden of proving its case, they have got to say, here is the story, this is what happened, they lay off, I am laying out bones for you, they are going to put meat on the bones. Likewise, the Defense team has that same responsibility to fill in these gaps for you too and explain what the insanity is and they have got to show you that. That is their job and those questions will be filled in with testimony and then my explanation on the law, then the jury decides where it falls. Can you give consideration to all of those factors?

THE COURT: Okay. Do you know of any personal, moral, religious belief that you may have which would prevent you from finding a verdict, considering the verdict for death in, I am sorry, the punishment, I am already past the guilt or innocence phase. You and I were just talking about guilt or innocence. That is the first phase, if a verdict of guilt is found then it goes to phase two. Presuming phase one is guilty, if it is not guilty the case is over with. Okay. Phase two when the jury decides a life or death. Do you have any reason, personal belief, moral belief, anything like that that would prevent you from finding the death penalty?

THE COURT: Do you have any personal or moral or religious belief that would prevent you from considering a life without parole sentence?

THE COURT: Now, you understand, in cases like this death penalty is not automatic, that is a common misconception. The State proves the murder, has to try to prove the aggravated assault, if they do then you would consider one of the two. One is not automatic, there are both on the table in sentencing. It is the jury's decision on that. Now, can you give meaningful consideration to all the testimony in the sentencing phase, all of the testimony, mitigating, aggravating evidence, affirmative defenses that they are presenting, defenses that are presented, can you give meaningful consideration to all of that, those factors, the law that I am going to instruct and consider all the testimony from where ever it comes and be fair and impartial in this case?

THE COURT: Now, I should have asked this up front too. This case involves the death of children and so the testimony is going to involve some graphic descriptions, there may be some photographs that may be graphic in nature and I think we characterized it with enough prior jurors, it may be very unpleasant to see, to hear. Would testimony of that type subject matter create an issue for you where you couldn't be fair and impartial to both sides. I am telling you, no one is, it has been unpleasant for everyone. We understand that. But is that going to create an issue for you hearing testimony and seeing evidence of that type of subject matter, would that make it difficult for you to be a Juror.

THE COURT: It is not going to be easy?

THE COURT: Notwithstanding that, can you still consider evidence and testimony of that type and be fair and impartial to both sides?

THE COURT: Okay. Fair enough. Do I need anything else?

THE COURT: Mr. Young, your witness.

THE COURT: I don't have any ideas yet but that may be a solution. We could figure that out.

THE COURT: -- y'all come up here. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)

THE COURT: This is kind of what I would instruct at the very end, after you hear all the testimony. Here is the definitions. I will start with not guilty by reason of insanity. A Defendant at the time of the commission of the act constituting the offense, the Defendant has the result of a mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong. I want to recognize that a particular act charged was morally or legally wrong. Now someone can be found guilty but mentally ill if at the time of the commission of the act he had the capacity to distinguish right from wrong, recognize his act as being wrong. But because of a mental disease he lacked the capacity sufficiently to conform his conduct to the law.

THE COURT: He is going to try to ask you another question.

THE COURT: The Judge makes the decision.

THE COURT: I am pretty comfortable this is a copout. I think that probably is where I would find it.

THE COURT: Yes. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)

THE COURT: Ms. McGill, we had a little sidebar conversation. I think that your opinions are yours and they are fine. That is what I want is candor. The verdict form is something I had to go over with you. And so I believe, based upon those, I am going to find you not qualified, I am not going to let you sit as a jure. That doesn't mean you are wrong. You just, other people have other similar views but if someone can't consider everything then that is what I am looking for. I had people yesterday, I can't consider that, I can't consider this and they are excused. And that is why I have a big pool. (Whereupon, Ms. McGill was excused from the courtroom.)

THE COURT: All right. She was clearly caught in the middle of understanding the mental issues and not certain she could distinguish between those. I think a copout was her characterization. Both sides had issues with her. I want to address two things. We are getting back into a Juror who says, what if we can't reach a decision then what happens. The appropriate response is, then the Court has to make a ruling on the law. How are we going to answer that.

THE COURT: How about this. How about we do this, if somebody asked that question again, then the Judge will give you further instructions on how to deal with that.

THE COURT: I know, I don't want that because I don't want them to go back there if we don't agree then it is on the Judge. I don't want them thinking that.

THE COURT: Slow down, you are really going fast for Joy.

THE COURT: Here is what I am going to do. If we get to that question again. We haven't had it until this witness. Now, Mr. Young went through it about four times with the individual moral judgment, then he went back through it again. This girl asked a lot of questions, she was a lot more engaged in talking back and forth, she took longer. But a person is entitled to individual moral judgment, I think y'all can speed it up by just giving two rather than three. Give just two, any reason. And a person is entitled to that. You can respect somebody else and they respect yours, that line of questioning you keep doing and it is okay if y'all have different reasons. You can agree to disagree and leave it there. That needs to stop there, but y'all giving three, it takes an extremely long time to get through all three. If the Juror ask the question again, what happens then, then the Judge will give you further instructions on the law then.

THE COURT: All right, I understand your argument. What helps me a lot and what you can do is say, Judge, I would think these three questions rather than giving me those broad things. I need some help with suggestions. I agree with you on both sides, y'all are both giving me the law but y'all are not giving me solutions.

THE COURT: I want solutions suggestions.

THE COURT: You are arguing, make a suggestion. I am not, write them down for me. I want some help, I am ready for a little break.

THE COURT: And I know it, the Defense has been asking, I have that in my head. I want an alternate suggestion that y'all want them to go to and I say okay or not. That is what I want.

THE COURT: I am not going to give that instruction, that is too much. And you are protected on the record but I am not going to go there.

THE COURT: It is there. We will stand down for a few minutes and come back.

THE COURT: Regarding the issue of how we are dealing with the individual moral judgment and that line of questioning, what suggestions have you, Solicitor?

THE COURT: Mr. Young.

THE COURT: All right. Here is what I am trying to do. I am trying to advance a little faster because y'all are going very slowly on 15, 16, 17 questions in your moral judgment. Can y'all streamline that a little bit because you were very, very lengthy that time, more so than other prior jurors.

THE COURT: I think when y'all go through and so you will have your own individual moral judgment perhaps and some will have theirs and another person will have theirs. You can respect theirs and they can respect yours. That is fine. That is what you are suppose to do.

THE COURT: Isn't that the same decision. If you find a mitigating factor you give life. That is your individual moral decision. You are distinguishing, why can't they be combined. You reach your decision on why you think somebody deserves to be punished to life or punished to death, that is your individual moral decision whether it is based on mitigating factors or nothing, the same thing.

THE COURT: You are almost confusing thinking, well, they have got to consider mitigating factors and they can consider whatever they want and then they have got to make a individual moral decision in addition to that and that is not so.

THE COURT: It is not confusing, you are making it more confusing by making, here is what is confusing about it. It is not wrong, it is just, mitigating factor is a reason to vote for life. And your moral judgment is the decision whether to vote for life or vote for death. And whatever your basis is, is what your basis is. The way you are describing is, there is more processes here, decisions they got to make and to reach and that is confusing to the Juror who doesn't really understand. For instance, I am certain some of these jurors don't know what mitigating means. But you say, can you think of a reason to vote for life, you got remorse. We all know that is a mitigating factor but in this juror's mind they don't define it, okay, I have got to list mitigating factors in my brain to not give the death penalty. That is legalese that we are using here in the courtroom and this Juror doesn't know what a mitigating factor is but they can recognize one when they hear it. I would feel sorry, sympathy, I would give life because of that, that is mitigating factors. Jurors don't characterize, normal people don't characterize, I have got a list of reasons why I give life and they don't. We are making them do that saying, hey, why are you here. Do you see what I am saying.

THE COURT: Considering everything.

THE COURT: I don't think you need to get there. I think you need to describe them together. And that would speed things up because it is the same question. Once you are in deliberation for the sentencing, potential Juror, you have got to make the decision whether they live or dies. And what is a mitigating factor or no reason whatsoever, once you reach that individual moral judgment that is what you are going to vote with, that is fine. Somebody may disagree with you, somebody may have a different reason from the reason they are going to vote the same way. That is okay too. Can you respect another person's reason for voting, whichever way they are going to vote.

THE COURT: You are making them identify as a mitigating factor or individual moral judgment decision, to me it is confusing to them.

THE COURT: You are not saying that at all.

THE COURT: No. You are giving the legalese, individual moral judgment and this and that. Y'all are doing a terrible job of that, all of you. And here is what is confusing. I have got a pretty lay on it and I don't want to lecture you but mitigating factors is presented throughout the entire trial. Aggravating factors are going to be presented throughout the trial. It is confusing to me to tell the jurors the State has got to prove the aggravating factor in the sentencing side, because they do, but it is impossible for the State to present this case without showing them both in the guilt or innocence. They have got to show them. That is confusing to a Juror saying, how are we going to find murder without, obviously they are both sides. The testimony throughout the whole thing is going to be considered by the jury because it is all interrelated facts, opinions, testimony, whatever.

THE COURT: Until we get to the penalty phase. So I think it is confusing for me to say, jury, the State has got to prove the aggravating factor in the sentencing phase. You prove it during the guilt or innocence, we know that but we are not telling them that.

THE COURT: I don't want to comment too much on that fact and that is my concern. I would love to say that but then I get caught up in the, commenting on the facts.

THE COURT: All right. I want y'all's understanding, this girl that we just had, she came in and I think that mental issue, somewhere along in there, a question after that, can we see that, was everybody pretty well on the same page and she was going to be difficult to deal with that, not to mention her observation of a murder and connected to another close friend that was a victim. She was problematic for a multitude of issues. I think she is very nice but that would be one, we could have stopped questioning her thirty minute before and all were in pretty well agreement.

THE COURT: That is what I am asking.

THE COURT: I am certain y'all have numbered all of your motions, it is in the record somewhere?

THE COURT: You filed over one-hundred and I don't have them up here, they are on my computer. But I have got enough to do rather than to look up and see what number it was.

THE COURT: I am glad you made the motion, I thought that was just something we did. Sometimes y'all make motions to do the obvious.

THE COURT: I am too.

THE COURT: How about that, Boyd, that does not sound unfair to me, once y'all get to the end of, you have got to reach your own decisions, that is question number one. And you have got to consider and respect the views of others. That is question two that was handed up. Are you going to be willing to do this and step in and stick by your decision.

THE COURT: No. I am asking if I limit you to those questions, in your own words.

THE COURT: But don't ask them four times.

THE COURT: When I give you the eye that is meaning you are getting close and I am going to stop you. Okay.

THE COURT: I know.

THE COURT: I got you on that, I think we are there. I have heard enough. I want you to stop when I say, stop. I understand your issues.

THE COURT: I am not saying, I don't want him to ask that, I am not saying he can't. I think it is creating problems but I am not going to say don't ask it until, if we get another like this and we get another question, I am going to stop it. Okay.

THE COURT: I feel like we are beating a dead horse, and y'all know when I get dead horses in courtrooms I get a little bit frustrated with everybody.

THE COURT: Juror 219.

THE COURT: Good morning, Mr. Jennings, how are you doing?

THE COURT: I am doing good. I introduced myself Monday, I said call back later, don't discuss the case, don't let anybody talk to you about the case. Have you followed my oath?

THE COURT: Followed the Juror oath that I asked you to follow?

THE COURT: Anyone try to talk to you about the case?

THE COURT: You talked to anybody about the case?

THE COURT: Have you perused any of the media articles or reports, have you seen any of that?

THE COURT: Have you seen any reports prior to coming in the courtroom Monday?

THE COURT: You are under oath to tell the truth. But there are some questions I am going to ask you and some of the questions that the lawyers is going to ask you is going to be kind of an opinion. Kind of like going for a football team, you are pulling for one or you like Chevrolet better than a Ford, that is an opinion. That is just what you do, not be a wrong answer. They have got to know a little more about you. Now, any member of your family or you a member of any organization which advocates the victims rights like MADD, Mother's Against Drunk Driving, Students against Drunk Driving, Citizens Against Violent Crimes, Bikers Against child Abuse, any victims advocacy groups. Are you a member of any of those?

THE COURT: You or your family?

THE COURT: A member of your immediate family or you contribute to any associations like the Law Enforcement Officers Association, Troopers Association, Sheriffs Association?

THE COURT: Now, are you connected to any of the lawyers in the courtroom?

THE COURT: A lot of them in here, about everybody. Never been involved with any of those lawyers?

THE COURT: You or a member of your immediate family connected in in way with the Jones' family?

THE COURT: I sent a long list of potential witnesses and I can tell you, not for certain but pretty well for certain, all of these witnesses will not be called for trial. But potentially they could be called. And the reason potential witnesses are put on the list is so that we can determine whether anybody has a connection that would create an issue for them not to be able to consider testimony from that person. It may be awkward like if your brother-n-law was a witness. Now, you don't like your brother-n-law and you think he is a liar that is a problem. But if you love your brother-n-law and believes anything he says, you have got to be disinterested from the witnesses to consider their testimony. Do you understand?

THE COURT: Do you know any of the witnesses?

THE COURT: Not a single one?

THE COURT: Fair enough. This case may take several weeks to get together. We are going through jury selection, we are close to the end of the first week. Likely it will be into next week before I get a number, enough qualified jurors to select a jury. So if you are qualified you are in a group that could be a Juror on the panel. Knowing this trial could go in close to June, maybe into June, do you have any personal obligations, trips planned, vacation, surgery, anything like that that may affect your ability to serve?

THE COURT: So you are able to go into June?

THE COURT: Okay. This case, the State has made allegations against Mr. Jones, he has plead not guilty by reason of insanity. I will go through some of the criminal procedures and criminal procedures and make some definitions for you to understand, there is a lot of misconception of the law because of different reasons. I am going to give you some brief instructions on the law and procedures so you will understand. But normally when the State brings the case, plain vanilla case, armed robbery, plain vanilla murder, they prove the killing of another person with malice aforethought. A pretty simple definition but it is a little more complicated. Malice means somebody got killed while the actor had hatred, ill-will, hostility, depraved heart in committing the act. That is what murder is. It is not an accident, you don't have a just cause or excuse for doing it, it is intentional, wicked heart, killing somebody. That is the definition of murder. The State has made that accusation with five indictments to Mr. Jones. He is presumed innocent right now, he sits right there.

THE COURT: And that presumption stays with him all the way through the trial until a jury reaches a verdict of guilty beyond a reasonable doubt unanimously. And they have got to prove those elements.

THE COURT: The State has also told him that we intend to seek the death penalty. And that adds an extra hurtle, burden upon the State to prove because a murder of one person or another doesn't entitle the State to seek the death penalty on every case, it has got to be an aggravating factor. Those are defined in the books behind you, there is a list of them. For instance, rape and a murder, kidnapping of a murder, killing of a police officer, killing children, killing of multiple victims. Those are perhaps aggravating factors. The State has got to prove at least one of those before they can say, we are seeking the death penalty. So they have got to the murder and aggravating factors. Now, also throughout the entire trial you hear testimony and facts throughout, the State has got to prove this, some places legally the process has got to prove that. But sometimes the testimony overlaps like children. You will hear about children on both sides of it and once you see and you know that children is a fact they want to keep reproving the children because they are children. Okay?

THE COURT: You may hear it. In a Capital case there are two phases to the trial. Phase one is just guilt or innocence. Did he commit the murders. Phase two, sentencing. So phase one is a not guilty verdict or not guilty by reason of insanity the case stops, it is over. The State has failed to meet its burden. If the jury finds unanimously that the State has met its burden, proven the facts of murder beyond a reasonable doubt with malice the case goes to phase two. The jury then considers the punishment. In a Capital case the jury makes the decision on punishment. The Judge normally makes the decision on punishment in all the other cases.

THE COURT: Nothing in the middle. Okay?

THE COURT: The jury could find, the death penalty has got to be unanimous. Life without parole, the jury issues the sentence and they find unanimous life without parole that is the sentence that is carried out. The balance of life, they pass away, in jail locked down. The death penalty, the jury finds unanimous of that penalty, that penalty is carried out subject to the appeals and all of that. Do you understand?

THE COURT: Now, there are certain defenses that people can make to murder like it wasn't me, it was somebody else, there is an alibi.

THE COURT: Yes, sir. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)

THE COURT: All right, back to what I was discussing with you. The jury gets to consider the first half of the case, the first phase, guilt or innocence only. That decision has got to be made. Not guilty, not guilty by reason of insanity, the case is over with, everybody goes home, the case is over. Guilty, phase two comes in. The jury has got two decisions to make, life or death, no in between. Do you understand?

THE COURT: Now, the jury's decision, once that is made that is done. Okay?

THE COURT: Nothing happens after that but carrying out the sentences, okay?

THE COURT: My question to you is this, there is a wide variety of testimony about defense, affirmative defenses, mitigating factors, aggravating factors, huge array of potential testimony that the jury will consider. Are you going to be able to give meaningful consideration to all that testimony subject to the instructions by the Court because some of this is confusion, I instruct the law, kind of like I am explaining it to you now. I instruct the law to the jury throughout the trial but mostly importantly at the very end. All right, y'all have heard all the testimony, here is how you consider and evaluate things. Are you going to be able to give meaningful consideration to all of that testimony?

THE COURT: Act fair and impartial?

THE COURT: Still in the broad scheme, three types of Juror sheet, like this?

THE COURT: Now, I am going to give you some presumptions. Type one Juror under my three types I have submitted to you. I have done this to every Juror so this is not a test I have given you and not no one else. Everyone is given the same sheet. Type one Juror is typical, one who understands, knows, the State has proven beyond a reasonable doubt the murder. Secondly the State has proven beyond a reasonable doubt the aggravating factor, whether it be killing multiple children, killing a child, proven. Mitigating testimony, defenses and whatnot has been presented. Type one Juror says, you know what, a murder like this and the aggravating factor, the State has proven its case. I don't think there is anything but the death penalty. That is just kind of my moral compass points, that is always going to be the punishment, that is appropriate. Type two jurors, the State has proved beyond a reasonable doubt the murder, the State has proved beyond a reasonable doubt the aggravation. I understand there is mitigating factors out there. I am not signing the death penalty verdict, I think life without parole is the only appropriate punishment. That is what I am going to vote, always. A type three Juror is kind of in between those two. The State has proved the murder and the aggravation, the testimony is the same thing, all the testimony, wide array, mitigation, offenses, affirmative offenses. I want to hear all of that, I want to hear everything first and consider everything and then I will make my decision on which of the two I am going to go with. You only got two choices, life or death. I can't make them ahead of time, I want to hear it all. How would you describe yourself of the three types?

THE COURT: Third one?

THE COURT: Now, this case, as I told you, Mr. Jones has entered a plea of not guilty by reason of insanity and so that adds an extra aspect of the law. By that plea there is going to be some testimony presented about mental capacity and issues of that type. And, again, I have described a wide array of potential testimony for the jury to consider. The defenses, the affirmative defenses which insanity is an affirmative offense which means they have got to show you more. The elements of the murder, the crime itself and the aggravating factors. Now, the testimony kind of overlaps when the other half, the first half, the guilt of innocence, the State is trying to prove the murder, that is when the plea of not guilty by reason of insanity comes to play because the guilt or innocence is determined in phase one. Do you know of any reason, the verdict form will be this, guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty. Four potential verdicts for that. And I will instruct you on the law what constitutes not guilty but mentally ill, not guilty by reason of insanity and guilty but mentally ill. There is a difference, the Court instructs that to the jury. Can you give meaningful consideration to all four of those different verdict forms in reaching your verdict in phase one which will be the guilt or innocence phase. Can you do that?

THE COURT: I mean you could consider the instructions of the Court, the law as it is applicable in South Carolina in evaluating, meaningful, all the evidence and testimony presented?

THE COURT: Okay. Now, presuming this, a guilty verdict is reached and the sentencing phase begins, it starts a day or so after the first phase. And the same jury considers both sides, okay. Do you have any religious, moral, ethical reason that you could not find or consider the death penalty?

THE COURT: Likewise, do you have any religious, moral or ethical belief that would prevent you from imposing a life without parole sentence?

THE COURT: And you understand, the death penalty is not automatic?

THE COURT: You understand that. Now this case is going to involve testimony about the death of children, the testimony is going to be graphic, unpleasant, probably difficult to hear at times. And that subject matter will be a lot of the subject matter which we will, during the trial, get to evaluate. Would that subject matter create an issue for you being fair and impartial in this case?

THE COURT: You can consider that type of testimony?

THE COURT: What we are looking for is a fair Juror, open and listen to the State and equally be a fair and impartial Juror to listen to the Defense testimony, Mr. Jones. You have to listen to everything, evaluate fairly, evaluate the testimony presented to us and consider the instructions, particularly instructions of the Court. Can you do that?

THE COURT: Did I get everything, I think I did.

THE COURT: Mr. McGuire is going to ask you a few questions and then one of the other lawyers from the State will ask you a few questions.

THE COURT: I will let him rephrase it one time.

THE COURT: Mr. Jennings, thank you for your patience with me. The Court will find you as a qualified Juror. What that means, look on the website--

THE COURT: You ever go on the internet?

THE COURT: Can you watch the Lexington Website for jury information, can you do that?

THE COURT: You are now a qualified Juror and the once we get a sufficient number of those from that ground the parties will select a jury being impaneled. So you are not on the jury, a qualified Juror means you are eligible and they can consider you. Look on that website and look for qualified Juror for your information. Now, you are under oath and you are going to be easy to make the oath because you don't study the internet. Don't talk about the case, don't let anyone talk to you about the case, don't do any independent research, don't read any media reports of what is going on. What you need to decide the case you will hear in the courtroom. (Whereupon, the Juror was excused from the courtroom.)

THE COURT: Okay. Here is the thing. In a Capital case, y'all know as good as anybody, better than anybody, a Capital case, everything is ramped up one more step and cases have been reversed because a lawyer said, please, are you okay and talk to your client. And the Court didn't say, Mr. Jones, you understand. That is the issue that they are looking at and I understand it because--

THE COURT: All right.

THE COURT: Michael Charping, I was a law clerk in that one and that is why it got reversed because Judge Moore did not ask him directly.

THE COURT: No, I am going a little overboard probably. Mr. Jones, you understand the issue?

THE COURT: Sure. Go ahead. (Whereupon, Mr. McGuire talks to Mr. Jones off the record.)

THE COURT: And so the court is going to make the determination that Mr. Jennings is qualified and you understand that was subject to a comment the Court misstated, you are okay with finding him qualified?

THE COURT: Okay, fair enough.

THE COURT: No, wait a minute. I want to make sure I understand Mr. Hubbard because, maybe it is the way I am explaining it in trying to hasten the pace. My compliments to both sides, wonderful of dealing with him, I was very, very impressed. When I asked, I think, in this scenario, the murder has been proven and the guilt or innocence. The State has proven the aggravating factor. All of the stuff has been presented. That is an accurate statement of the law, is it not.

THE COURT: Right.

THE COURT: Right, I put it in there.

THE COURT: Right.

THE COURT: Okay.

THE COURT: Read your version or my version?

THE COURT: No, no, my final version doesn't have that, you struck it out. This is mine, I offered this.

THE COURT: So, if I read the one that is unedited to the Juror when they are sitting in here, type one is described as, type two is described as, type three, that is what I have given you, you read it outside, can you identify yourself in one of those three types.

THE COURT: I will do that.

THE COURT: Okay. Anybody need a break.

THE COURT: We will take a couple of minutes.

THE COURT: Number 421, Tamika Summers.

THE COURT: Ms. Summers, how are you doing. My name is Eugene Griffith. I introduced myself Monday to you.

THE COURT: In the big courtroom we asked a few questions then and I asked you to, you were under oath and asked you to not talk about the case, not let anybody talk to you about the case. Have you followed my oath?

THE COURT: Anybody tried to talk to you?

THE COURT: You did not talk to anybody about the case?

THE COURT: I tried to tell y'all to minimize if you saw any media reports, try to minimize that. Certainly the media has been around, I don't know what you do as far as news or internet, whatever. Have you avoided the media reports?

THE COURT: Now, there were other media reports prior to that, did you see any of those like prior to Monday?

THE COURT: Okay. So you heard some reports from the media?

THE COURT: Now, have you formed an opinion about this case about what happened?

THE COURT: Have you formed an opinion about what you believe happened in this case?

THE COURT: Now, understanding this, I am looking for fair and impartial jurors to listen to what happened, testimony and evidence and make a decision based upon what they hear in the courtroom, witnesses and evidence shown. Do you understand that?

THE COURT: Can you do that?

THE COURT: I mean, the media may have misreported something so how long did you see that media report?

THE COURT: Okay. A lot of stuff the media reports are things you are going to hear again accurately, firsthand is easier for you to receive information. Do you agree?

THE COURT: Now, are you or a member of your immediate family a member of any type of organization which advocates for victims, Mothers Against Drunk Driving, Students Against Drunk Driving?

THE COURT: CAVE, Citizens Against Violence?

THE COURT: Any member or you contribute to the Sheriffs Association, Sheriffs Association, Law Enforcement Association?

THE COURT: And would that affect your ability to be fair in this case?

THE COURT: Okay. Now, I gave you a list of witnesses, potential witnesses. I have got to do that, the jury considers testimony from whoever it is and it won't be somebody's first cousin sitting there testifying and then that person has to testify and puts you and that person in an awkward position. Are you connected to anybody on the witness list?

THE COURT: Do you know anybody on the witness list?

THE COURT: Do you, are you connected to any of the lawyers in this case, not all of them are in the courtroom. Mr. Graham is not here, he is the tall and slender with the beard. Are you connected to any of the lawyers?

THE COURT: Are you connected to Mr. Jones or his family?

THE COURT: Type one. Now, is there any reason for you whatsoever adhere to the aggravating factors or mitigating factors, and they have explained why the event occurred, you are a pretty solid type one?

THE COURT: Okay. Any reason to go further?

THE COURT: Thank you for your patience. You are excused and you don't have to come back. Thank you, Ma'am.

THE COURT: Keith Shirey.

THE COURT: Good morning, Mr. Shirey.

THE COURT: I have got to ask you a few questions. My name is Eugene Griffith and I am the Judge who introduced myself to you Monday. I am going to ask you a few questions here right now. The first thing here is to get to know you a little bit, find out some information from you. You are under the oath to tell the Court, the lawyers the truth. Part of what I told you Monday is not to talk about the case. Have you talked to any body about this case.

THE COURT: Back here. Were you discussing some general things or what.

THE COURT: And there has been some media attention, a lot of media attention in this case. And have you, anybody question you about the case, about what you knew about it?

THE COURT: Now, the nature of the conversation back in the jury room, was that just what y'all seen on TV here recently or several months ago?

THE COURT: Was that before. I am trying to minimize the--

THE COURT: Did you see some media reports?

THE COURT: Did you watch them or did you just saw they were on TV?

THE COURT: New house. Have you formed an opinion as to what happened in this case based upon anything that you have heard?

THE COURT: And tell me what you think is happening. I would like to know that?

THE COURT: And there were children involved?

THE COURT: And the fact that children are involved, is that a factor for you to consider?

THE COURT: Now, I gave you a sheet about potential jurors, potential jurors. Just hypothetical, the State proves the case, proves the murder, proves children were involved. Did you identify yourself as one of those three types of jurors?

THE COURT: Type one, you are pretty solid on type one?

THE COURT: Okay. I understand. Thank you for coming. You are free to go. (WHEREUPON, the Juror was excused from the courtroom.)

THE COURT: Do we have that third panel, are they here yet?

THE COURT: I mean, he was candid.

THE COURT: I didn't know what to say.

THE COURT: I want to inquire first before I consider something like that.

THE COURT: Yes.

THE COURT: The next one comes back at 1:00.

THE COURT: Yes.

THE COURT: Two.

THE COURT: No, no. Chavis yesterday, Jennings that was the only one qualified this morning.

THE COURT: I am not going to bring him back in today but we will get him back in there.

THE COURT: That would be two. Mr. Chavis, the Clemson guy that hadn't seen his friends in a coon's age. That guy. And Jennings here this morning, the gentleman that was earlier today.

THE COURT: Those two we will bring them back in and ask a few more questions.

THE COURT: We have got to. Yes, absolutely got to do that. But, I mean, this could impact whether we keep at home or not, whether keep them at home or keep them together, sequester them. Sequestering in the jury room obviously is a problem because they are not following my instructions to not discuss the case.

THE COURT: I think they need to be warned.

THE COURT: All right. At this time, respectfully, that is going to be denied. I will see y'all back here in about an hour.

THE COURT: (Whereupon, Court's Exhibits 68 through 71 were marked for identification only.)

THE COURT: Are we ready for panel three?

THE COURT: Okay.

THE COURT: Can we read that to all eight?

THE COURT: What y'all think about that?

THE COURT: Let's give it try with all eight of them after I tell them not to discuss the case.

THE COURT: The types are going to be this. I am not going to tell the types, I am going to read this instruction, send them back and bring them in one at a time and then first question, here are the three types, you have read it, what do you think. Right there, so we are going to read this, send them back, call them in, the first question or second question is what type are you.

THE COURT: Yes, that is not a bad idea.

THE COURT: There is no need for me to cross educate anybody about--

THE COURT: Bring them in here, the entire panel. (Whereupon, the third panel came into the courtroom, 166, Conrad Gore; 172, Daniel Hall; 312, Laura Nielson; 416, Kelly Stone; 283, Sarah McNeal; 405, Phillip Smith; 231, Tiffany Kent; 293, Jessica Miller.)

THE COURT: Very good. Step back in the jury room and we are starting Juror number 405. You had some scheduling issues.

THE COURT: We will talk to you when you come back in. (Whereupon, the jurors were excused to the jury room.

THE COURT: We will give 405 a chance to read and whatnot so we will stand at ease for a minute.

THE COURT: He has already read?

THE COURT: I am going to ask him if he has had enough time to look over it. We will bring him in and put him under oath and give him some time. (Whereupon, Juror 405, Phillip Smith came into the courtroom.)

THE COURT: Mr. Smith, good to meet you again.

THE COURT: My name is Eugene Griffith, like I introduce myself. You are under oath again, you were under oath Monday. First couple of questions. I asked the Juror to accept an oath and not communicate about the case in any fashion from Monday to today. Have you talked to anybody about the case?

THE COURT: Anybody talk to you about the case?

THE COURT: Now, there have been media reports out before and after Monday. Have you seen, I asked you to minimize your media review. Have you seen any media reports on the case?

THE COURT: And accurately reporting things were moving slowly?

THE COURT: Okay. Now, have you formed an opinion on the case at all yet?

THE COURT: Well if you have, I told y'all--

THE COURT: Okay. Now I handed to you to review three types of potential jurors?

THE COURT: Do you need to see it again?

THE COURT: And anyway it kind of presupposes certain things. If a conviction of guilty was found unanimously, I will read this to you if--

THE COURT: Can you describe yourself, find yourself in one of those three--

THE COURT: Yes?

THE COURT: Two step process.

THE COURT: Are you pretty solid on that?

THE COURT: Okay. Fair enough. Thank you for coming in. You are free to go.

THE COURT: Bring the Juror in.

THE COURT: Mr. Gore, my name is Eugene Griffith, I have introduced myself a time or two to you and to the other jurors. And you are under oath now. Some of the questions you will be asked will be, kind of form of an opinion, really no wrong answer. Got to be truthful and candid. Some questions are very direct and need to answer truthful and so I want to know. I put you under oath Monday and said, please, don't talk about the case with anybody. And that was part of your oath. Have you talked to anybody about the case?

THE COURT: Has anybody tried to talk to you about the case?

THE COURT: What happened in that conversation?