1.Jury Selection
1,903 linesMay 3, 2019 (Whereupon, the Court will talk to the jurors who did not come to court on April 29th, 2019.) (Whereupon, waiting on jurors to enter the courtroom.)
THE COURT: Solicitor.
RICK HUBBARD: A couple of non-jury matters.
THE COURT: These are non-jurors. Go ahead while we are waiting on them.
RICK HUBBARD: There are some reports that we want to see if we can get one is by Dr. Maddox, Dr. Donna Schartz-Watts Maddox.
BOYD YOUNG: I got it for them this morning, Judge, I will, I don't have a hard copy yet. I will email it to them so they will get it.
RICK HUBBARD: As far as other reports, we had some preliminary for, I don't know, reports but not final reports by some of their other folks, if they have got final reports we would like to have those as well.
BOYD YOUNG: We will give it to them. Of course, we didn't file Rule 5 but we are giving it to them anyway.
THE COURT: I mean, that's, we can't play that. You have got to give them to them if they ask for them, don't you.
BOYD YOUNG: No sir, we don't have to give them anything. But we have given them everything.
THE COURT: I know, but that is just kind of cheesy to say, we didn't file Rule 5, that is a little, I understand how that Rule is written and how Defense lawyers will argue it and I just find that a little disingenuous.
BOYD YOUNG: It is not disingenuous in the sense that they gave me stuff and I didn't send it back and say, we have filed a Rule 5 but I did that with the understanding I was giving them everything anyway.
THE COURT: Right and then, you know, anyway, y'all share everything and I appreciate y'all doing that.
RICK HUBBARD: It would help Dr. Frierson because I think, before he testifies he would want to review it, Your Honor. Thank you. And one final thing, very small thing and it sounds so petty on our part but it is really not. We have been using this door, we have got all of our stuff here. We just ask and I know the way this courtroom is built is unfortunate. But we would just ask that the Defense use the back door because our stuff is here and they have been walking by. I don't want, I don't think there has been any bad activity or anything like that, I am not saying that, I am not alleging on their part. It is crowded and this is our stuff. If they can just please do that, I know it is an inconvenience and I apologize but it is just how the Court House was built.
THE COURT: I agree. Y'all be mindful of that, I don't think there is anything going on but y'all have got a crowd, they have got a crowd and y'all got third row, both sides have got third row.
RICK HUBBARD: Thank you, Judge.
THE COURT: Yes, sir.
BOYD YOUNG: I have an issue with that.
THE COURT: I know but they do, y'all can't because they can't go that way.
BOYD YOUNG: I don't have an issue with you telling us we can't walk past the table. It is fine. Two things before we start with jurors.
THE COURT: I want to deal with these jurors first. These are the jurors who didn't show up. Do you want to state something before they come up here.
BOYD YOUNG: I can do it after they come up here.
THE COURT: Let me deal with them and then we will start with our panel. Whichever my clerk's can call, whoever these are. I want to know who they are. Let's call them up here one at a time.
COURT CLERK: I don't have the list, I can look them up.
THE COURT: Let's just start on the end, you in the black shirt, come on up. What is your name.
JUROR: My name is Jamie Sheffield. I missed court Monday.
THE COURT: How did you miss it.
JUROR: I was at my lawyer's office on Monday morning fighting for visitation for my children. There is all of my evidence right here and I know it is not a very good excuse of forgetting but I just had a lot of things going on.
THE COURT: Did you have a summons to be here Monday?
JUROR: Yes, sir. This is what y'all sent me.
THE COURT: Did you send questionnaire back in for me.
JUROR: I believe so, I took it in the post office.
THE COURT: Did you get his questionnaire responded back. You got it?
COURT CLERK: 390. Yes, sir.
THE COURT: He sent it back. Okay. You were at you lawyers office all day?
JUROR: I want to say like 10:00 and 11:00.
THE COURT: You were thinking about court over there.
JUROR: I had court.
THE COURT: I am going to reassign you into a different term of court but I am not sure what else I am going to do. This is created an inconvenience because we have a bunch of people here. A lot went on getting this organized and it is really frustrating to the lawyers to put the time in. Have a seat, okay.
JUROR: Okay.
THE COURT: Nexts in line, come on. Tell me who they are. What is your name.
JUROR: William Brown.
THE COURT: William Brown.
JUROR: Number 60.
THE COURT: Why didn't you show up Monday?
JUROR: Forgot, plain and simple, ain't going to lie to you.
THE COURT: Created a big inconvenience on us.
JUROR: I understand that.
THE COURT: So I am going to reassign you to a different term of court and maybe make y'all sit here today and watch a little bit of this.
JUROR: Not a problem.
THE COURT: Thank you, Mr. Brown, for your candor.
JUROR: I mean, there is no sense in lying about it.
THE COURT: Next. What is your name.
JUROR: Taylor Oswell.
THE COURT: Why didn't you come to court Monday.
JUROR: I had a job interview that same day and I had forgot about it. And then I had it in my phone and forgot.
THE COURT: Did you get that letter and all the questionnaire, did you send it back?
JUROR: Yes, sir.
THE COURT: Did you read that letter? Tell you not to wear shorts?
JUROR: I was on my way over--
THE COURT: It created a huge inconvenience on the system and we have got a lot of people in here, a lot going on.
JUROR: Yes sir, I do understand.
THE COURT: I am going to reassign you to a different term of court but I am probably going to do something in addition for creating an inconvenience. Have a seat. Next, in the green. What is your name.
JUROR: Martinez.
THE COURT: Did you get my letter and the questionnaire I sent out?
JUROR: I am not sure.
THE COURT: What do you do for a living?
JUROR: Right now I am just coming out of college, sir.
THE COURT: What are you studying.
JUROR: Welding, sir.
THE COURT: Okay. You got a Juror number for me.
COURT CLERK: 270.
THE COURT: Why did you miss Monday?
JUROR: I had, I had no idea, I forgot.
THE COURT: I am going to reassign you to a different week and I am also going to do something else, I haven't decided. Have a seat. Thank you for your candor. Next in line, come on. What is your name.
JUROR: Gary Pilkington.
THE COURT: You remember your Juror number?
JUROR: No, sir.
THE COURT: What happened Monday?
JUROR: I had a doctor's appointment, I didn't think about this until I got out of the doctor's office.
THE COURT: I sent that letter out back in February.
JUROR: I filled out the paperwork and all and sent it back in.
THE COURT: You were at the doctor.
JUROR: Yes.
THE COURT: Were you sick?
JUROR: No, I had knee replacement.
THE COURT: Did you. It was like a follow-up.
JUROR: Yes.
THE COURT: I am going to reassign you to a different week of court and I am not certain what I am going to do for y'all. We got 165 jurors that came in and so y'all 15 put an inconvenience on the whole system so I am trying to figure out what to do with you. Next. What is your name.
JUROR: Keisha Patti.
THE COURT: Ms. Patti, do you remember your Juror number?
JUROR: No, sir.
THE COURT: What happened Monday?
JUROR: My son got sunburned over the weekend with some friends and then, he didn't go to school that day, Monday so I had to stay home with him on Monday.
THE COURT: Did you remember you were suppose to be here?
JUROR: Yes, sir.
THE COURT: Did you call anybody?
JUROR: No, sir.
THE COURT: Okay. It created a big inconvenience on the system. We put a lot of effort in this. I am going to reassign you to another term of court but also going to keep you here today for a little bit. Have a seat.
JUROR: Okay.
THE COURT: Next. What is your name.
JUROR: Ashley Thompson.
THE COURT: Ms. Thompson, what happened Monday?
JUROR: It slipped my mind.
THE COURT: You got my letter and whatnot?
JUROR: Yes. I told my boss about it and it just slipped my mind, I am sorry.
THE COURT: Okay. It created a big inconvenience. I am going to transfer you to another week of court. Have a seat. What is your name.
JUROR: Cindy Macedonia.
THE COURT: I go to Macedonia Church over in Prosperity side of the lake. What happened Monday.
JUROR: I was babysitting my Grandson.
THE COURT: This trial has been a huge organization struggle and it was a big inconvenience on us. A number of people didn't show up and it created problems. I am going to reassign you to a different court week but thank you for your candor. Have a seat. What is your name.
JUROR: Janet Jackson.
THE COURT: Where were you on Monday?
JUROR: I had a medical issue, I was at the hospital. I called.
THE COURT: Did Ms. Jackson call, she was, had a medical issue. You went to the hospital?
JUROR: I had bleeding. I forgot after that.
THE COURT: I can understand that. Have a seat and I will reassign you to a different court. What is your name.
JUROR: Christy Sulier.
THE COURT: What happened Monday?
JUROR: I forgot.
THE COURT: You know that created a big inconvenience on the whole system. I will reassign you to a different court week. Have a seat. Number 36. What is your name.
JUROR: Tina Brittin.
THE COURT: Ms. Brittin, did you get the summons to be here Monday?
JUROR: Yes, sir.
THE COURT: What happened?
JUROR: My step-dad's uncle died and I was the only one that was able to go to the funeral. So I had to go to that.
THE COURT: Did you call the Clerk's office?
JUROR: I didn't even have a chance to think about it.
THE COURT: I am going to reassign you to a different court week. Have a seat. What is your name.
JUROR: Jason Pendleton.
THE COURT: What happened Monday?
JUROR: I forgot.
THE COURT: Fair enough. Big undertaking get this big of a trial organized. Questionnaire and all of that sent out is expensive. I am going to reassign you to a different court week. Have a seat. I have spoken on the record with all jurors who failed to show Monday, your original summons day. Everyone has given me an explanation as to why they failed to appear. As I told each of them, this is a big undertaking to get this much organized by the Clerk's office, by the Court's staff. Anyway, a summons to appear at jury duty is very important to conducting business of the Court and it must be done orderly, it must be done properly. But I don't want jurors who did show up to feel as if the jurors who didn't show up just got away with something scott free. So all jurors who did not appear Monday will be reassigned to another court week. Ms. Jackson did not appear because she was in the hospital.
Except for you, she had a plausible reason and she reported it to the Court, to the Clerk staff as to where she was so I would find that to be a very plausible reason for her not to be here. The balance, the other eleven, I am going to make them stay today or come back Monday. Their choice and sit through the voir dire process for the entire court day so they can see what is going on and what the other jurors are doing. But they will observe court in the jury selection process for the entire day. To understand the importance and the systematic process we are going to go through, not because they are being punished, but I want the other jurors who did show up to understand that just by not showing up they got away with just being transferred because that is not fair and this Court is not going to allow that to be considered as a reason for not showing up, so you can not have jury duty. Everyone will have jury duty but they also will have a day in court. Ms.
Jackson is free to go, the others need to tell if you will stay today or stay Monday. I want to know shortly. One of the clerk's staff will be out there, today or Monday. If you choose Monday and don't come back Monday it is going to cost you two days. It is important to understand when the Court and the Clerk sends out summons that they be responded to appropriately. So that is my imposition of a sanction. All right. Ms. Counts, you deal with that and get their list and make sure we know who is who and we are ready to go forward. Mr. Young, you said you wanted to put something else on the record, I think before we started with the jurors.
BOYD YOUNG: Yes, sir. Two things. One, I know the Court has been, in your preliminary instructions to the jury, you have been saying Mr. Jones has requested a jury trial which of course is inaccurate because Mr. Jones has requested a bench trial and the State has objected to that which is their right. But I do think it is important that we give the jurors accurate information. So I request that the Court amend that in their initial jury charge. And I would also request that the Court tell the jurors that the cameras in the courtroom are not rolling on them and that their names and stuff are not being released.
THE COURT: In the summary preliminary instructions, I glanced over it very quickly. I don't see it said, maybe it does and I just glanced over it twice. I am certain I have said that, this comment that I have read does not say that and so I will read it again consistently with the way it is written and I will also tell the jurors that the cameras are off. Okay. Are we ready to bring the panel in?
RICK HUBBARD: Yes, sir. You are going to read it as you were?
THE COURT: Yes, read it as it is. I think that worked relatively smooth yesterday afternoon for everybody. What do y'all think about making the jurors sit here. Do y'all like that?
BOYD YOUNG: I understand where the Court is coming from. I just worry that they don't, they haven't been told that they can't tell anybody, the media.
THE COURT: I want those eleven jurors back in here.
BOYD YOUNG: Or make them sit through the first day of trial.
THE COURT: The one lady in the hospital made sense.
BOYD YOUNG: I do think it is a risk that is not worth taking.
THE COURT: One more time, what was your issue.
BOYD YOUNG: They are talking, telling people what is being said, recording what has been said, on Facebook telling the people who the other jurors are. Telling what the questions are.
THE COURT: That is a valid comment.
COURT CLERK: I have another one that shown up.
THE COURT: If I admonish them that they can't repeat what they hear in here. I can do that.
BOYD YOUNG: If you trust them.
THE COURT: No, I don't trust them. They are worried about them publishing what they hear in here. I thought about it. What do you think, Lisa.
COURT CLERK: They are doing what?
THE COURT: They are worried about them sitting in here and talking about the case and going on Facebook saying the Judge is, whatever.
BOYD YOUNG: Let them come back.
THE COURT: Come back when?
BOYD YOUNG: When you are here next time.
COURT CLERK: You can make them sit through civil.
THE COURT: They can sit with Judge McLeod.
COURT CLERK: I can see the concern with that about Monday.
BOYD YOUNG: Just transfer them and let's move on. I am not trying to, y'all do what you want.
THE COURT: Let's take them downstairs and transfer them to a civil week. I like that, we are in court and there is some stuff going on I don't want them to hear. I want to get their attention.
RICK HUBBARD: The easiest thing to do is have them show up when you hold court again, that way you still got your grip on them, you have a list of names.
THE COURT: I want them to come sit in in a day of court with me. It will be better. Go tell them that is what I am going to do. I am going to transfer them to a week I am holding back in Lexington and that way I can impose the sanction at my discretion then. On this trial I don't want this to be a distraction to me.
COURT CLERK: So they are going to get another summons.
THE COURT: Right. Just walk them out of here. If the media asked, I am transferring them to another week when I am holding court. That is what we are doing.
RICK HUBBARD: Do you want a caution or anything. They really haven't heard anything.
THE COURT: Let's get them out of here and do that. (Whereupon, the eleven jurors that did not show up on Monday were escorted out of the courtroom to come back at another date to sit in court with Judge Griffith.) (Whereupon, eight jurors entered the courtroom. 162, Amy Girardeau; 302, David Murphy; 59, Nathaneal Brown; 101, David Connelly; 125, Hope Derrick; 226, Desiree Jordan; 373, Taylor Sawyer; 169, Jeffery Griffith.)
THE COURT: Good morning, folks. Thank y'all for being patient. What is going to happen now, brought y'all all in. Madam Clerk, will you place this entire panel under oath, please. (WHEREUPON, the jury panel of eight was sworn at approximately 9:42 a.m.)
THE COURT: I will remind you you are under oath when you come back in here. I am going to give you a preliminary brief instruction on how to, what to expect, criminal procedure, definition of some of the elements of going on, some aspects you may hear. And after that I will put you back in the room and then call you in one at a time and ask you a few particular questions on your own and then the lawyers get an opportunity to ask you questions individually. When you go back to the room you are going to be given a list of witnesses and another sheet to review and you will be asked questions about that, do you know anybody. The questions today, they are going to be truthful because you are under oath but candor and honesty. Some of these questions, many of them is about your opinions and some of your opinions matter but they have got to be truthful opinions, not what you think the lawyers are asking for. Everybody is listening and trying to get you to know you a little bit.
So candor and truthful is what we are looking for. I am going to introduce again to you. My name is Eugene Griffith and I am the presiding Judge here in the trial. And I will give you this preliminary instruction and then let you retire back to the big room. You, as a group, have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. I said my name is Judge Eugene C. Griffith, Jr. and I am the presiding Judge. Mr. Jones is charged with five counts of murder. In South Carolina murder is defined as the killing of another person with malice aforethought. Malice is defined as a person with a wicked or depraved heart, intent on wrongdoing, hatred, ill-will or hostility. The definition of murder excludes any just cause or excuse for the killing. The State alleges the defense of murder combined with an aggravating offense, then the State can seek the death penalty. Now before and during a trial a person accused, such as Mr.
Jones, they are presumed innocent of each and every element to which the crime he is charged. The State must prove each and every element of the crimes charged by a standard of proof called beyond a reasonable doubt. In most criminal cases the Judge determines the punishment after a conviction at trial. But in a Capital case the jury determines the punishment. In a Capital case a trial is divided into two parts potentially. The first part is called the guilt or innocence phase and then if necessary the punishment phase is the second half. In the first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If the jury unanimously finds the accused guilty of the murder then the trial proceeds to the second phase. In the second phase, the State must prove an aggravating factor beyond a reasonable doubt, if they do that then the jury considers the aggravating and mitigating evidence presented in deciding the punishment.
Either life without the possibility of parole or the death penalty. Our law in South Carolina does not allow the State to seek the execution if the person is convicted solely of the murder. The State must prove the additional aggravating factor. The State must prove at least one of the statutory aggravating factors beyond a reasonable doubt. Now even if the State proves murder and an aggravating factor jurors are required to consider all mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. Even if no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. Even if jurors unanimously decide to sentence a Defendant to life without parole then a sentence of life without parole will be imposed. In this case the State has indicted five counts of murder and has notified Mr.
Jones that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity. In this case you may hear testimony and evidence showing many things. A wide variety of testimony may be presented to you during the trial and as those issues I will instruct you as to how to consider and evaluate this testimony, whether it be defined as evidence of an aggravating factor, evidence of mitigation which would be any reason to vote for a sentence of life without parole. Evidence of any defenses, evidence of any affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. So until the testimony and evidence is presented I am not able to tell you the exact instruction of law that I will give on these aspects but you can, can you accept the oath to meaningfully consider the testimony and evidence and apply the law as I instruct it and consider all the evidence consistent with these instructions. Those are my preliminary instructions. And my sentence was a question. You will be asked that in addition to other questions when you come back in. Now, also, the first question I will be asking you is aspects of any personal scheduling conflicts. I will inquire to those, so that is when we will talk about that. Okay. Y'all step back in the jury room and I will, not sure which one of y'all is first out but will have you back out here in a few moments. (Whereupon, the jury panel was sent to the jury room.)
THE COURT: Y'all want me to swear them in again or just a reminder they are under oath.
BOYD YOUNG: Just a reminder.
RICK HUBBARD: A reminder.
THE COURT: Okay, that is fair.
BOYD YOUNG: Your Honor, just a reminder about the cameras.
THE COURT: Okay. Bring them in. (Whereupon, Juror 162, Amy Girardeau came into the courtroom.)
THE COURT: Tell me your name.
JUROR: Amy Gerardeau, 162.
THE COURT: Spell your last name.
JUROR: G-I-R-A-R-D-E-A-U.
EXAMINATION
By The Court:
THE COURT: The first question, I introduced myself. My name is Eugene Griffith, good morning. It is our opportunity to get to know you a little bit and ask you some questions. And I gave you a preliminary instruction, there are no wrong answers, just candor so remind you you are still under oath. Did you understand my preliminary instructions?
JUROR: I did.
THE COURT: Now, when we met Monday I placed the entire panel under oath to not talk about the case from that point forward. Have you followed that oath?
JUROR: I have.
THE COURT: Has anybody tried to contact you, communicate with you, ask you questions about the case?
JUROR: I have told family and boss where I am today.
THE COURT: So other than telling them where you are going that is all the communication you have had.
JUROR: Yes.
THE COURT: There has been media coverage before Monday, several years ago, last week, this week. Has any of that media coverage caused you to form an opinion as to the facts of this case?
JUROR: I read an article the weekend before that jury selection started on Monday. That is all I knew.
THE COURT: I am looking for, I am just wanting to know, have you formed an opinion of what you think happened?
JUROR: No, sir.
THE COURT: All of your answers have to be out loud. She takes everything I say. She has to hear you and the attorneys have to hear you. I gave you a witness list, did you review that witness list?
JUROR: I did.
THE COURT: And did you recognize any names?
JUROR: I recognized a last name.
THE COURT: Tell me who it is.
JUROR: McBride, last name.
THE COURT: McBride.
JUROR: From Saxe Gotha.
THE COURT: A teacher?
JUROR: I think it said the person was a teacher. I just know the last name.
THE COURT: Rebecca McBride at Saxe Gotha Elementary. How do you know her?
JUROR: I am not sure if I know her. I did know Mr. Robbie McBride. He was my pastor when I was growing up.
THE COURT: You grew up in the area?
JUROR: I did.
THE COURT: Other than that one, you may know her?
JUROR: I may, I may not. I just know the last name.
THE COURT: Now, let me ask you this. This case involves the death of five children and that subject matter is going to be relatively difficult and unpleasant, perhaps graphic at times. The subject matter of that type may be difficult for you to consider and listen to and be fair and impartial to both the State and the Defense?
JUROR: I think that I could be fair.
THE COURT: Now, in my preliminary instructions, I kind of gave you a summary of the procedures that go forward and the trial is provided into two parts. Part one, in part one if there is not guilty verdict, not guilty by reason of insanity the trial is over, it stops, it ends there. If it is guilty verdict or guilty but mentally ill or guilty then the trial will go to phase two. I gave a list, a sheet, I have a copy here if you need to see it again, of three types of potential jurors. Type one, type two, type three and it is general categories but it is regarding the, how you consider yourself, evaluate yourself. Could you find yourself, did you read that sheet?
JUROR: I did.
THE COURT: Did you understand it?
JUROR: I did.
THE COURT: Can you find what type you may fall into?
JUROR: Three.
THE COURT: And type three would be someone who wants to wait to the very end and hear everything whether it is aggravating or mitigating, all of it?
JUROR: Right.
THE COURT: That is how you find yourself?
JUROR: Right.
THE COURT: Okay. Now, let me ask you this. I am going to toss out some additional terms because I ask you about some defenses and there are other defenses that may be presented during the guilt or innocence portion and describe the verdict form. Potential defenses in the guilt or innocence could be accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, most of these, all of these are mostly in the statute that are defenses, a person can claim. And sometimes testimony comes out that shows those. I haven't heard the testimony, nor have you so we are kind of guessing or anticipating on what is going to be presented. Sometimes that is difficult for me to do. My instructions would include instructions on the law if testimony to support those defenses were presented. Now, knowing that Mr. Jones has tendered a plea of not guilty by reason of insanity, the potential verdicts and guilt or innocence in that first stage could potentially be four. It could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. And those, I read additional defenses there but can you give meaningful consideration to each and every one of those potential verdicts understanding that I will instruct you on the law at that time to explain those potential verdicts. But also can you consider the facts and circumstances presented during the trial subject to my instruction on the law and act fairly and impartial in this case?
JUROR: I can.
THE COURT: Now, if there is a finding of guilt we go to stage two. And at that time then jurors also consider aggravating factors. And potentially aggravating factors are such as this. Multiple murders, children victims, murder of a police officer, rape and murder, kidnapping and murder, those are aggravating factors that the State is under a duty to prove beyond a reasonable doubt. And an aggravating factor, at least one of those statutory aggravating factors. Now, mitigating evidence is also presented during a trial. There is no really requirement as to how much mitigating evidence has got to be presented but it is presented. So jurors are required to consider whatever it is. Mitigating factors are reasons that a Juror would want to enter a verdict, I am sorry, a sentence of life without parole. You understand this, if it goes to stage two, the jury has decided the sentence, there is only two choices, life or death.
There is nothing else, no years, no in between, life or death, those are the jurors choices and they make one of those two choices. Now, potential mitigating factors could be the Defendant has no significant history of criminal, prior conviction involving the use of violence against another. The murder was committed while the Defendant was under the influence of mental or emotional disturbances. The victim was a participant in the Defendant's conduct and consented to the act. The Defendant was an accomplice in the murder committed by another and his conduct was minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct was impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18. The Defendant had mental retardation at the time of the crime.
And any other reasons, such as tough childhood, broken home, came from a broken home. Those are mitigating factors, some of those are listed in the statute and some of those are just factors that people can consider. You can consider anything you like as a mitigating factor. That type of testimony will be presented also. Now, can you meaningful consideration to my instructions on the law regarding, evaluating and considering the State's burden of proof with the aggravating factor, the mitigating factors, give meaningful consideration to my instructions and testimony, evidence presented in this trial and act as a fair and impartial Juror?
JUROR: I can.
THE COURT: Now, your personal schedule coming up. Do you have vacation, medical procedure, getting married. Things like that?
JUROR: Just the 9 to 5:00.
THE COURT: You don't have anything personal scheduling problem if you were called, to sit as a Juror because it may take about a month.
JUROR: Not during the week days.
THE COURT: Okay. Weekends would be an issue?
JUROR: Possibly.
THE COURT: Okay, fair enough. Now, do you understand that the death penalty is not automatic?
JUROR: Yes.
THE COURT: Do you have any religious or moral beliefs which would cause you or prevent you from considering the death penalty as a potential verdict?
JUROR: No.
THE COURT: Do you have religious, moral or personal beliefs that would prevent you from considering life without parole as a potential sentence?
JUROR: No, sir.
THE COURT: You can consider both?
JUROR: Yes.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Ms. Girardeau.
JUROR: Good morning.
BOYD YOUNG: Is that close?
JUROR: Yes.
BOYD YOUNG: Can you say it for me one more time.
JUROR: I use Girardeau.
BOYD YOUNG: I apologize, thank you for being patient with us. We are going to talk a little bit about your opinions like the Judge told you. There are no right or wrong answers, okay. And I want to let you know that if there is anything that you want to ask the Judge and come up here and talk about with just us as opposed right here we can do that. Okay?
JUROR: Okay.
BOYD YOUNG: And I know you had said you had been a victim and if you want to talk about that here, I just have to ask you a couple of questions, I am not going to bring up too much about it. Okay?
JUROR: Okay.
BOYD YOUNG: And you put it in your, and I appreciate you putting it in your questionnaire.
JUROR: Right.
BOYD YOUNG: Would that experience in any way impact your ability to be fair and impartial?
JUROR: Does it, no.
BOYD YOUNG: I have to ask?
JUROR: That's okay.
BOYD YOUNG: And I noticed you were defended against a couple of times too, is that right?
JUROR: Right.
BOYD YOUNG: Does that in any way impact you to be fair and impartial?
JUROR: No.
BOYD YOUNG: Okay. You stood up when we over in court on Monday saying that you had heard something about the case. Did you hear about it back in 2014?
JUROR: I did not. An article came across my Facebook saying selection started on Monday, jury selection on Monday. I just assumed that that was it.
BOYD YOUNG: Okay. That was the only article you saw, you didn't hear about it when it first happened?
JUROR: I did not.
BOYD YOUNG: Okay. Can you tell me, I am going to ask you about your views about the death penalty. Can you tell me a little bit about where you stand on the death penalty?
JUROR: I wouldn't say I am against it, I think it can be considered in extreme cases. Obviously, I agreed with the third jury selection, that I would rather hear both sides and make a decision, not one or the other.
BOYD YOUNG: Very fair. Do you think it is sort of an option of last resort?
JUROR: If it is warranted I would say I would agree with it, if it is not I wouldn't, I don't know if that answers your question?
BOYD YOUNG: You would know it when you heard it?
JUROR: Right.
BOYD YOUNG: Does that sound right?
JUROR: Yes.
BOYD YOUNG: And it sounds like, if I use the phrase with you, an eye for an eye and ask you whether or not that was something that resonated with you?
JUROR: I think if I heard everything and thought that that was appropriate that I would go that route. If I didn't I wouldn't. I haven't had any pleasure of that before.
BOYD YOUNG: Okay. Fair enough. Let me give you a little bit more information. First, I want to talk, about you guilty, not guilty, not guilty by reason of insanity, guilty but mentally ill of murder. Okay?
JUROR: Okay.
BOYD YOUNG: And the Judge told you a little bit about the not guilty by reason of insanity, Mr. Jones has plead not guilty by reason of insanity. Okay. And not guilty by reason of insanity means, says I did it, I did the actions but because of a mental disease or defect I was not able to appreciate the legal or moral wrongfulness of my actions. Do you understand that?
JUROR: I do.
BOYD YOUNG: Any questions about that?
JUROR: No.
BOYD YOUNG: To some people that verdict is sort of a copout in letting somebody just sort of not be responsible for their actions and I just need to ask you, is that you?
JUROR: I was pre-law in college, I know what it means.
BOYD YOUNG: Thank you very much. Moving on, after you found somebody guilty or guilty but mentally ill of murder, that means that they knew what they were doing, knew the difference between right and wrong, not an accident, not self-defense, intentionally with malice chose to kill an innocent person. Are you with me on that?
JUROR: Right.
BOYD YOUNG: And then the next part would be an aggravating circumstance. Are you with me on that right. In this case, multiple children murdered, right?
JUROR: Right.
BOYD YOUNG: And then the jurors would have a punishment option, are you with me on that?
JUROR: Yes.
BOYD YOUNG: At that point and time where you just heard guilty, murder, multiple children. Some people think the death penalty is the only appropriate punishment in that type of case. Is that you?
JUROR: I don't think it is the only appropriate punishment.
BOYD YOUNG: Okay. Why not?
JUROR: I would have to consider everything and I think in extreme cases, like I said, that is warranted but I couldn't just say that without hearing anything.
BOYD YOUNG: In your mind, when you are talking about these extreme cases where it may be warranted. Is there anything about a Defendant in those extreme cases that you could learn that you say, you know what, that makes me think the life penalty might be more appropriate?
JUROR: I feel like my answer is the same, kind of, if I heard the case and based it on what I heard then I would make a decision.
BOYD YOUNG: Okay. And I guess, could a Defendant's character and background, how they grew up, how they were raised, who their family was, events that had happened to them throughout their life. Would that stuff be important to you in deciding which punishment was appropriate?
JUROR: I don't know if that decides the punishment. I think it adds to the facts and everything but I don't think that decides the punishment.
BOYD YOUNG: Okay. Do I hear you are saying, you would decide punishment based on the crime?
JUROR: Right, based on the facts and what has happened, not personal background, I guess.
BOYD YOUNG: Okay. I understand where you are coming from. That is totally fine, okay. I will talk to you a little bit about how jurors are going to be instructed to make this decision. Okay. First we have, what we talked about, sort of the statutory aggravating circumstance. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And those have to be proven to each and every Juror unanimously beyond a reasonable doubt. Okay?
JUROR: Correct.
BOYD YOUNG: Do you understand that. And then you have mitigating circumstance. The Judge told you a couple of them that are listed in the statute. Right?
JUROR: He did.
BOYD YOUNG: And then you could, mitigating factors can also be anything else that a Juror believes is a reason to vote for a life penalty. Okay.
JUROR: Okay.
BOYD YOUNG: Are you with me on that?
JUROR: I am.
BOYD YOUNG: Each Juror gets to decide for herself what value to put on any specific piece of mitigation. Okay. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And it doesn't have to be unanimous, it doesn't have a burden of proof, once one Juror decides for herself, for me this is a mitigating factor that I want to give the value of life, they are entitled to do that. Okay?
JUROR: Right.
BOYD YOUNG: And it can be anything that the defense presented, it can be presented by the State. The jurors can find it on their own. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: So one Juror can say, I saw him have a loving relationship with his father and based on that relationship I think I want to vote for a life penalty based on that. Do you understand that?
JUROR: Yes.
BOYD YOUNG: And that is fine. The law is totally fine with that. Okay.
JUROR: Yes.
BOYD YOUNG: Another Juror can have a different reason and that reason is valid too. Okay. And each Juror doesn't even have to have a reason. The jurors can say, I don't have a reason, I just feel like voting for a life penalty. And that is fine too. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: At the end of the day, is a decision about whether or not another person lives or dies is called an individual moral judgment. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: This sort of like choosing what faith is right for you.
JUROR: Yes.
BOYD YOUNG: You have made your own personal decisions about what faith is right for you.
JUROR: Yes.
BOYD YOUNG: And you recognize that other people have made different decisions about what faith is right for them?
JUROR: Yes.
BOYD YOUNG: And you respect their right to make that decision for themselves?
JUROR: Yes.
BOYD YOUNG: You expect them to respect your right to make your own decision about what is right for you?
JUROR: Yes.
BOYD YOUNG: And if you saw somebody being bullied, harassed or belittled, that their individual moral judgment was wrong, would you stop it?
JUROR: Yes.
BOYD YOUNG: Would you send a note out to the Judge saying, that's not right, they are entitled to their opinion and we are supposed to all be respectful?
JUROR: Yes.
BOYD YOUNG: If twelve jurors, in their own individual moral judgments, agree that the penalty be death and Mr. Jones would be executed. Do you understand that?
JUROR: I do, yes.
BOYD YOUNG: And if twelve jurors in their individual moral judgments agreed that life is the appropriate punishment then he will be in prison until he dies.
JUROR: I do, yes.
BOYD YOUNG: The law is that no Juror should ever be forced to give up what they have arrived as their individual moral judgment. Okay?
JUROR: Okay.
BOYD YOUNG: And that they have a duty and obligation to make sure that their individual moral judgment is heard in court.
JUROR: Yes.
BOYD YOUNG: Does that make sense to you?
JUROR: It does.
BOYD YOUNG: One second. One more question. If you were Governor of South Carolina and you got to decide are we going to have a death penalty or not have a death penalty. Where would you come out on that?
JUROR: I think that it should be an option.
BOYD YOUNG: And can you tell me a little bit about what value you think it has?
JUROR: I just feel that in cases where it is warranted that it should be an option.
BOYD YOUNG: And you understand that, I know the Judge told you but the death penalty is never required, not in any case, not the worse case you could imagine, it is never automatic death.
JUROR: Yes.
BOYD YOUNG: There is a formula to arrive at this verdict, it is what each individual Juror feels is appropriate.
JUROR: I understand.
BOYD YOUNG: Okay. Based on the Court's limitations that is all I have.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good morning.
JUROR: Good morning.
SUZANNE MAYES: My name is Suzanne Mayes and as a prosecuting attorney we represent the State in this case so I just have a couple of questions for you. The Judge explained at the outset what the ultimate options would be if this case gets to what we call the second phase of the trial. And in that phase the options would be life without parole, meaning he never gets out of prison or the death penalty. Or both of those options that you can consider?
JUROR: Yes.
SUZANNE MAYES: And after you have heard all of the evidence, if you felt that the death penalty was appropriate could you give the death penalty?
JUROR: Yes.
SUZANNE MAYES: If the jurors were to unanimously decide that the death penalty was appropriate there would be a form along with that verdict, the death verdict, which all twelve jurors must sign. Would you be able to sign your name to a death verdict?
JUROR: Yes.
SUZANNE MAYES: Nothing further.
THE COURT: Anything from the Defense?
BOYD YOUNG: Yes, Your Honor. We would like to be heard.
THE COURT: Okay. If you will step out and we will be right back to you in a moment. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right.
BOYD YOUNG: Your Honor, the Defenses' position that Ms. Girardeau should be disqualified. She is substantially impaired in her ability to follow the law in that she cannot give meaningful consideration to mitigation as instructed by the Court. She said that the background and character of the Defendant was not important to her, it is not something, by not being important to her it is not something that she is going to give meaningful consideration. I would cite to the Court, State v. Bell, Bryan v. Sterling, United States versus Folks, Morgan versus Illinois, Edings versus Oklahoma and Abdul-Kavir versus Quarterman, 550 US 233.
THE COURT: If you have a piece of paper give to her and read from it, that would be hugely helpful to her. I have learned it over the years, hand it to her and then you can read it directly. Every lawyer reads too fast. There is not one that is not guilty of it including one who was a former lawyer sitting right here. Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor. At the outset when you were going through the inquiry with her you explained what the mitigating circumstance may be and gave examples of those. She stated to you that she would consider all of those and that she could consider both, life without parole and death. Ultimately as she was being questioned by the Defense she made it clear that she could give both a life without parole verdict or decision regarding punishment as well as the death penalty. She went on to state that she would consider all factors or she would have to consider the evidence is what my notes show, that the death penalty is warranted in extreme cases. However she would have to hear all the evidence and she gave that response regarding questioning as both potential life verdict and a potential death verdict. The State's position is she is qualified. And, of course, the Court can bring her out at any point and explore that further if need be.
THE COURT: Bring her back in.
(Whereupon, the Juror came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: I have got one other question for you. If you are selected as a Juror in this case, as I described to you, there is going to be a wide variety of testimony presented, evidence presented. There is going to be testimony involving allegations that the State would intend to prove, perhaps taking in aggravating factors. There will be testimony about any of the defenses, testimony about potential affirmative defenses, there would be testimony about mitigating factors, reasons to give life without parole sentence. Can you give meaningful consideration to all that evidence and all of that testimony but also accept the instruction of the Court to how they evaluate and consider and give consideration to those particular facts or testimony. Can you do that?
JUROR: Yes.
THE COURT: Can you give consideration to all of those forms of testimony and act as a fair and impartial Juror?
JUROR: Yes.
THE COURT: I find Ms. Girardeau qualified as a Juror in this case. What that means is you move from panel four, this could go into next week with this same procedure with other jurors. So you are going to check back on the website and look under the tab, qualified jurors to find out when I want you back. So until then you are to follow your oath, don't talk about the case, don't let anybody talk to you about the case and minimize your involvement with communication of social media, public media about discussions, facts, reports on this case. I want you to consider the testimony and evidence and whatnot in the courtroom as opposed to outside. Can you do that?
JUROR: I can.
THE COURT: Will you do that under your oath?
JUROR: Yes.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Yes, sir.
BOYD YOUNG: Your Honor, we note our objection. I know the Court asked her, can you consider everything, all the facts and circumstance and the charge on the law. But when it comes to a Defendant's character and background, I believe she is still impaired and did not think that she could give meaningful consideration. We continue to maintain that she is substantially impaired.
THE COURT: Your objection is noted for the record. Who is next. (Whereupon, Juror 302, David Murphy came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Mr. Murphy.
JUROR: Good morning.
THE COURT: My name is Eugene Griffith, I am the presiding Judge over this case, welcome to the courtroom. I remind you you are under oath and what is going on right now is that the lawyers are and I are asking more particular questions, most particularly I am going to ask you several questions. Under oath to tell the truth. These are more meaningful questions now, this portion will be, like your opinions, really not a wrong answer, just need candor, candid answer. Okay.
JUROR: Okay.
THE COURT: I ask you about your work schedule, personal schedule, you got anything on the horizon. When the jury gets the selection the trial may last two weeks or so. We are looking in going into close to June. You got anything on your personal schedule or agenda that would conflict with that if you were selected as a Juror.
JUROR: The only thing that I have is a father/son golf tournament in Myrtle Beach the third week of July.
THE COURT: I think we are good on that. I have a father/daughter thing on July 13th, my daughter is getting married so I hope to be done by then. I think we are good. Now, I also asked you, you took an oath Monday when you left to not communicate about the case in any manner whatsoever. Did anybody try to talk to you about the case?
JUROR: Well, there has been folks at work talking about the case. They know I am on the jury for this case or possibility be selected for it. Talking about the case.
THE COURT: Did they inquire and ask you if you were a potential Juror?
JUROR: Yes.
THE COURT: And your response was?
JUROR: I had to tell my supervisor what was going on.
THE COURT: That you were summoned in?
JUROR: Yes.
THE COURT: Okay. Other than telling your supervisor that you were summoned in, has anyone talked to you or discussed the facts about the case?
JUROR: No, sir.
THE COURT: Now, there has been media coverage, social media, public media. And I am guessing, unless you are under a rock, couldn't miss it all. Have you seen, heard or anything, whether you have or not, has any of that publicity that you have seen, heard or otherwise, has that affected or caused you to form an opinion has to what happened in this case?
JUROR: No, sir.
THE COURT: Do you have an idea or an opinion of what happened in this case?
JUROR: No, sir. I mean, what happened in the case? I know what happened in the case.
THE COURT: Monday I read the indictments so you know what, the State is alleging there is five children that have been killed. Certainly you know that?
JUROR: Yes.
THE COURT: Aside from that fact, any details?
JUROR: No, sir.
THE COURT: Now, have you had an opportunity to look over the witness list?
JUROR: I have.
THE COURT: And it was rather lengthy?
JUROR: Yes.
THE COURT: Anybody on that witness that you know?
JUROR: I do not recognize one of them.
THE COURT: Not a one?
JUROR: Not a one.
THE COURT: Okay. I am amazed how many jurors have answered that same way. Oh, I didn't tell you, the cameras are off right now so nobody is going to find out who you are. See you on TV or anything, that won't happen, even in the trial, jurors don't get published, don't get photographed. It is against the rules. They get around it by taking my picture a lot. Don't worry about that. Now, I gave you a summary of the criminal procedure, a little bit of the criminal law, how a Capital case proceeds. There are two phases, phase one goes, guilt or innocence. If it is not guilty, one of the affirmative defenses found, the case ends there. The case goes to phase two, there is guilt finding, the State has proved the murders beyond a reasonable doubt, it goes to phase two in the sentencing portion. And during the sentencing portion there are only two choices for the jurors. It is one of the few cases that we have that the jury imposes the sentence, two choices, life or death. No other choices, no middle ground, two choices. One of the two. I sent you a summary of three types of jurors. Did you review that?
JUROR: I did.
THE COURT: And did you understand my instructions earlier?
JUROR: I did.
THE COURT: I read to the group.
JUROR: Yes.
THE COURT: And it was a general discussion, criminal procedure, you understand the two phase, phase one is guilt or innocence, go phase two, gets a guilty verdict, decide punishment. You understand?
JUROR: Yes, sir.
THE COURT: Did you read the types of Juror, can you identify yourself as one of those three types?
JUROR: Yes sir, I am the third type.
THE COURT: The third type. Now, I am going to ask you some additional questions about that. And the lawyers will too, they are coming to come up and ask you in a few minutes. As of the three types, you say you are a third type, that you want to hear everything.
JUROR: Yes.
THE COURT: Now, the, I keep telling jurors. Part of my job is to make certain the trial is conducted fairly and impartially and the main part of my job doing that is, I give instructions on the law to the jury. This is how to consider the evidence that you have heard. Consider it in this fashion. The definition of this is that. I define things and then the jury takes the definitions and aspects of the law and then evaluates the testimony within those parameters. I don't know all the testimony that is going to be presented. Until the witnesses are called in and they start presenting, telling what they saw, did, whatever, I don't know exactly what my instructions will be. If something is not testified to and the facts don't support it, for instance, there is one aspect in here that someone is under 18 and it is a Defendant, then a mitigating factor can be considered on that. That is not going to be the case here so that one will automatically be eliminated. But there are other aspects of my instructions that I will charge and until I hear the testimony I don't know whether it is in or out in the instruction. Okay?
JUROR: Yes.
THE COURT: The testimony presents it and the jury should consider it and then I instruct it. So with that, a little bit of explanation, Mr. Jones has entered a defense called an affirmative defense which means not guilty by reason of insanity. I am going to give you some other defenses that are perhaps testimony to support. Potential defenses would be accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are just all the statutory defenses. The jury decides the weight to give testimony. Now, in the guilt or innocence phase, because he has entered a plea or not guilty by reason of insanity there are four potential verdict forms in the guilt or innocence. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty at all. Those four. Now, facts have been presented. Depending on the facts and circumstances, whatever they are, considering my instructions on the law can you give meaningful consideration to all four of those verdicts, consider the testimony and evidence that has been presented and evaluate that fairly and impartially?
JUROR: I believe I can.
THE COURT: Now, if there is a not guilty verdict in stage one the case stops there, it ends. If it goes to stage two, the State has met its burden of proof in the murder beyond a reasonable doubt. In stage two a couple of things happen. The State presents testimony to prove an aggravating factor. There are numerous, not numerous, several aggravating factors that can enable the State to seek the death penalty. Rape of murder, kidnapping of murder, murder of a police officer, the murder of children, multiple murder victims. Those are some aggravating factors that the State has to prove, they can prove one of those beyond a reasonable doubt. Can you consider testimony of that, meaningful consider my instructions?
JUROR: I can.
THE COURT: All right. Also during the entire trial, can be during guilt or innocence and also during the sentencing portion, if we get there, there are mitigating factors and testimony that can support mitigating factors. There are some statutory mitigating factors, I am going to read all of them. A Defendant has no significant history of prior criminal conviction involving the use of violence against another. The murder was committed by the Defendant while he was under the influence of mental or emotional disturbance. The victim was a participant with the Defendant's conduct and consented. The Defendant was an accomplice in the murder committed by another and his participation was minor. The Defendant acted under duress or domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. That one is not here. The Defendant had mental retardation at the time of the crime. Now, those are statutory. There are others that jurors can consider such as the childhood, broken home, how you were raised up, something happened to you in the past. Mitigating factors are reasons to impose life without parole sentence. Now, can you give credibility, meaningful consideration to testimony, the aspects of mitigating factors, whatever they are and where ever they come from, consider the instructions of the Court and act as a fair and impartial Juror in this case?
JUROR: Yes, sir.
THE COURT: Do you understand the State has got the responsibility to prove guilt beyond a reasonable doubt first?
JUROR: Yes, sir.
THE COURT: If that happens and the jury finds a unanimous verdict on the guilt then it goes to the sentencing side. Do you understand that the death penalty is not automatic, not an automatic verdict?
JUROR: Yes.
THE COURT: Once it gets to sentencing the jury has got two choices, life or death, nothing in between. Do you understand?
JUROR: Yes, sir.
THE COURT: Do you have any personal, moral, religious beliefs which would prevent you from finding a verdict, I am sorry, a sentence of death?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal beliefs which would prevent you from finding a sentence of life without parole?
JUROR: No, sir.
THE COURT: Now this trial involves the death of children. The testimony may be graphic, it will be unpleasant, it may be harsh, it may be difficult to hear. Nobody in here has any qualm, it is not going to be easy. Will you have the ability to consider testimony regarding that type of testimony, you don't have anything personal in your past that would affect your ability to be fair and impartial considering that subject matter will be presented to the Court and to the jury.
JUROR: No, sir. I don't have any problem.
THE COURT: You can do that fairly and impartially?
JUROR: Yes, sir.
THE COURT: Fair enough. Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good morning, Mr. Murphy.
JUROR: Good morning.
BILL MCGUIRE: My name is Bill, Bill McGuire, I am one of the lawyers in the case and as the Judge said, this is our opportunity to talk to you a little bit about your views about the death penalty for the offense of aggravating murder. And I am going to ask the same thing of you that the Judge did, just open, honest, true answers, don't tell me what you think I want to hear, what the Judge wants to hear?
JUROR: Okay.
BILL MCGUIRE: If you were Governor for a day and there was a Bill on your desk or two Bills on your desk and you could sign one, one we would have the death penalty, one we would not. Which one would you sign?
JUROR: I believe I would sign to have the death penalty.
BILL MCGUIRE: You gave that some pretty careful thought. Were you right on the fence or just slightly learning towards having it?
JUROR: Thinking of the circumstances that can warrant that to me, not something you would take lightly per se but I think there are circumstances where that is, that should be the punishment under certain circumstances.
BILL MCGUIRE: It sounds and don't let me put words in your mouth, I am just trying to get out who Mr. Murphy is. It sounds like you consider the death penalty a last resort?
JUROR: Yes, I do.
BILL MCGUIRE: For only the most extreme cases?
JUROR: Yes.
BILL MCGUIRE: And as the Judge said, the case that brings us here today, it is a malicious, intentional killing of multiple children. Not something like an accident or all children are killed together in a car wreck or anything like that. It is just multiple children killed one after another. Is that such an extreme case where you would say that demands the death penalty?
JUROR: I believe so, yes.
BILL MCGUIRE: So in a case where it is intentional killing, multiple children, that is a death penalty case for you?
JUROR: Yes, sir.
BILL MCGUIRE: Okay. And letting someone live out their years in prison with a life punishment, that is not severe enough to punishment that potential killing of multiple children?
JUROR: In my mind, no.
BILL MCGUIRE: And these answers you are giving me, it looks like you are giving careful thought to them?
JUROR: Yes.
BILL MCGUIRE: And they are answers that are under oath?
JUROR: Yes, sir.
BILL MCGUIRE: And you have thought about your answers to make sure they are true and accurate?
JUROR: Yes.
BILL MCGUIRE: They are a reflection of your value system?
JUROR: Yes, sir.
BILL MCGUIRE: Your moral code?
JUROR: Yes, sir.
BILL MCGUIRE: And what justice requires?
JUROR: Yes.
BILL MCGUIRE: When it comes to fixing punishment for this type of extreme case, the intentional murder of children, some folks would say the background of the killer, how he grew up, that sort of thing, would not be relevant in fixing punishment in that extreme case. Would you agree with that?
JUROR: No, it has to be relevant.
BILL MCGUIRE: And how so, why is that?
JUROR: I don't think you can get there without it being relevant. I don't think you can get to that point in your life without something along the way helping, aid you to get there, not aiding you, but influencing you to get there.
BILL MCGUIRE: Okay.
JUROR: I don't believe you can, the way you were, influences are raised where it has to have, there has to be some kind of background to get to that point, to take a life of anybody.
BILL MCGUIRE: Okay. Somebody engages in the act of intentionally killing innocent children, if I hear what you are saying is, something must be going on to get to that point?
JUROR: I think so, something, yes.
BILL MCGUIRE: Now, you heard the Judge say that Mr. Jones has plead not guilty by reason of insanity. Some folks, in fact some folks already in this case have come and sat there and said, not guilty by reason of inanity, that sounds like an excuse, kind of a copout, letting somebody off. Is that your position or does that seem right, would you agree with that?
JUROR: I can't really define insanity.
BILL MCGUIRE: Okay.
JUROR: I am, you know, as far as knowing exactly what the law is, so I can't say that is a copout per se so no. I don't think that is necessarily a copout, if that is the question.
BILL MCGUIRE: Let me give you a little bit more information and or I can get the Judge to define insanity for you. I will give it a shot.
JUROR: How the law sees insanity, I am sure there is a definition of insanity, I have had my own definition in my mind of what does the law consider.
BILL MCGUIRE: What is your definition?
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: That is not a fair question. He said he didn't know.
BILL MCGUIRE: No, no, he says he has the definition in his mind, he doesn't know the legal definition.
THE COURT: I thought he said it the other way.
BILL MCGUIRE: Well, Judge, can I put on the record?
THE COURT: Yes, I had a copy of it and I misplaced it. I am not sure I handed it down to somebody.
BILL MCGUIRE: Well, I will do it.
THE COURT: I don't mind defining again. That is kind of what I was looking for in case you were going to ask that.
BILL MCGUIRE: I tell you what, if I can just--
THE COURT: Y'all have had those copies around. All right. Here we go. All right. The reason the lawyers did that is the Court instructs, the lawyers present facts. First, it is an affirmative defense to a crime at the time of the commission of, I am stammering. Here we go again. Insanity is defined as, at the time of the commission of the act constituting the offense, a Defendant, as a result of a mental disease or defect, lack the capacity to distinguish moral or legal right from moral or legal wrong or to recognize a particular act charged was morally or legally wrong. Now, I am going to go ahead and give you, I talked about guilty but mentally ill. It is slightly different. A Defendant is guilty but mentally ill is, at the time of the commission of the act constituting the offense he had the capacity to distinguish right from wrong or to recognize his act from being wrong but because of mental disease or defect he lacked the capacity to conform his conduct to the requirements of law. Those are the two definitions. Mr. McGuire, now ask your question.
BILL MCGUIRE: Thank you. So you said you had your own impression of what insanity was and now you heard the legal definition. Are they consistent or a little bit different.
JUROR: Pretty consistent.
BILL MCGUIRE: Okay. And you can give meaningful consideration to the verdict of not guilty by reason of insanity if it is supported by evidence?
JUROR: Yes, sir.
BILL MCGUIRE: So, Mr. Murphy, I want to talk to you a little bit about the potential sentencing phase, the Judge talked to you about the punishment phase. And it is very different from what we normally think about a trial. The first phase, the guilty, not guilty part, that is a traditional trial. Do they have the right guy, is he really guilty, that sort of thing, right. And then the sentencing phase, the second phase, it is not a fact decision, it is kind of a moral decision. And all twelve jurors are entitled to have their individual moral judgment, that is how the law describes it. Does that sound fair to you?
JUROR: Yes.
BILL MCGUIRE: And you would expect people in a matter so grave as to whether to take the life of a fellow human being, to kill Mr. Jones, in a matter that grave and important you would expect some disagreement?
JUROR: Absolutely.
BILL MCGUIRE: Okay. And the way the law describes it, once an individual Juror, at the end of the case, after hearing everything and their individual moral judgment and say the life penalty, life in prison. It is wrong and improper for them to give up that position just to join a majority. Does that make sense?
JUROR: That is absolutely wrong.
BILL MCGUIRE: And you would want them to, the law requires them to stick with and retain that individual moral judgment, does that sound right?
JUROR: Yes.
BILL MCGUIRE: Okay. It is actually against the Juror oath, when the Judge gives a Juror oath to try the case on what you hear in the courtroom and somebody after hearing all of that gets to the point where they say their vote is for life, they have to stick with that. Does that sound fair?
JUROR: Yes, sir.
BILL MCGUIRE: We can agree that it would be wrong to coerce or try to force somebody to abandon their position, life penalty and actually kill another human being via execution. That would be wrong to coerce somebody to force them to vote for Mr. Jones death. That would be wrong?
JUROR: I agree.
BILL MCGUIRE: Okay. And the Judge told you and I just will remind you and ask you if you think this is appropriate. The State of South Carolina is always satisfied with a life verdict in any case, in the worst case, in this case. Does that sound right, that the death penalty is never automatic?
JUROR: Yes, never automatic.
BILL MCGUIRE: No Juror could have to or be forced to vote for death?
JUROR: Right.
BILL MCGUIRE: And that sounds fair?
JUROR: Yes, sir.
BILL MCGUIRE: If you saw a situation where a majority of jurors were trying to coerce or force a Juror to vote for death, that the discussions got beyond just civil discourse, that it was true coercion. Could you jump in and stop that?
JUROR: I think so.
BILL MCGUIRE: And one of the things you could do, one of the things that would be available to you would be to pass a note out to the Court, to the Judge saying, coercion in the room, dignity has left the room, respect has left the room, we need to get back to that. Judge, can you help us. You could do that?
JUROR: Yes, sir.
BILL MCGUIRE: That is all I have for you. Thank you very much.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Good morning, Mr. Murphy.
JUROR: Good morning.
SHAWN GRAHAM: My name is Shawn Graham, I am one of the Prosecutors with the State on this case. Understanding that there are classes of aggravating factors that the Judge was talking about that make it a death penalty case plus something else, in this case a child under eleven or multiple deaths. Those are the aggravating circumstances that the State would have to prove above murder. So it is murder and something else. And in this case those are the aggravating circumstances. That is even before you get to the choice to consider whether, that is what makes it a death penalty case. Do you understand that?
JUROR: Yes.
SHAWN GRAHAM: So once you get to that point, let' say the State is able to prove beyond a reasonable doubt that Mr. Jones is guilty, move into the second phase and we prove that one of the aggravating circumstances exist beyond a reasonable doubt to you and the other jurors opinions, so in this case either a child under eleven or multiple deaths. We have got that out. At that point is it your position, you came in and said you were a type three Juror?
JUROR: Yes.
SHAWN GRAHAM: Is it your position that even in those circumstances that you would be able to consider both life and death as a punishment?
JUROR: Yes, sir.
SHAWN GRAHAM: So you ultimate, even if to say, prove beyond a reasonable doubt that he was guilty and proved an aggravating circumstance of a child under eleven or multiple deaths, you could still consider a life sentence?
JUROR: I could after hearing all the information, yes.
SHAWN GRAHAM: You would want to, as the Judge instructed, you want to hear the aggravating, the things that make it worse, the mitigating, things that make it better, a reason or give them life before you would decide between either death or life?
JUROR: Yes, sir.
SHAWN GRAHAM: And you would be able to consider both?
JUROR: Yes, sir.
SHAWN GRAHAM: Mr. McGuire talked to you about individual moral judgment. You remember him using that phrase?
JUROR: Yes.
SHAWN GRAHAM: You do understand though that in, for the jury to reach a decision of life it would have to be unanimous. Or for the jury to reach a decision of death it would have to be unanimous. So you understand that after you heard all the evidence that you and the rest of the jurors would go deliberate?
JUROR: Yes.
SHAWN GRAHAM: Obviously it would be discussions of people's beliefs and thoughts--
BILL MCGUIRE: Your Honor, I would have an objection that we would have to put on the record.
THE COURT: Step outside real quick and have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: What is your objection.
BILL MCGUIRE: Your Honor, Mr. Graham stated to the Juror, do you understand that the sentence to be life would have to be unanimous for life. That is not a correct statement of the law. If the jury ends in disagreement, a non-unanimous jury, the Judge takes the case and sentences to life.
THE COURT: You don't have to tell me the law.
BILL MCGUIRE: You are right, I am sorry. That is my objection. And do you want to know what I propose to do or how to cure it?
THE COURT: Yes.
BILL MCGUIRE: I would like to be able to communicate with this Juror about the jury disagreement and the Judge will take the case and sentence to life to correct that misstatement of the law.
SHAWN GRAHAM: Judge, we would object to him being able to instruct the jury on something. If I did something wrong I would ask for Your Honor to correct it. The only verdicts that the jury can reach, unanimous verdicts they can reach are a verdict of life or a verdict of death. I don't believe that that is a misstatement of the law.
THE COURT: Okay.
SHAWN GRAHAM: If that needs to be cleared up that can be cleared up. Your Honor gave that in the initial instructions about unanimous verdicts of life and death.
BILL MCGUIRE: I agree, it might be best coming from the Court. Judge, can you just give us a couple of minutes to huddle and actually draft the proposal. It won't take long.
THE COURT: Here is what I was, I was huddling right there in my head as y'all were discussing this. If a unanimous verdict is not reached and the Court will give you additional instructions on how to resolve that.
BILL MCGUIRE: That isn't incorrect, the statement, for it to be life there has to be a unanimous verdict. That has to be corrected.
THE COURT: Why didn't y'all come up with this last night.
RICK HUBBARD: Your Honor, this goes way back to our original thing which is why we are objecting to this at all. It is improper.
THE COURT: This is what I am trying to stay away from.
BILL MCGUIRE: This is not our fault, misstatement of the law.
THE COURT: I agree, I agree, quit arguing, sit down and draft your proposal. I don't need additional words to agree with you. You talk me out of it, less is more.
RICK HUBBARD: We will draft one too.
THE COURT: Sure.
(Whereupon, a short break was taken.)
THE COURT: Mr. Hubbard.
RICK HUBBARD: I certainly object to their language because, again, I think you have already ruled on it. I think at the end of the day less is more. And what you have been charging is what the law is, that sentences must be unanimous, whether it is life or death. That is their job. I think the only obligation the Court ever has is to tell the jury what their job is. Once they can't do their job, they don't need to know what your job is. There is no case that says that. In fact, State versus Copeland, just for the record, Your Honor, I know you don't need me to read at length about it. State versus Copeland which is 300 SC 2nd 63, 1982 case. It is proper to charge a sentencing jury that its verdict must be unanimous no matter what the options are. I think you have to charge that. So what Mr. Graham ask was proper law, that is what you are reading to them at the beginning as you are qualifying them. That is proper law. What they are proposing is not supported by law in any case saying that that is what you must do.
THE COURT: Mr. McGuire.
BILL MCGUIRE: For the record, I handed up a handwritten proposal which states, if after appropriate deliberations the jury is not unanimous as to either sentencing option, life without parole or the death penalty, the Judge is required to sentence the Defendant to life without parole. And, of course, that is the one-hundred percent true, accurate statement, basically right out of the statute. And what we have to address, you know, this is very limited to Mr. Graham's statement to the Juror, for there to be a life sentence it has to be unanimous for life. And that is a misstatement of the law. It is not true and if this Juror is not corrected and he is seated, in his deliberations, since he is making up his mind in the case he could be, it is a reasonable probabilty that he will remember Mr. Graham's statement and his belief and view that it has to be a unanimous verdict to have a life sentence would be introducing an arbitrary factor in the deliberations. And if any arbitrary factor comes into the case it is a violation of Mr. Jones Eighth Amendment rights with regard to cruel and unusual punishment. All decisions have to be made properly, not under some false belief. And they have injected that arbitrary factor in this case. It has got to be cured and you can cure it with one sentence.
RICK HUBBARD: And, Your Honor, I guess, just short recap is that and for the record so they know what I have put up in front of Your Honor. It is actually what you have read to the jury, which is a correct statement of the law. In order for the sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to a life without parole sentence then the sentence of life without the possibility of parole will be imposed. That is not a misstatement of the law, can never be an arbitrary factor. Here is the real danger of their proposal.
THE COURT: I understand, I know the danger.
RICK HUBBARD: About watering it down.
THE COURT: Yes. All right.
BILL MCGUIRE: And, Judge, I would just say in Poindexter for our position, that, you know, that the jurors have to be informed with regard to their sentencing, the consequences of their decisions and the results of their deliberations.
THE COURT: Here is what I am going to do. I am going to tell him that if either sentence, some, I am stammering today. If either sentence -- y'all come up here.
(Whereupon, a bench conference was held.)
THE COURT: Bring Mr. Murphy back in. (Whereupon, Juror David Murphy came back into the courtroom.
THE COURT: Mr. Graham, were you finished, you were right at the end.
SHAWN GRAHAM: I was close to the end. I only had one more question after that, Your Honor.
THE COURT: Mr. Murphy, I want to, as I did on the definition of insanity and mentally ill, I want to make certain, I am certain in my preliminary comments to you that I read earlier, I want to go back over those. It is my job to make sure the instructions of the law are correct and I make every effort to do so. But once the case goes past guilty or innocence, there is a guilty verdict found on the guilt or innocence phase, it goes to sentencing from the jury's task with evaluating all the evidence, mitigating factors, aggravating factors the State has got to prove, all the testimony. And they have got two choices, life without parole and death. If the jury unanimously reaches either of those verdicts those sentences are carried out. So if the jury is unanimously life without parole that sentence is carried out. The balance of life, that person is convicted and sentence is imposed. If it is a death verdict, all jurors sign the verdict form, that sentence is carried out. Now, the lawyers have asked you about your individual moral judgment and whatnot. A person has that and people discuss that and banter back and forth. No jury is going to be coerced or made to abandon their moral judgment. So that is just how it is. A person, once they make that decision they are not going to be required to or suggested to abandon that decision. All right.
JUROR: All right.
THE COURT: That is my corrected instruction. Mr. Graham, continue on.
SHAWN GRAHAM: You covered it actually. Thank you, Your Honor.
THE COURT: Anything else, Mr. McGuire?
BILL MCGUIRE: On the record.
THE COURT: All right, step out real quick and we will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I know that is not incorrect.
BILL MCGUIRE: That is not incorrect?
THE COURT: That is not incorrect. I am going to continue to look into other things. But let me hear you on this issue.
BILL MCGUIRE: Sure. Judge, on this issue there is a difference between having an uninformed Juror and a misinformed Juror. In this situation, the statement, the only way there would be a life sentence is if all twelve unanimous for life. That is not true because there could be a life sentence when the jury is not unanimous, the Judge would take the case and sentence. So if it is just an uninformed Juror, we don't tell them anything which is kind of what we have been doing, that is one thing. But affirmatively misinforming a Juror puts an error in the case, there is a reasonable probabilty that he could remember that when he is in deliberations.
THE COURT: He is tasked with accepting instructions from the Court which I just gave him the correct instruction.
BILL MCGUIRE: Sure. But if he does remember the statement by Mr. Graham, the only way it would be a life sentence is if all twelve agree on life. And he brings that up in deliberations he is injecting a false arbitrary factor in deliberations.
THE COURT: All right, you have noted for the record but I believe my correct statement of the law would, at worst, let him hear that also. So he would have to arbitrarily assign a wrong reason and not listen to and not accept the Court's instructions which would be against his oath, correct?
BILL MCGUIRE: Sure. But just for the record, Judge, I would cite Simichik, (phonetic), versus Kelly for the proposition of the jurors should be misinformed and their sentence decision, as well as Poindexter in that allowing the Juror to remain misinformed and--
THE COURT: He has not been allowed misinformed.
BILL MCGUIRE: He was misinformed by Mr. Graham. He was correctly informed by the Court.
THE COURT: Right.
BILL MCGUIRE: But I don't think it went far enough to completely correct it and I appreciate the Court's comments and they are true and accurate. But it didn't go, the next step to say, Mr. Graham indicated that the only way to be life had to be unanimous. That is not true, the jury can disagree and the Judge takes the case and sentences to life. I am not going to kick the dead horse. I cited my cases. Do you want to be heard on whether he is qualified?
THE COURT: Yes.
BILL MCGUIRE: And, Judge, we would move that this Juror be disqualified based on the fact that in the case of intentional killing of innocent children, he indicated the death penalty was the only appropriate punishment. I ask him if the life penalty could be severe enough, hard enough to punish that kind of killing and he said no. He said that is a reflection of his moral code, his personal beliefs, he thought justice required. There wasn't any confusion about that. Based on those answers and how strong he felt them, I would say that he is substantially impaired. And, Judge, what I think we have had is a pretty good line of people that are identifying themselves in the middle of the road. And we have had so many good qualified jurors in the middle of the road, they seem openminded. Why are we going to take a chance and put this guy out and say, innocent children, kill multiple case, I am death penalty, life penalty is not severe enough punishment. That is a reflection of my values, my code, what justice requires. Why take the risk.
THE COURT: Just like we had seven men and one woman on the first one, by chance. We may have a run of other types coming through here and one type or the other. Who knows. All right, Mr. Graham, let me hear you on the qualification.
SHAWN GRAHAM: Thank you, Your Honor. He is qualified under the totality of the circumstances. He came in and said he was a type three. Mr. McGuire got up and asked questions that you said are inappropriate. You are suppose to go with class, instead he went specifics and he led him with, could you consider both but you could only consider this suggesting the answer to him and he replied. When he was faced again later, when I asked him questions, he did. He said he could, in the same situation, in the class of children with a class of multiple murders that he could consider both life and death. He could consider aggravating and mitigating circumstances. I didn't imply what the answer should be, he said it was the only appropriate, said it was an improper question. I mean I didn't think we were going to use the phrase, innocent children. So I think the question was improper the way it was asked. I think that ultimately when he came in to you and to Your Honor and to me when I asked questions, he said he was a type three Juror and he could consider everything and both sentences even in this case.
THE COURT: The Court finds based upon the totality of all the questions and the answers provided by Mr. Murphy that he identified himself as a type three, he multiple times identified him as to wants to hear all the facts and circumstances. And he could consider all of those in reaching a verdict or a sentence. So the Court finds him qualified. All right, bring him back in.
BILL MCGUIRE: Just very briefly to put on the record. We rely on, to seek the evidence but also Morgan v. Illinois and Witherspoon v. Illinois.
THE COURT: Y'all keep reading off that same sheet, give Joy a copy of it. Bring him back in.
(Whereupon, Mr. Murphy came back into the courtroom.)
THE COURT: Mr. Murphy, the lawyers and the Court discussed and found you qualified to be a Juror in this case. That does not mean you will be a Juror, you are qualified as a potential Juror. You move from panel four to a qualified Juror list. The internet, the website will identify and tell instructions to qualified jurors to when I need you back in here. Probably be next week or just watch that website under the qualified jurors, you are to report back at, so and so time on so and so date. And it may not be for a while. It may be, please check back, please check back until you see something. Just monitor that website. Until that time don't talk about the case, don't allow anybody to question you or ask you about the case or suggest anything to you about the case. Do not do any independent research, do not monitor the social media, media sites to try to gather information. Minimize your media contact. I understand there is publicity about the case. I want you to be influenced and make decisions in this case in what you hear in the courtroom and not what is publicized elsewhere. I don't have any control over that, I have control in here. I want you to respect these parties and be a fair and impartial Juror in a fair and impartial trial. So that is your oath to the Court. Can you accept it?
JUROR: Yes, sir.
THE COURT: All right. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a few minutes.
(Whereupon, a short break was taken.)
BILL MCGUIRE: Judge, I have handed to Joy the instructions and we would like to have that marked as a Court's exhibit.
THE COURT: All right, Court's exhibit 72. (Whereupon, Court's Exhibit 72 was marked for identification only.)
THE COURT: Juror 59, bring them in. (Whereupon, Juror 59, Nathanael Brown came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Mr. Brown, I am going to remind you, you are under oath.
JUROR: Yes, sir.
THE COURT: You took an oath Monday when I first introduced myself and I told you, don't discuss the case with anybody, don't let anybody discuss the case with you. Have you done that?
JUROR: Yes, sir.
THE COURT: Anybody tried to discuss the case with you?
JUROR: No, sir.
THE COURT: There have been lots of publicity in this case. Has any of that publicity caused you to form opinions as to what happened in this case?
JUROR: No, sir.
THE COURT: I asked you also to review a lengthy witness list, not all of those witnesses will be called. Those are potential witnesses just in case they need to be called. Are you connected in any way to any of those witnesses?
JUROR: After reading through it twice, no one I know seems remotely from, seems familiar to me.
THE COURT: Now, I asked you to consider your personal schedule, vacation, family obligations that are important or paid for, medical procedures. You got anything on your upcoming schedule for the next several weeks which would cause you a personal issue if you had to reschedule it.
JUROR: The only issue would be that I just started a new job and I would like to keep a good record with them.
THE COURT: What do you do?
JUROR: I work sort of as a document reviewer for a litigation firm.
THE COURT: Okay. Are you in law school?
JUROR: No, sir.
THE COURT: So you look for things in particular?
JUROR: I basically put things where they need to be just to make sure things are organized. It is not the field that I intend to go. I graduated at USC with a Business Degree.
THE COURT: And you have worked with this firm for how long?
JUROR: It will be about two weeks now today.
THE COURT: All right. And if need be and you get selected as a Juror certainly the Clerk of Court can notify them why that your jury service is important in Lexington County.
JUROR: Yes, sir.
THE COURT: I think the lawyers would understand as much as anybody.
JUROR: I believe so.
THE COURT: Okay. Now, you heard my instructions earlier this morning regarding the criminal procedure and process that a Capital case goes through. Do you understand that?
JUROR: Yes.
THE COURT: This is a Capital case because the State is making accusations through indictments against Mr. Jones. He is presumed innocent. The State has got to prove in the first stage the five accusations of murder. The State doesn't meet its burden of proof in the case beyond a reasonable doubt the case ends there. If the State meets that burden of proving the five indictments then the case could go to phase two. And at that time the jury considers the State's proof beyond a reasonable doubt of aggravating factors, has got to prove at least one and then all the mitigating factors which could be considered by the jury, received during the entire trial. Now, would you be able to listen appropriately, meaningfully consider all the testimony in accordance with the instructions on those aspects of the law and act as a fair and impartial Juror?
JUROR: Yes, sir.
THE COURT: Now, I sent another summary of three types of potential jurors, in Capital cases the Courts observe. It is type one, type two, type three. And did you read that form?
JUROR: Yes sir, I did.
THE COURT: Did you understand it?
JUROR: Yes, sir.
THE COURT: It is kind of hypothetical. Presuming that the State has met its burden of proof in the first phase and then yet again, consider all the facts and circumstance, can you find yourself as a potential Juror type?
JUROR: After reading through the three I find it a little bit of difficulty defining myself between type two and type three. Type one is definitely not me but type two, the wording seems to apply that I would not consider all facts. Type three did state considering all facts very clearly. So somewhere in between two and three but mostly leaning on two, that would be my final answer is my type.
THE COURT: Okay. Would you not be able to sign a verdict for the death penalty, could you do that, do you have a religious or moral or personal belief that you could not sign a punishment of the death penalty?
JUROR: I was trying to find a--
THE COURT: Let me tell you this. Your answers, I told y'all earlier, this is part of what I was trying to suggest earlier is there are no wrong answers here. I want candor and so you are not going to give me a wrong answer. I want you to just give me a truthful answer. Okay?
JUROR: I was trying to find the best answer I could to see whether or not I could answer that question, whether or not I could sign away on a death penalty. And to the best of my knowledge, for faith reasons, belief reasons, I normally would say that I am generally very opposed to the death penalty.
THE COURT: He is type two. That is what I was looking for. Not a right answer or wrong answer, I want to know about you. Okay. You are free to go, thank you for coming, good luck with your job.
JUROR: Thank you, sir.
THE COURT: Number 101, are y'all ready for 101?
RICK HUBBARD: Yes sir, Your Honor.
BOYD YOUNG: One thing, Your Honor, and I know that, Your Honor was satisfied that Mr. Brown was substantially impaired and based on his answers to Your Honor. He said he was leaning hard with type two, I totally get that. I don't know where, in his testimony, if his response would have been that he could consider in extreme circumstances. I thought that is where he was going. I don't know. Of course it is up to Your Honor to determine but of course jurors who have objections to the death penalty can serve if they say they could go to consideration which Your Honor knows. I just felt like that he didn't get the chance to answer.
THE COURT: Fair enough. I will be mindful of that.
BOYD YOUNG: Thank you, Your Honor.
THE COURT: Bring him in. (Whereupon, Juror David Connelly came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Mr. Connelly. You live out in Chapin.
JUROR: Yes, sir.
THE COURT: I remind you you are still under oath. I have got several questions to ask you. As I told you, you are under oath to tell the truth. Lots of questions that are going to be asked in here, it is going to be regarding your personal opinions, personal beliefs. So there is not a right answer or a wrong answer, just looking for candid, truthful answers. Okay?
JUROR: All right.
THE COURT: I ask you to take an oath Monday about not talking about the case from that point forward. Has anybody tried to talk to you about the case since then?
JUROR: Not from the public. My wife and my mother, that is all, at home.
THE COURT: Have they discussed the case with you or discussed you on jury duty?
JUROR: I told them I couldn't talk about that but they persisted.
THE COURT: All right. You told them you are not going to talk about the case but they are still curious?
JUROR: Yes, sir.
THE COURT: And have they influenced you or caused you to form an opinion about the case?
JUROR: I have already got my opinion, sir.
THE COURT: And there has been so much publicity about this case several years ago and here recently. Have you formed an opinion as to what happened in this case based upon that or what you have heard on the street?
JUROR: Yes, pretty much.
THE COURT: I told you facts in the original instructions in the courtroom next door, that there were accusations about five murders of children. So certainly I told you that.
JUROR: Yes, sir.
THE COURT: Now, can you tell me if you have formed an opinion, I gave you that sheet that shows the three type of jurors?
JUROR: Type one, sir.
THE COURT: You are type one?
JUROR: Yes, sir.
THE COURT: Can I talk you out of that?
JUROR: No, sir.
THE COURT: Fair enough. That is all I needed, see you later and thank you for your patience. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: 125 is next. Are y'all ready for 125?
BOYD YOUNG: Yes, sir.
THE COURT: Bring them in. (Whereupon, Juror 125, Hope Derrick came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Ms. Derrick, how are you doing today?
JUROR: Good.
THE COURT: I will introduce myself, my name is Eugene Griffith and I am the presiding Judge of this case. I asked you to accept an oath Monday to not talk about the case, let anyone discuss the case with you, try to influence you. Have you talked about the case since Monday?
JUROR: Nope, I have not, I have tried to shut everybody down.
THE COURT: And certainly people may know that you are a Juror, but have you had questions about that from people, just your family?
JUROR: Yes, just like family and work, are you out again, that sort of thing.
THE COURT: And you only told them that you have been summoned for to be qualified as a Juror or not?
JUROR: Correct, yes sir.
THE COURT: Now, there has been publicity in this case, a wide variety of forms. Has any of that publicity that you received or heard or somehow been presented, has any of that publicity caused you to form an opinion as to what happened in this case?
JUROR: I don't know much about the case.
THE COURT: Okay. Now, I asked you about your personal schedule. I am looking for truthful answers and candor. Some of the questions I am going to ask you about is opinions this one is not. Once your opinions are asked for, we want candid opinions. You got anything on your personal schedule coming up over the next, to the end of this month to the first of June which would affect your ability to serve as a Juror, perhaps vacations, upcoming medical procedures or family member or anything like that?
JUROR: Can we readdress a work question here or no?
THE COURT: Sure.
JUROR: So I had mentioned to you Monday that I was self-employed. I am a realtor, I am with Keller Williams but I am 1099 with Keller Williams, like I am a independent agent, I don't have a team or anybody working for me. So my 1099 comes from Kellor Williams, my W2 comes from myself. It is a big concern for me is that I don't have anybody to run my business.
THE COURT: You consider yourself self-employed?
JUROR: Absolutely self-employed. I pay Keller Williams is how it works to be a realtor. I pay them to park my license under their name, to use their marketing, their logo but they don't do--
THE COURT: You pay them a monthly fee?
JUROR: I pay them a monthly fee.
THE COURT: A percentage?
JUROR: I pay them both actually. I pay them a percentage of what I would sell and I pay them a monthly fee to park my license under their--
THE COURT: Under their brokerage?
JUROR: Under their brokerage, right. So my W2 is actually the Derrick Team which I am the sole owner of and the sole employee of. Derrick Team is messed up this week. So I thought I was going to be here Wednesday--
THE COURT: Self-employed?
RICK HUBBARD: Yes, sir.
THE COURT: I am going to excuse you from being self-employed and I am going to thank you for your patience and your participation.
JUROR: Thank you.
THE COURT: Don't talk about the case.
JUROR: Absolutely.
THE COURT: Thank you, Ma'am.
JUROR: Thank you.
THE COURT: Good luck, Ms. Derrick.
JUROR: Thank you.
THE COURT: Who am I missing.
BAILIFF: Number 373.
BOYD YOUNG: They didn't show up at all?
THE COURT: Pretty much. Number 226, bring them in. (Whereupon, Juror 226, Desiree Jordan came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Ms. Jordan.
JUROR: Good morning.
THE COURT: How are you doing today.
JUROR: Okay.
THE COURT: My name is Eugene Griffith, I am the presiding Judge in this case. I introduced myself Monday and I ask you take an oath, you are under oath now, remind you again. And I asked you not to discuss the case with anyone, has anybody discussed this case with you. Have you done that?
JUROR: No, but somebody did say something to me about that there were five involved.
THE COURT: I did too.
JUROR: Other than that I don't know anything.
THE COURT: Has anybody questioned you about the case?
JUROR: No.
THE COURT: Now, other than that one brief discussion or telling somebody or whatever, that you got summoned into court, any other discussions about the case?
JUROR: No.
THE COURT: Now there has been media attention, publicity in this case. Has any of that publicity caused you to form an opinion in this case?
JUROR: I have not seen any actually.
THE COURT: Now, this, I asked you about your work schedule or personal obligation schedule, whatever that may be. If you were selected as a Juror and you were put on the jury could you serve, this case may last a couple of weeks, may not start for another week or so. But the month of May is probably a pretty safe estimate from my perspective of how long it may take but don't know yet. Do you have anything on your calender which would create a huge inconvenience for you if you were selected as a Juror?
JUROR: I don't think so.
THE COURT: Okay. Now, also I ask you about a witness list, did you review the witness list?
JUROR: Yes, I looked at the witness list.
THE COURT: Do you know any of witnesses?
JUROR: No, not that I know of.
THE COURT: You are connected to any of them?
JUROR: Not that I know of.
THE COURT: Now, I read a statement to you, a brief summary of some criminal procedures, definition of a few terms including murder and the statutory definition for murder and explained a little bit about a Capital case and how a Capital case procedure works, understanding there is phase one and if there is a verdict reached unanimous by the jury, either not guilty or guilty. Not guilty the case ends. If it is guilty it goes to phase two where the sentencing of the Defendant would be considered by the jury and the jury imposes two choices, life without parole or death. No other choices available for the jury. Understanding the State has got to prove an aggravating circumstance beyond a reasonable doubt and there will be a multiple other testimony to consider including testimony regarding mitigating factors or reasons to not give the death penalty but impose life without parole. Now, you understood that explanation that I gave?
JUROR: Yes.
THE COURT: And realize now it is a two-step process. Step one guilt or innocence, step two considering mitigating and aggravating factors which the State has got to prove the aggravating factor beyond a reasonable doubt, considering those factors before the jury makes a determination of the sentence, life or death. The death penalty is not automatic, some people have that misconception. Now, I have explained that procedure to you and I also gave you a summary of three types of potential jurors. You don't have any other facts right now before you other than five and children. Mr. Jones is presumed innocent right now. he remains under that presumption and will remain until a verdict is reached, if at all, okay. Can you identify yourself as one of those three types of jurors?
JUROR: Yes, probably number three.
THE COURT: Probably number three. I want to discuss that with you a little bit further because, this is where the truthful answers involve opinions perhaps because you don't know the facts, you know generalities right now and that is where I am going to stay. So understanding there are general facts, nothing specific is going to be given to you today, other than five and they are children, generalities. Now, I am going to describe stage one of the trial, the guilt or innocence side. That has got to be resolved first. If it gets resolved not guilty the case is over, ends right there. During that phase of the trial Mr. Jones has entered a plea, claiming an affirmative defense, an affirmatively defense means he has got to say it up front. He can't not tell the State he is going to seek that and he has done that. There are other defenses that testimony may prove and at that time then the jury would consider those defenses. I am going to read you the statutory defenses. Part of our outline in that instruction was, until the testimony is presented we don't exactly know all the particular facts that may be presented, or the Court consider and yet for the jury to consider. Until we have all the testimony I can't tailor my instructions on what aspects of the law you will need to know or consider. I have an idea of some of them but some of them are unknown to me yet. And once the testimony is presented and then I add to my instructions and that is what the jury gets to hear at the very end. Okay.
JUROR: Okay.
THE COURT: Potential defenses we could hear testimony to, I am going to read them all but some of them will not be applicable and you will, they are pretty obvious and I will explain that later. But potential defenses can include identification, accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. All of those won't apply, some of them could. Could you give meaningful consideration to any and all testimony, instructions of the Court to consider any of those defenses which the Court has outlined and I will define those in my instructions, but consider the testimony and evidence and apply the law as properly as you can and act as a fair and impartial Juror in this case?
JUROR: I would try.
THE COURT: Like you say, the instructions on the law confuses a lot of people, mostly what jurors need is an open mind and commonsense. All right.
JUROR: Okay.
THE COURT: Now, here is another question for you, if the first phase is found guilty and the second phase includes the State's duty and responsibility to prove an aggravating factor. Aggravating factors are these and these are not all of them but a few of them. The State has got to prove at least one beyond a reasonable doubt. Rape in murder, kidnapping and murder, murder of a police officer, murder of children, murder of more than one victim. If the State proves one of those beyond a reasonable doubt they have done the aggravating factor responsibility to then to say, we would like you to consider the death penalty. Once in the sentencing phase, the jury is deciding the sentence, you only got two choices, no in between, life without parole. If the jury reaches a unanimous verdict on that, that is the sentence carried out. If they reach a unanimous verdict on the death then that sentence is carried out. Now, potential mitigating factors that jury's, the jury must consider would be and not all of these apply but if testimony is presented in these the jury gets to consider. Okay.
JUROR: Okay.
THE COURT: The Defendant has no significant history of prior criminal history involving the use of violence against another person. The murder was committed by the Defendant while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. And perhaps even other facts testified to and presented to the jury the jury can consider like family history of the Defendant or how he was raised up, broken family, that type of thing. Obviously the one under 18 at the time, that would not be a mitigating factor because that wouldn't be a fact to present. Those are a variety of the mitigating factors which the jury considers. Now, when considering those factors at the time, in the sentencing phase, if we get to that point, can you give meaningful consideration to all of the testimony whether it be about the crime and elements, aggravating factors, mitigating factors, potential defenses, testimony involving all of that. Can you give meaningful consideration to that type of testimony and accept and apply the law as instructed by the Court and be a fair and impartial Juror. Can you do that?
JUROR: I would try.
THE COURT: And are you hesitant because you are not certain you understand all the aspects of the law?
JUROR: Well, I don't even watch crime things so that kind of stuff really bothers me anyway.
THE COURT: Well, let me ask you this question. One of my other questions is, this subject matter involves the death of five children. The testimony may be graphic, it is going to be unpleasant, it may be very unpleasant at times. Would considering and evaluating testimony and evidence of that type of subject matter cause you not to be fair and impartial to both the State and the Defense?
JUROR: No, but it would probably haunt me for the rest of my life, that kind of thing.
THE COURT: I don't know the facts other than the brief facts that have been presented to me and get ready for trial either. I don't want to represent to you that the facts are going to be okay at all. The lawyers has told me that they are difficult facts. So with that in mind can you be fair and impartial to both sides?
JUROR: Yes but I won't like doing that. Does that make sense.
THE COURT: Yes, ma'am. It does. You are willing but--
JUROR: Yes.
THE COURT: In most cases the jury service, jury's don't volunteer. But civic duty is sometimes imposed upon people but you could do that?
JUROR: If I am imposed upon, yes.
THE COURT: Now, do you have any moral, religious belief, any reason whatsoever that you could not, after considering all the facts and testimony and evidence, appropriate instruction on the law from the Court give meaningful consideration to all of those things, could you, do you have a reason you could not impose a death sentence?
JUROR: I have never been faced with that so I just don't--
THE COURT: I will ask you another way too. Do you have a religious, moral or personal belief that you could not consider a life without parole sentence?
JUROR: No, I could do that.
THE COURT: So you could consider that type of sentence?
JUROR: Yes.
THE COURT: Now, the converse is, could you consider a death sentence?
JUROR: Under the right circumstances, yes.
THE COURT: All right. Now, you understand the death penalty is not automatic?
JUROR: Yes.
THE COURT: Mr. Secor.
CASEY SECOR: Yes, sir.
EXAMINATION By Mr. Secor:
CASEY SECOR: Ms. Jordan.
JUROR: Yes.
CASEY SECOR: How are you?
JUROR: Fine.
CASEY SECOR: Good. I just want to ask a few things of you. And I just tell you that I understand and appreciate the difficulty of this to consider. Just a few things regarding how jurors are to come to their decision in these cases. I would like to go over with you and just ask you if these are principles that you agree with, whether or not you think that you could comply with if you did, in fact, end up on the jury in this case. Is that all right?
JUROR: Sure.
CASEY SECOR: Okay. And the primary thing that I want to tell you, I guess, is that in South Carolina and in the United States the death penalty is never required for any case, not this case, not any case, not the worst case you can possibly imagine. Does that sound like that is right to you?
JUROR: Well, you are telling me it is.
CASEY SECOR: And I promise you that it is the law but I guess, what I would like to know is your personal feelings on these things. The Judge has asked you whether you could comply with the law and of course that is his job and that is appropriate. I am sort of interested more what Ms. Jordan thinks about these things. And if you disagree with them I encourage you to tell me, if you think it should be different, that is kind of what I am interested in.
JUROR: Okay.
CASEY SECOR: But as I said, in South Carolina death penalties are never required for any case and that is because the law is always satisfied with the sentence of life without parole in any case, the worst case you can possibly imagine. Does that sound like how it should be to you?
JUROR: That would be fine.
CASEY SECOR: Okay. And in the penalty phase, as the Judge told you, you would hear evidence of aggravating circumstances and mitigating circumstances. And just to make sure you and I are talking about the same things. Aggravating circumstances would be presented to you by the State and they have to prove them beyond a reasonable doubt and unanimously to all jurors. And they are factors that they are offering to you to try to convince you that death is the appropriate sentence. Does that make sense?
JUROR: Yes.
CASEY SECOR: And then the Defense would present to you what is called mitigating factors. And those are, those have no burden of proof, they don't have to be proven to you, to any degree of satisfaction other than what you determine yourself. And doesn't have to unanimous. And the term, mitigating factor, sounds like kind of a fancy word but it just means any reason to vote for life without parole. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Okay. And it is important that the potential jurors that mitigation is never offered as an excuse or a justification for the crime for which you would have found the person guilty at that point. So it doesn't have to necessarily be tied to what happened, to the murders that occurred. It could be completely separate, it could be something about the guilty murderer's childhood, about his family. And one Juror might say, I think it is mitigating that he has a good relationship with his dad and another Juror would say, I think it is mitigating because I believe he has some mental health problems. And those two jurors could disagree with one another's findings on mitigation but it doesn't matter because you find mitigation for yourself. And mitigation also does not have to be something that is presented to you. You are allowed to find mitigation in any way that you determine, you are empowered to do that as a Juror. Does that sound appropriate to you?
JUROR: Yes.
CASEY SECOR: Okay. And the reason that you are empowered to find it yourself is because the law says that a Juror may vote for a life sentence for any reason, no reason or based on mercy alone. So any reason might be something like we talked about, he has a good relationship with his dad or he has a mental health problem. No reason means, I as a Juror have heard everything, I have considered everything according to my oath and in this case I don't have a reason, but I am voting life, that is your power you have. You are never required to explain it or justify it or even articulate it to anybody. If you consider everything and you just feel life is the appropriate punishment that is what you do. Does that make sense?
JUROR: Yes.
CASEY SECOR: And then finally mercy, meaning that you can hear all the evidence and you could have a Court House full of aggravating evidence and you might even, and say I haven't even found any mitigating evidence, nonetheless I am empowered to bestow mercy and I find it appropriate, and I find it appropriate in this case and that is what I am going to do. Does that sound fair to you?
JUROR: Yes.
CASEY SECOR: Okay. Ultimately when it comes to deciding what verdict you are going to render because each Juror is a Judge in and of themselves in the penalty phase. You come to your own individual moral judgment about what the penalty is. And once you come to your own individual moral judgment you are required to maintain that. You would, of course, talk to other jurors in the penalty phase deliberations and share your thoughts but you have to come to that decision about the penalty of life or death based on your own individual moral judgment and you cannot allow that to be made by somebody else. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: There is times in my life when I have found it hard to stand up for myself.
RICK HUBBARD: Your Honor, I believe he can't personalize.
THE COURT: I sustain that, rephrase that.
CASEY SECOR: Yes, sir.
THE COURT: I have heard you ask the question before so rephrase that.
CASEY SECOR: Some people find it hard to stand up for themselves. But it is very important in this process that there is mutual respect between jurors, particularly at that stage where the decision is made between life or death. And that requires that jurors respect and accept one another's verdicts even if they are not the same. Does that make sense?
JUROR: Yes.
CASEY SECOR: And the law also requires that these proceedings be conducted with dignity and respect and that no Juror should be bullied or threatened into changing their individual moral judgment. And the law empowers you that if you were being bullied or if you saw another person being bullied you have the power to alert the Judge of that by telling the bailiffs that you need to speak to the Judge or sending out a note because the only way for a lawful sentence in this case to be imposed is that each Juror comes to their own individual moral judgment. Does that make sense?
JUROR: Yes.
CASEY SECOR: Okay. Obviously jurors brought into make a decision of this gravity is a tremendous thing to be asked. And I just want to be sure and of course the Judge wants to be sure as well that if you sat as a Juror on a case and you heard a quality and caliber of evidence that convinced you beyond a reasonable doubt that the person was absolutely guilty of a malicious killing of an innocent person and then you went to the penalty phase and you found absolutely that the aggravating circumstances were found beyond a reasonable doubt and that after that you went into deliberations and you talked with your fellow jurors and then you turned inward to arrive at your own individual moral judgment on penalty. And if those circumstances all lined up and in your heart of hearts your individual moral judgment was that death was the appropriate penalty you could vote for the death penalty?
JUROR: Under the right circumstances but it would be hard.
CASEY SECOR: I understand that and I would hope that it would be hard for anybody. And in South Carolina the verdict forms for a death sentence has twelve lines on it and that is the way that the law impresses upon jurors, the gravity of the decision that they are making, that is how we know that it is an individual moral judgment, it is not, the Foreman doesn't just sign it. The verdict that indicates that the sentence would be death requires that each Juror take the pen and sign their name to it. And, again, if all the circumstances were as we just discussed and you were convinced in your heart of hearts, your own individual moral judgment was that death was the appropriate punishment you could sign your name even though it would be difficult?
JUROR: Yes.
CASEY SECOR: Thank you, I appreciate your time.
THE COURT: Mr. Hubbard.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Thank you, Your Honor. Ms. Jordan, I am Rick Hubbard, how are you doing?
JUROR: Fine, thank you.
RICK HUBBARD: Have you ever served on a jury before?
JUROR: No.
RICK HUBBARD: And so all the times to get drawn for a jury, this was a big one.
JUROR: Well, yes. I have gone, yeah, but never been selected for jury.
RICK HUBBARD: Okay. Ms. Jordan, I just want to follow-up on some of the answers you have given and, again, there is no right or wrong answer, more of just you looking inward and saying what you think you can do and what you believe you can do because should you sit over here, you understand that would be a major job?
JUROR: Yes, I do understand.
RICK HUBBARD: And I think you probably agree with me it is kind of unfair in some ways to bring you in here and just have you search your soul and answer questions in a short period of time. Do you agree?
JUROR: It is hard, yes.
RICK HUBBARD: On the issue of the death penalty, have you given a lot of thought to that prior to getting a summons on this case?
JUROR: Probably really not.
RICK HUBBARD: Now, in this case I want to go back and draw on some of the things that you discussed with the Judge and some of your very honest answers. When he talked about aggravating circumstances, there are two primary ones, murder of children under eleven and then more than one murder. Murder plus other murders. Do you understand that?
JUROR: Yes.
RICK HUBBARD: And the Judge went on beyond that and said there is going to be testimony that will get quite graphic, difficult, frankly brutal, brutality towards those victims, maybe what you hear from witnesses, maybe what you actually see. Just determining whether you can take that oath and sit and be that Juror and give both sides a fair trial, can you do that or is that, you think, and you have really searched your soul, going to be too hard for you?
JUROR: It is that, I don't want to have to see those things and experience that. Does that make any sense?
RICK HUBBARD: Yes Ma'am, absolutely.
JUROR: That would just bother me for a long time, I am sure.
RICK HUBBARD: Absolutely and I believe you had mentioned that it might haunt for the rest of your life?
JUROR: I am sure once things get into your head sometimes you can't get them out.
RICK HUBBARD: Absolutely, absolutely. That is just being human, being a caring human. With that in mind, knowing that this case could have an impact on you in your words for the rest of your life, is this the case where you could be that Juror and listen to these things?
JUROR: I really don't want to have to, I am being honest about that. I don't want to have to.
RICK HUBBARD: And, again, right now there are no wrong or right answers so it is not a question you have to, right now, today, right now, what we are talking about is just trying to figure out where you are. And, again, I go back to the unfairness of that because we bring you in that door right there, you walk about ten feet and all of a sudden you are having to think about things and the Judge said, this trial is going to go on for weeks and weeks, it is going to be long and it is going to be a lot of stuff. We just want to know, all of us need to know, if this is the case where you could be that fair and impartial Juror or if you think in your heart of hearts this is going to be too much for you. We just need to know that, that is something only you can answer.
JUROR: I would try to be fair and impartial but I don't want to do it because I don't want to experience that. Does that make any sense.
RICK HUBBARD: It does.
JUROR: I am trying to tell you the truth.
RICK HUBBARD: You are and I don't want you in any way, want you to think I am trying to question that. We are just trying to make sure that once you get here in one of these chairs that you don't go, you know what, I have thought about it more, I can't do this. That is all I am trying to do.
JUROR: I don't want to do it but, you know, you have also asked the other question, would I try to be fair and impartial, yes. But, no, I don't want to do it because of the circumstances. But just being honest.
RICK HUBBARD: And that is good. That is all we can ask you to do. And then the final thing that is really, say that you and these other eleven jurors are in that back room, we are in that second phase, y'all decide that death is appropriate. There is a line for each Juror to put their names on there and it is a verdict form, but as the Judge said, it is like a death warrant. Can you put your name on that?
JUROR: If I came to that conclusion, if I didn't I couldn't.
RICK HUBBARD: I guess that is all we can ask of you. Thank you, Ms. Jordan, I know it has been very difficult but I appreciate you for answering those questions.
THE COURT: Ms. Jordan, step out read quick and we will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: You want to be heard on her?
BOYD YOUNG: No, Your Honor.
THE COURT: The State?
RICK HUBBARD: No, Your Honor.
THE COURT: We are good. Bring her back in.
(Whereupon, the Juror came into the courtroom.)
THE COURT: Ms. Jordan, the lawyers and I have discussed very briefly, you are found qualified as a Juror. You are not on the jury panel, you are qualified as a potential Juror so here is the way it works. The website you can check to find out when to come back in. You are now going to be listed, you are a qualified Juror so you are going to look at that directions of when I need you to come back. It may be late next week but monitoring that box early next week when I need you to come back. Until that time remember my request under your oath, you are not to talk about the case, don't let anybody question you about the case, do not let anything influence you about the case. Minimize the publicity contact, there is publicity out there, it is not relevant to what you need to know in here. Everything you need to know will be in here. The lawyers, witnesses, instructions of the Court will be consistent. Thank you and good luck to you.
JUROR: Yes, sir.
THE COURT: We have 169. And for the record, this Mr. Griffith is not kin to me to my knowledge. Bring him in.
RICK HUBBARD: Your Honor, did y'all say Juror 373, Ms. Sawyer, is not here?
THE COURT: Right. And I have discussed it briefly with the Clerk's staff, I am going to wait until this afternoon and see if we hear from her before I decide what to do. We may get a call momentarily and say, oh by the way, I had an incident that prevented me from attending. So I am not going to jump the gun on that. Are y'all ready on Juror 169?
RICK HUBBARD: Yes, sir.
THE COURT: Bring him in. (Whereupon, Juror 169, Jeffrey Griffith came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: I am going to remind you you are under oath from this point. Your name is Mr. Griffith?
JUROR: Yes sir, Mr. Jeffrey Griffith.
THE COURT: Mine too. I see you are from New Jersey?
JUROR: Yes, sir.
THE COURT: Never been there. To my knowledge you and I are not related so that is fine, not required to be. You are under oath since Monday when I asked you to take the oath and leave and come back. Didn't know when we would get you back in here but here it is Friday so it has been several days. Part of this was, please do not talk about the case, please do not let anybody talk to you about the case. Have you been able to live up to that part of the oath?
JUROR: Yes, sir.
THE COURT: No one has talked to you?
JUROR: No, sir.
THE COURT: You have not talked to anyone other than maybe notifying your employment?
JUROR: I notified my employment that I had to come back today.
THE COURT: Fair enough. Now, there has been publicity about this trial and I gave facts Monday, here are the allegations made by the State which have not been proved or presented to which Mr. Jones has plead not guilty. Has any of those factors, publicity, the Court publishing the facts, the indictments, has that caused you to form an opinion as to what happened in this case?
JUROR: No, sir. I did not know about this case until last weekend.
THE COURT: Really. Okay, fair enough. Do you have anything on the horizon personally on your schedule, vacation, retirement dinner?
JUROR: No, sir.
THE COURT: Grandchild coming, something coming along that if you were such a Juror it would impose on you personally?
JUROR: No, sir.
THE COURT: Other than an inconvenience?
JUROR: It wouldn't be an inconvenience either. I would be paid still, it wouldn't be a hardship but I do know somebody on the list.
THE COURT: Okay. I am getting to that. The jury list, I am sorry, potential witness list, I said jury list, you were on the jury list. Potential list was given to you moments ago to review and you reviewed it?
JUROR: Yes, sir.
THE COURT: And you found somebody that you may have a connection to?
JUROR: Yes, sir.
THE COURT: Who is that?
JUROR: Michelle Gorski, she was also my Guardian Ad Litem.
THE COURT: She was your Guardian Ad Litem?
JUROR: Yes.
THE COURT: Did you go through a domestic matter?
JUROR: I had an uncontested custody case.
THE COURT: So she was on behalf of the child?
JUROR: Yes, sir.
THE COURT: Fair enough. That matter is now resolved?
JUROR: It is still ongoing but yes sir. It was suppose to be resolved but attorney didn't turn the paperwork in so I had to hire another attorney.
THE COURT: Now, you said uncontested matter. So this involves a child of your's?
JUROR: Yes.
THE COURT: And you are not being challenged by the other parent?
JUROR: No.
THE COURT: This is, I did a little domestic practice. You were trying to get secured custody and guardianship of this child so that you can maintain and get the benefit for it and be a parent and that sort of thing?
JUROR: Yes, sir. I have had the baby.
THE COURT: And you are the parent?
JUROR: Yes, sir.
THE COURT: Fair enough. That is Lexington County Family Court is dealing with that for you?
JUROR: Yes, sir.
THE COURT: And Ms. Gorski is the Guardian Ad Litem on behalf of that child?
JUROR: Yes, sir.
THE COURT: Would the fact that she is going to be a witness create an issue for you being fair and impartial in this case?
JUROR: No, sir. I thought she was fair with our reports.
RICK HUBBARD: Your Honor,--
THE COURT: Yes. It might not be the same one. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Let me ask you another question. Did you, the last four of your social?
JUROR: What is the last four,
THE COURT: Tell me this. I have got a history here, did you have an occasion to have a plea in New Jersey some years ago?
JUROR: Yes, sir.
THE COURT: And was that matter now resolved?
JUROR: Yes, sir.
THE COURT: Okay.
JUROR: That was 25 years ago.
THE COURT: Now, I ask a question, some people don't understand it but part of the questions I have to do, one of the disqualifications, is that you?
JUROR: A simple assault.
THE COURT: Did you, no matter what the sentence is imposed, it is my understanding that this, but it was a plea to endangerment of the welfare of children. Is that what you plead to?
JUROR: Contributing to the delinquency of a minor.
THE COURT: Were you held before you made bond before this case was resolved?
JUROR: Yes. Under a year, I believe, around then let go and I was told everything was gone after ten years.
THE COURT: Well, unfortunately that is not the case. South Carolina looked it up.
JUROR: I put it down on my paperwork.
THE COURT: Okay. I take you on your word. Considering the criminal history which has been provided and it is the correct social security and date of birth, ?
JUROR: Yes.
THE COURT: Okay. Y'all want to be heard further on this? I believe this would disqualify you as a Juror.
JUROR: Okay.
THE COURT: Anyway, thank you for coming in. You are free to go. Thank you. This creates an issue for me that I need to deal with. You are off the list.
JUROR: No problem.
THE COURT: Thank you.
JUROR: Have a good day. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We will take our lunch break now. We will be back in an hour, 1:30.
(Whereupon, a lunch break was taken.)
THE COURT: I am going to the second one on the list of this panel. The first one also, we are not calling him out quite yet, not decided what to do with that one, 411.
RICK HUBBARD: You said 411?
THE COURT: 411, yes. Are y'all ready to bring the entire panel in?
BOYD YOUNG: One, I guess, would be that you just go ahead and tell the whole panel about the cameras, everything being off.
THE COURT: Bring them in. (Whereupon, 411, Scott Spigener; 242, Andrew Lewis; 286, Joe Medlock; 306, Franklin Nelson; 272 Jeremy Mason; 260, Carmen Lucas; 179, Tonya Harmon entered the courtroom.)
THE COURT: Good afternoon. Again, I am going to introduce myself, my name is Eugene Griffith. I am presiding over this case. Now, the Clerk is going to place y'all, as a group, under oath. And then each time you come into the courtroom to come give individual presentation, answers these questions, I will remind you you are under oath. Okay. Madam Clerk. (WHEREUPON, the jury panel five was sworn at approximately 1:37 a.m.)
THE COURT: A few preliminary things. As y'all know, I am going to ask you to not discuss the case back in the jury room before you came out. Just what you, when you need to discuss the case I will let you know. I told you that Monday, I want that to be a continuing instruction, don't discuss the case. It is just not fair to discuss the case without everyone present. We are trying to determine whether or not y'all can be qualified as jurors in this case. Additionally, there are a lot of cameras in the courtroom, they are all off. Jurors photograms and names are not allowed to be published or anything like that. So don't worry, rest easy on that, nobody's name is in the paper. The purpose of my instruction today is to bring you in and give you a brief overview and I say, brief, it is, of the criminal process and a few aspects of the criminal law that y'all will be dealing with in this case.
And then you come back in and will give you a list of preliminary witnesses and another sheet for you to review and then you will come in and be questioned about some of your opinions and ideas and explanations. So what we are looking for are truthful answers and candid answers. Some of them are your opinions, I say this and perfectly fine to have an opinion to pull for Clemson Tigers. I would disagree with the opinion, I pull for Carolina Gamecocks. That is an opinion, you can do what you want. It is your individual decision, that kind of thing. That is an example, you are not wrong, you are just truthful. Now, you, as a group have been summoned as potential jurors in the case of the State versus Timothy Ray Jones, Jr. As I said, my name is Eugene Griffith, Jr. and I am the presiding Judge for this trial, I will be presiding over it until it is concluded. Mr. Jones is charged with five counts of murder.
And in South Carolina murder is defined as the killing of another person with malice aforethought. Malice is defined as a person with a wicked or depraved heart, intent on wrongdoing, hatred, ill-will or hostility. The definition of murder particularly excludes any just cause or excuse for the killing. When the State alleges the defense of murder, it must prove murder beyond a reasonable doubt. And when the State alleges the offense of murder with certain aggravating circumstances the State can seek the death penalty. Now before and during the trial a person accused such as Mr. Jones is presumed innocent and he is presumed innocent of each and every element of the crime which he is accused and charged. The State must prove all of the elements of the crime charged by a standard of proof called beyond a reasonable doubt. I will give more of a particular definition later on that, at the appropriate time. In most cases Judges determine the punishment upon a conviction.
But in a Capital penalty case the jury determines punishment. In a Capital case the trial is divided in two parts potentially. The guilt or innocence phase and then if necessary the punishment phase. The first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused person guilty of murder then the trial proceeds into the second phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury considers aggravating and mitigating evidence in deciding the punishment. Those two punishments, are the only two, are life without the possibility of parole or death. Our law in South Carolina does not allow the State to seek that execution if a person is convicted solely of the murder. The State must prove an aggravating factor and the State must prove one of the statutory aggravating factors to the standard of proof beyond a reasonable doubt.
Now even if the State proves murder and an aggravating circumstance jurors are required to consider any mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. Even if no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to life without parole sentence then a sentence of life without the possibility of parole will be imposed. In this case the State has indicted five counts of murder and has notified Mr. Jones that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity. In this case you may hear much testimony and evidence showing many different things. A wide variety of testimony may be presented to you in the trial.
I will instruct you as to how to consider and evaluate the testimony, whether the testimony is defined as evidence of an aggravating factor, evidence of mitigation, that would be any reason to vote for a sentence of life without parole. Evidence of any defenses, evidence of any affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. Until the testimony is presented in full I am not able to tell you exactly what my instruction of the law will be on which of these, but can you and will you be able to accept an oath to meaningfully consider all the testimony and all of the evidence, apply the law as I instruct it and consider the evidence consistent with my instructions. Can y'all do that. That will be the question that I will reask you again when you come back into the court. Now that is a preliminary overview of the procedures and some of the law. Some aspects of law will be defined more later. We will get to that as on as needed basis. But step back in the jury room and we will call out the first potential Juror. And I will ask you aspects about your schedule, what vacation schedule, that kind of thing. Okay. (Whereupon, the jurors were excused from the courtroom.)
THE COURT: All right, the first Juror will be 411, are y'all ready for Mr. Spigener.
RICK HUBBARD: Yes, sir.
THE COURT: He was already reviewing when I came through so I know he has reviewed.
BOYD YOUNG: Is there a Juror missing from that panel.
THE COURT: There was and that was the first one, 110, the first one on the list. That is the one now also waiting to hear from as the panel four.
BOYD YOUNG: Okay.
THE COURT: I am going to accept suggestions on what to do with these folks. Because the Captain over here wants to know what he should do when I direct him to, but decided, but we have got to do something. Bring in 411. (Whereupon, Juror Scott Spigener came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: All right, Mr. Spigener, how are you?
JUROR: Doing well.
THE COURT: My name is Eugene Griffith, once again, and I placed you under oath Monday as a group. And my request at the oath was that you and all the jurors not seek out information or be questioned or ask questions about this case. Has anyone asked you any questions?
JUROR: No.
THE COURT: Have you asked anyone questions?
JUROR: No.
THE COURT: Now understanding there is a great deal of publicity out there, been going on before you were called in and since and during. Has any of this publicity impacted your ability to be fair and impartial, have you formed an opinion as to what happened.
JUROR: No.
THE COURT: I understand, I read the indictments, I presented some facts, the allegations the State made and Mr. Jones is presumed innocent. Have you formed as to what happened in this case already?
JUROR: No, not based on the facts, certainly.
THE COURT: Has any of the media attention, publicity of the media cause you to form an opinion as to what happened in the case?
JUROR: No.
THE COURT: Now, I am going to ask you about your work schedule, personal schedule. This jury selection proceeds I hope to conclude next week. The trial may start the Monday following and that is just a guess, that is my hope. The trial will take, sometime after that, probably going close to June. Is that going to impact anything you have scheduled, perhaps any family obligations, work, vacation trips. I want to know, if you are called to serve as a Juror can you reasonably manage that?
JUROR: Work, I am at a busy point in, negotiated a very large project and starting another. One is HUD project, lots of paperwork. Another is a private construction project.
THE COURT: You and I had a personal conversation about your, you are an engineer, coordinating construction manager type. And so you deal with a variety of contractor, subcontractors, people putting big projects together.
JUROR: Yes, sir.
THE COURT: And so you deal with a lot of folks?
JUROR: Yes, sir.
THE COURT: Now, assuming you are qualified today, next week you are probably free to work because I am going to let you check in on the internet so next week is probably, whether you are qualified or not, you will probably be able to work and just watch the computer when I need you back. Will that help you some and give you about a week's lead time?
JUROR: It will, it will at least help me to start buyout on one project. The other project is in HUD review right now.
THE COURT: As I understand, those will probably involve one more review?
JUROR: About sixty days probably.
THE COURT: Okay. Fair enough. You keep us apprized of that if you are qualified and we will try to see what we can do. That is the only thing over your head is your obligation at work?
JUROR: That and my wife's birthday but other than that, no.
THE COURT: When is her birthday?
JUROR: It is on the which is
THE COURT: Okay. She has her birthday on occasionally?
JUROR: Every year as a matter of fact.
THE COURT: Oh. I understand. All right. Now, I gave you a list of potential witnesses to review. Did you review that list?
JUROR: I did.
THE COURT: Did you notice anybody on there that you know?
JUROR: I did not.
THE COURT: You connected in any way to any of those witnesses?
JUROR: Not that I am aware of, no.
THE COURT: And all the answers you gave on your questionnaire, those are true and correct?
JUROR: Yes.
THE COURT: The lawyers get to review those and I haven't reviewed them all verbatim so I don't know exactly what all of your answers are. Now, I gave you a brief overview of criminal procedure, a few aspects of criminal law and some elements, the charge of murder and whatnot. I have given you, read the indictments into the record on Monday so you know a little bit about the allegation the State is making. I gave you also three types of jurors. And that presumes a couple of different things but presumes that a case gets to stage two and then there is the question of how to impose sentence. Assuming those facts, did you review that?
JUROR: Yes, sir.
THE COURT: Did you, did you understand my instructions earlier?
JUROR: Yes, sir.
THE COURT: Did you understand that sheet of three types of jurors?
JUROR: Yes, sir.
THE COURT: After reviewing that and studying, did you find or could you find yourself as typically falling into one of those three categories?
JUROR: Probably the three.
THE COURT: Probably three?
JUROR: Yes.
THE COURT: You say probably, people are very often don't consider those things but kind of putting you on the spot. I want you to consider it.
JUROR: Yes, sir.
THE COURT: Because, you know, you are at the point now that it is, potentially you could be seated as a Juror sometime next week?
JUROR: Yes, sir.
THE COURT: So you reviewed that but you would classify yourself as a three?
JUROR: Yes.
THE COURT: And that means, you want to hear everything, facts in aggravation, facts in mitigation, facts of defenses, testimony, evidence, see it all?
JUROR: Yes, sir.
THE COURT: And you don't have any preconceived notion of what the punishment should be?
JUROR: No, sir.
THE COURT: But you do understand that if the jury goes to the sentencing phase, the murders are proven, the sentence would be up to the jury. They have got two choices, life or death. Nothing in between, live the balance of your life in jail, executed?
JUROR: I understand.
THE COURT: Those are the two choices?
JUROR: Yes, sir.
THE COURT: Now, I am going to go back and deal with some defenses. There are some defenses I read in my presentation. And there are other defenses and my instruction of the law, which is my job to instruct the law, they can be changed or tailored particularly to a case, depending on how the testimony goes because I have not heard the testimony either. The testimony could go and bring in some aspects of the laws that I have not yet predicted and not knowing that I can't say, okay, I have already got my instructions to the jury ready on this case. I can't say that because I haven't heard the testimony. When the testimony is presented the jury can consider, my instructions would change and be kind of addressing those aspects. I am going to read all of the defenses that are outlined in the statutes right here behind me. Potential defenses that you may hear, I may read one that is not applicable but I am going to read them all.
Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Now, if testimony is presented where some of those aspects of those defenses are presented and one of them will because Mr. Jones has tendered a plea, entered a plea of not guilty beyond reason of insanity. So certainly testimony could be heard in that aspect of the law. Testimony is presented, evidence is presented. The jury will consider that. Can you, I am sorry, there are four potential verdict forms because of that plea. Guilty, guilty but mentally ill, not guilty by reason of insanity and then not guilty at all. Those are the four potential verdicts in phase one of the trial, the guilt or innocence phase. Presentation of testimony, aspects of the defenses, elements of the crime, State's burden, proof beyond a reasonable doubt. Can you give meaningful consideration to all the testimony and the instructions of the law by the Court, give consideration to all the facts and testimony, can you find any reason you could not consider, meaningful consider entering or finding one of those four potential verdicts if the evidence supports it?
JUROR: I could find any one of the four.
THE COURT: Any one of the four. Now, if not guilty is found in phase one or not guilty by reason of insanity the case ends right there. If he is guilty there is a phase two. Then the State is under the responsibility of proving one of the statutory aggravating factors beyond a reasonable doubt. There are several but some examples are death of a policeman, murder of children, multiple victims, rape of murder, kidnapping of murder, things of that sort are considered under our laws aggravating factors. The State has got to prove at least one of those beyond a reasonable doubt. In stage two considering the punishment, also presented consideration and there is no actual burden of proving mitigating factors but mitigating factors are presented. Mitigating factors can be any reason to vote for life, any reason whatsoever. Here are some statutory reasons that jurors can find. The Defendant has no significant history of a prior criminal history involving the use of violence against another person.
The murder was committed by the Defendant while under the influence of mental or emotional disturbances. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another and his participation was relatively minor. The Defendant acted under duress under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. And other non-statutory mitigating factors such as their walk in life, how they were raised, came from a broken home. Anything that the testimony has presented, jurors consider. I read some, some of those obviously wouldn't be applicable like age, over 18. Understanding that jurors consider mitigating factors as reasons to not give the death penalty, give a life penalty, can you give meaningful consideration to mitigating factors considering the testimony presented, the State's testimony regarding aggravating factors, all of the testimony. Can you give meaningful consideration to factors such as that and make a decision fairly and impartially, considering my instructions on the law.
JUROR: Yes, sir.
THE COURT: Now, do you, you understand now that the death penalty in the sentencing phase is not automatic?
JUROR: Yes, sir.
THE COURT: The jury has got to decide it?
JUROR: Right.
THE COURT: And that is a decision the jury makes, a unanimous finding for life, life will be imposed. If they unanimously decide for death, death will be imposed. Do you have any religious, moral, personal beliefs which would prevent you from considering the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, political, personal belief which would prevent you from entering a sentence of life without parole?
JUROR: No, sir.
THE COURT: Can you give fair consideration, meaningful consideration to all aspects of the jury's instructions and the testimony presented by anyone?
JUROR: Yes, sir.
THE COURT: Okay.
THE COURT: Mr. Secor.
CASEY SECOR: Your Honor, may we approach briefly?
THE COURT: Sure, you may. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: We have been asking a series of questions and I try to ask all of them, I forgot one factor and the lawyers remembered I didn't do it. It is a very good question. The allegations in this case involve the death of five children. The testimony in that subject matter, I am informed, will be graphic, unpleasant, perhaps harsh. It will be difficult to see and consider. Nevertheless it has got to be done. And so as, if you are selected as a potential Juror would the fact that that subject matter, very unpleasant testimony, unpleasant facts create an issue for you of not being able to be fair and impartial to both the State and to Mr. Jones?
JUROR: No, sir.
THE COURT: Mr. Secor.
EXAMINATION By Mr. Secor:
CASEY SECOR: I just want to make sure I have got the pronunciation of your last name, it is Spigener?
JUROR: Spigener, yes.
CASEY SECOR: How are you, sir?
JUROR: Well.
CASEY SECOR: I appreciate you being here, I know it is taking up your time and we apologize for that. I just wanted to ask you some things, I am really just looking for your personal feelings and opinions. As it is appropriate, the Judge is asking the questions about you as a Juror and if you were selected for this jury. I want to switch gears a little bit and just ask you your own personal feelings. I don't want you to be incumbered by the thoughts of like you were suppose to do if you are on the jury. I just really want to know how you personally feel. Is that all right with you?
JUROR: Understood.
CASEY SECOR: When, do you recall when this case originally happened?
JUROR: It was a while back, it was several years ago, I think.
CASEY SECOR: Do you remember hearing about it?
JUROR: Yes, sir.
CASEY SECOR: And do you remember how you felt when you heard about it?
JUROR: It is a very sad thing that happened. I mean, no child should ever die.
CASEY SECOR: I would agree. And so sadness, that was your primary--
JUROR: That would probably be, yes sir.
CASEY SECOR: Okay. The Judge talked to you about the possible different verdicts in this case based on the plea that has been entered. Guilty, not guilty, not guilty by reason of insanity and guilty but mentally ill, those are the possible things you would be asked to consider. And the verdicts of guilty and guilty but mentally ill and not guilty by reason of insanity would mean that you found that the person had committed the act. So in the case of a murder, for those three verdicts you would have found that the person killed with malice an innocent person. And what I want to know, because some people, if they believe that the person did the act, killed an innocent person without any excuse, justification or defense, that the verdict of not guilty by reason of insanity somehow sounds like an excuse or that they wouldn't being held accountable. Some people have a biased against the possibility of considering that verdict. And I am not suggesting that you do. I just want to know how you feel about that, does that sound like something you would be open to or does it sound like it would be difficult to consider?
JUROR: Well, we would be charged to consider them all and I would do so.
CASEY SECOR: And I don't doubt that you would. I guess I am asking on a personal level, does that strike you something that is reasonable or--
SUZANNE MAYES: Objection, Your Honor, asked and answered.
THE COURT: I am going to let him go ahead, that will be the last on that subject matter. Go ahead.
CASEY SECOR: Yes, sir.
CASEY SECOR: I am not trying to give you a hard time, I hope that you don't feel that I am. I just want to know, Juror versus your own personal self. You would consider as a Juror, I understand that. Your personal opinions about that, do you have any feelings about it personally about that, considering that verdict in a case?
JUROR: There is, I am sure there is a situation where someone is so insane they don't know what they are doing.
CASEY SECOR: Okay. I appreciate that. I would like to in a little bit about your feelings about the death penalty if that is all right. Or not necessarily just the death penalty but about punishment for crime.
JUROR: Okay.
CASEY SECOR: But I would like to start with a question about the death penalty. If you had the power, for instance, if you were the Governor for a day in South Carolina and you were given the option as the Governor to decide whether or not South Carolina had the death penalty or did not, which would you choose?
JUROR: That would be an appropriate sentence in some cases so it should be available.
CASEY SECOR: And so to you the death penalty serves a purpose in society?
JUROR: Yes, sir.
CASEY SECOR: Okay. And what types of things comes to mind, the purpose that it serves?
JUROR: I think it is an appropriate sentence in some cases. It could be potentially in some cases be also a deterrent.
CASEY SECOR: Okay. I would like to go a little bit more specifically to the category of case that we are here to talk about. And as the Judge told you, the charge in these cases, five counts of murder of children. And as the Judge said, murder in South Carolina is the malicious intentional killing of an innocent person. Malice, of course, being hatred, wickedness, evil. And so in this case or in a case of this category, if a person were found guilty it would mean that the jury, of course, that it happened, five innocent children brutally murdered. And what I would like to know is, personally, how do you feel about the death penalty as being the only appropriate penalty for a person who is found guilty.
SUZANNE MAYES: Objection, Your Honor, to the form of the question and the word, only.
THE COURT: Rephrase that, I sustain that objection.
CASEY SECOR: Knowing the death penalty is never automatic and that the law never requires death. Okay. And knowing in a Capital case a jury has the option of life or death. What I would like to know is personally for you, do you start off at one penalty when you have determined that a person is guilty of the malicious killing of five children?
JUROR: I think you need to listen to the case and understand and then make an appropriate decision following that. You are asking if I have predetermined a view of it and the answer is no.
CASEY SECOR: And I really, I don't want to think that I am trying to get you to say that you are predetermined. I am really just trying to find out personally whether you think when you hear just those facts, I know those are extremely limited, but if you start off thinking that one of them is appropriate, one of the punishments is appropriate just based on that.
JUROR: Well, given the fact that someone has been convicted of murder, certainly in my opinion, is that what you are asking for.
CASEY SECOR: Yes, sir.
JUROR: Certainly life in prison is a given. In that case that is the starting point. However should a situation occur where there was, I may not use the right words, a great deal of malice then Capital punishment is also an option, it needs to be considered.
CASEY SECOR: Yes, sir. And in those circumstances do you believe it is possible that a sentence that life without parole could be a sufficient punishment for somebody who maliciously killed five children?
JUROR: It could be.
CASEY SECOR: It could be, okay. And can you tell me, based on some of the information that the Judge gave you, the types of things that weigh your decision one way or the other, between life or death?
JUROR: It would totally depend on the facts of the case. I mean, suppositions is probably not a good thing, it would have to depend on what the facts of the case are.
CASEY SECOR: Yes, sir. And one thing that I just want to make sure I understand. When you say the facts of the case, do you mean exclusively the facts of the killing or do you mean things beyond the facts of the killing?
JUROR: I think you start with the facts of the killing and then consider those things outside of that. But in an answer to your question. I deal with contracts and facts and figures and those sorts of thing. So in my world we deal with what the contract says. In this case I would believe that to be law.
CASEY SECOR: Okay.
JUROR: And then if there are other factors to be considered then we need to consider those also.
CASEY SECOR: Right. And I don't question that you would do that at all. Again, going back to your opinion though, do you think that the background of a person, how a person grew up, how they were raised, other things about their character, do you believe personally that those types of things are relevant to how somebody should be punished once they have been found of maliciously killing five children.
SUZANNE MAYES: Objection, Your Honor, to the form of the question and the question about relevant.
THE COURT: I am going to overrule your objection and it can be revisited when you get your opportunity. Go ahead, answer the question.
JUROR: Would you reask it, please.
CASEY SECOR: Yes, sir. Again, putting yourself in the position where you believe this person is unequivocally guilty of murdering five children. For you personally does the character, background, how the guilty murderer grew up, things about his life, to you is that relevant to how they are punished?
JUROR: Only as, again, I may use the wrong words. Only as a mitigating factor. First we need to decide if the, if the crime was actually committed and he is guilty of said crime. Above and beyond that that would be a mitigating factor as I understand from the Judge's instructions that we would be charged to consider.
CASEY SECOR: And if I have been unclear about this I apologize but I do, I want you to think about that you have heard all the evidence and you know beyond any reasonable doubt that the person is guilty. There is no question in your mind at this point. For you do those things matter, the background, character, experience of the guilty murderer to you, in your opinion do they matter about how the person is punished.
SUZANNE MAYES: I would object again at this point, Your Honor, I believe that has been asked and answered.
THE COURT: I think it has been asked and answered too. His answer was in the affirmative.
CASEY SECOR: I just want to go over a few things about how the penalty phase operates in a Capital case and just find out whether these things, these are principles that you agree with or disagree with, just your opinion about these things. Did you know that in South Carolina that a sentence of death is never required for any case, not even the worst case you can possibly imagine. Did you know that?
JUROR: Yes.
CASEY SECOR: And do you think that that is appropriate?
JUROR: That it is not a requirement, yes.
CASEY SECOR: That it never can be automatic?
JUROR: Yes.
CASEY SECOR: And that no Juror ever has to sentence somebody to death based on the facts of the case or anything presented at trial.
JUROR: I understand that, that it is not a requirement.
CASEY SECOR: Okay. And the process in the penalty phase, of course the State presents evidence of aggravation, as the Judge told you. It doesn't have to be proven beyond a reasonable doubt to all the jurors unanimously, right. And those are things that the State is offering you as a way of trying to convince you that death is the appropriate punishment, right. And then on the other side you have mitigation, mitigating evidence as you brought up and essentially the definition of mitigating evidence is any reason to vote for life. And this is, of course, after the conviction, right?
JUROR: Right.
CASEY SECOR: But the law empowers each Juror to find mitigation themselves, it doesn't have to be unanimous and it doesn't have to be proven to any standard. So for instance a Juror might say I believe he had a good relationship with his father and that is mitigating to me. No one else has to agree that that is mitigating but that Juror can hold on to that and say, this is a reason I am voting for life. Another Juror might say, the Defendant has a mental health problem and that is mitigating to them and nobody else has to agree. But they can say that is my reason for life and I am voting for life for that reason. And another Juror might say, I have no reason, I am sorry.
CASEY SECOR: I drank too much coffee today, may I get some water?
THE COURT: Sure.
CASEY SECOR: So jurors don't have to agree on mitigation, does that make sense to you?
JUROR: Yes.
CASEY SECOR: And a Juror doesn't even have to have a reason that they can articulate or to put into words or justify. They can just say, I have heard everything, I have considered everything and for me in this case, what is right for me is life without parole and they are entitled to that verdict or to that finding in mitigation. Okay. And jurors, when it comes to the ultimate decision of whether it is a sentence of life without parole or the death penalty, jurors have to make that decision based on their individual moral judgment. And just as sort of an analogy of what an individual moral judgment is, it is sort of the type of thing, like the decision you make of the faith that you follow in your life. That is your individual moral judgment. And other people have individual moral judgments that are different from yours but you respect them because it is their individual moral judgment.
JUROR: Yes.
CASEY SECOR: And you demand respect for your own individual moral judgment from people even though they may disagree with it?
JUROR: Yes.
CASEY SECOR: Some people in situations like this, where there is a very heavy decision to be made and they have to rely on their own individual moral judgment, some people are stronger about standing up for themselves than others. Do you agree with that?
JUROR: Yes.
CASEY SECOR: Okay. And the law regarding penalty phase deliberations says that once a person arrives at their individual moral judgment they may not abandon it. You, of course, talk to your fellow jurors during deliberations but you have to make the decision yourself based on your own individual moral judgment and you can't have that determination made by somebody else and you can't be bullied into what your individual moral judgment is and you can't be bullied out of what your individual moral judgment is. Does that make sense to you?
JUROR: Yes, it does.
CASEY SECOR: And it is important for the process to go according to law that jurors demand respect to their own opinions but they also watch out for people who may not have the same fortitude as you have. Does that make sense?
JUROR: Yes, sir.
CASEY SECOR: And if you saw somebody being pressured or bullied out of their individual moral judgment could you stand up for that person and say, no, they are entitled to it, we have to follow the law and make sure that they weren't bullied out of their individual moral judgment.
JUROR: I think we have to follow the laws so in the answer to your question, yes.
CASEY SECOR: Okay. Can you, again, I know we are operating on very little information. I apologize for that but that is how the restrictions we have on us right now. Can you envision a case where the character and background of a Defendant could be a reason to give life, in your opinion, even though you found him guilty, the character and background could move you to say, yes, life is the appropriate punishment?
JUROR: It could.
CASEY SECOR: Okay. Just one last question, sir. Correct me if I am wrong but I think when the Judge was asking you about the type one, type two and type three. I believe your response to him that you are probably a three?
JUROR: The phrase would be this situation -- three would be the answer.
CASEY SECOR: Three would be the answer. And is it, if you were, I know you are a three and I accept that. But when you were deciding between whether you were three and whether you were a one or a two, were you leaning -- the possibility of being one or the other?
SUZANNE MAYES: Objection, Your Honor, asked and answered.
THE COURT: I will let him answer it.
CASEY SECOR: Does that make sense?
JUROR: No, I was, I clearly made a decision that I was a type three Juror, according to that description.
CASEY SECOR: Okay. Thank you, sir.
THE COURT: All right, Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Mr. Spigener, just a couple of questions for you. And my name is Suzanne Mayes and as a Deputy Solicitor we represent the State in this case. As the Judge explained, if this case gets to a second phase of the trial there will be two options, that being life without parole and that being the death penalty. After you have heard all the evidence, if you felt that the death penalty was appropriate could you give the death penalty?
JUROR: Yes, ma'am.
SUZANNE MAYES: With the death penalty, if that were to ultimately be a decision reached in the jury room, with that verdict form there is a sheet where each Juror must sign acknowledging that, their decision is to render a sentence of the death penalty. Could you sign your name to that form?
JUROR: Yes, ma'am.
SUZANNE MAYES: Thank you, Mr. Spigener.
THE COURT: Anything further for Mr. Spigener?
CASEY SECOR: No, sir.
THE COURT: Anybody want to be heard on Mr. Spigener?
RICK HUBBARD: Nothing from the State.
CASEY SECOR: No, sir.
THE COURT: I didn't think so. Mr. Spigener, the Court has determined, based upon your responses that you can be and now are determined to be a qualified Juror. What happens from this point forward, remind you you are under oath and stick to it, don't talk about the case, don't allow anybody to talk to you about the case. Do not do any independent research. I understand you have got a busy job. Don't do any research. There is a lot of publicity out there, minimize the impact of that by not paying attention to it, not reading articles on it, not listening to the news broadcast of it. I will ask when you come back has that affected you, can you still maintain an open mind and not form an opinion. It will be a week or so before I see you.
JUROR: Right.
THE COURT: Watch the county website and you are now under the listing as a qualified Juror, qualified jurors please report back on or please check back. Sometime next week you will see when I may need you. When the website says come back in please come back in. Can you do that?
JUROR: Yes, sir.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: 179, bring them in. (Whereupon, Juror 179, Tonya Harmon came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: You are Tonya Harmon.
JUROR: Yes.
THE COURT: My name is Eugene Griffith once again. I have got several questions. I remind you you are under oath. I gave you those instructions on Monday. Many of the questions you may be asked now will be personal opinions you may have. There is no right or wrong answers. The Court and the lawyers are looking for candid, to be candid and truthful.
JUROR: Okay.
THE COURT: Since Monday has anybody tried to contact you about the case?
JUROR: No, sir.
THE COURT: Has anybody asked you any questions about the case?
JUROR: No, sir.
THE COURT: Have you asked or sought out any information or talked to anybody about the case other than telling somebody you had to report to the Court House?
JUROR: No, I just told my husband I was returning.
THE COURT: Fair enough. Now, you have anything on the calendar over the next several weeks because if you are qualified as a potential Juror, we might start the trial Monday a week. I have got more jurors to talk to next week. So about a week later.
JUROR: Nothing that would keep me.
THE COURT: So your calendar is fairly open?
JUROR: Yes.
THE COURT: Subject to the inconvenience of being a Juror, everybody will have that. But you don't have any vacation plans that you have prepaid?
JUROR: No.
THE COURT: Fair enough. So you could do it if selected?
JUROR: Yes.
THE COURT: Very well. Did you have an opportunity to review the potential witnesses. I have one right here if you need to look over it.
JUROR: I have reviewed the list, yes.
THE COURT: Anybody on the witness list that you know?
JUROR: No, I don't recognize any of the names.
THE COURT: So none of those names are familiar to you?
JUROR: No, sir.
THE COURT: I gave an overview of the criminal process, procedure, aspects of some of the law. I also published Monday the indictments to which Mr. Jones is presumed innocent of all of those accusations made by the State and that presumption of innocence stays with him until a jury reaches a verdict. So he is presumed innocent sitting right there.
JUROR: Yes, sir.
THE COURT: Now, a Capital case is a two step process. Step one, phase one of the trial, only determine guilt or innocence of murder. Guilty or not guilty. If it is a not guilty verdict or not guilty by reason of insanity the case is over, it ends, it stops right there. If the burden of proof is met by the State and there is a guilty verdict, guilty but mentally ill it goes to step two, the sentencing phase. At that time the State presents evidence of the aggravating factors which they must prove one of those. There are several things that make the State to prove, in order to seek the death penalty, murder of a police officer, rape of murder, kidnapping of murder, murder of children, multiple murders. Those are aggravating factors defined by our statutes. The State must prove at least one of those in order to be able to say, please sign, issue a verdict of the death penalty. They have got to prove that aggravating factor beyond a reasonable doubt.
And during that sentencing side there is also consideration by the jury of other testimony called mitigating factors. Now, some mitigating testimony may come out in the guilt phase. Testimony can come from any type. During the sentencing side, more mitigating factors will be presented, maybe the Defendant's background, how he was raised, things like that. Mitigating factors are any reason whatsoever to not give the death penalty because, give the life without parole sentence. Now, understanding that will be in front of you if you are selected as a Juror during the sentencing phase, we have very, very slim facts, accusations of five murders, not guilty, presumed innocent. Assuming the State proves the guilt of the murders and then yet again has to prove a aggravating factor. I have a list of three types of potential Juror types. Have you been able to read that potential jury type?
JUROR: Yes, I read all three.
THE COURT: Can you identify yourself as being one of those three types?
JUROR: Yes, I can.
THE COURT: What type would you be?
JUROR: I am type three.
THE COURT: You are type three. Type three means you can't make up your mind until you hear everything?
JUROR: Correct.
THE COURT: That is how you are?
JUROR: I believe every situation is different and so you can't umbrella a blanket.
THE COURT: Now, another aspect in this case that makes it slightly different. Mr. Jones has entered a plea of not guilty by reason of insanity. There are defenses allowed in criminal cases. I am going to read a few of them. The reason I am doing this, sometimes testimony comes out that would allow for a defense to be submitted to the jury and so I have got to instruct on some of the aspects. Some of these may not be out there at all. But these are the statutory defenses that he may have that are allowed if the testimony can support, the Court will instruct and the jury can consider. Knowing there are some aspects of the testimony, which I am not aware of yet, I have to wait and hear the testimony to then tailor my instructions to that jury as to what they have heard and what they may consider. Okay. Potential defense may be identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are all allowable potential defenses. If there is testimony presented and the Court gives appropriate instructions you can consider those types of defenses. In this case can you consider all of the aspects of the instructions, fairly evaluate the testimony and evidence and reach a verdict on any one of guilty, not guilty by reason of insanity, I am sorry, guilty but mentally ill, not guilty by reason of insanity or not guilty. All four of those verdicts are on the table in this trial. Can you consider them all?
JUROR: Yes, sir.
THE COURT: And follow the instructions of the Court?
JUROR: Yes, sir.
THE COURT: All right. If not guilty is found the case ends. If a guilty verdict is proven by the State beyond a reasonable doubt it goes to phase two. Then there is, the jury gives consideration of mitigating factors. That is testimony, facts you may see or hear during either part of the case but you can consider. Jury's can consider mitigating factors, the State has got to prove a statutory aggravating factor in order to say, please consider the death penalty. If they do then the jury considers the testimony of the aggravating factors, makes a decision but also they can consider mitigating factors. Mitigating factors potentially you could hear, some of these aren't always shown in the trial. I will give them to you and then come back and ask you a question. The Defendant has no significant history of prior criminal conviction of the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbances.
The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice to a murder committed by another and his participation was relatively minor. The Defendant acted under duress under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime or any aspect of, being raised, a broken home, any aspect whatsoever in their walk in life. Those are reasons or mitigating factors, the jury can consider all of that. So can you give meaningful consideration to aggravating factors as well as mitigation factors, considering my instructions on the law and evaluate those in that type of testimony and evidence.
JUROR: Yes, sir.
THE COURT: You can?
JUROR: Yes.
THE COURT: Now, do you have any religious, moral, personal belief or any reason whatsoever you cannot find a person for the punishment of the death penalty?
JUROR: I do not have any religious opposition.
THE COURT: To the death penalty?
JUROR: To the death penalty.
THE COURT: No opposition?
JUROR: No.
THE COURT: Do you have any religious, moral or personal belief that given, that you could not find, if appropriate under the circumstances, a life without parole sentence? Could you do that?
JUROR: Yes, I could.
THE COURT: And so can you be a fair and impartial Juror and consider all of the testimony and instructions of the Court and fairly and impartially give the State a fair trial and Mr. Jones a fair trial?
JUROR: Yes, sir.
THE COURT: Okay. I gave you the allegations, this is accusations made by the State regarding the death of five children. There will be testimony, evidence consistent with that type of subject matter, it will be graphic, perhaps harsh, unpleasant, difficult. Would that subject matter and hearing testimony about that subject matter make it difficult for you to give the State and the Defense a fair trial in this matter?
JUROR: No, it would be difficult to hear but, it would not.
THE COURT: You could still be fair and impartial?
JUROR: I would be fair and impartial.
THE COURT: Very well. All right, Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, Ms. Harmon. This is Ms. Harmon, right?
JUROR: That is correct, yes.
BILL MCGUIRE: And my name is Bill, Bill McGuire, I am one of the lawyers in the case and this is the opportunity the Judge gives us to have a conversation with you about your views of the death penalty for the offense of aggravating murder.
JUROR: Yes, sir.
BILL MCGUIRE: If you found yourself to be Governor for a day and you had a Bill on your desk and the Bill would say we could either have the death penalty, keep it around or not have the death penalty. Which way would you sign?
JUROR: Not have the death penalty.
BILL MCGUIRE: Okay. So you have some reservations about the death penalty?
JUROR: In certain circumstances, yes.
BILL MCGUIRE: I mean do you think it has been mis-implied or used too much or maybe in a racial discriminatory manner or something like that?
JUROR: It is a possibility but I don't know of any specific cases but the potential is there.
BILL MCGUIRE: Okay. Well that is true. It is there. But if I heard you correctly with the Judge you could, under the current law, which is we have the death penalty, you could consider a death sentence?
JUROR: I would consider, yes.
BILL MCGUIRE: Could you consider a life sentence?
JUROR: Yes.
BILL MCGUIRE: And with regard to the concept of mitigation, the Judge talked to you a little bit about, mitigation is really just any reason to vote for the life penalty if you want to. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: And in a Capital case the Judge talked to you about the first phase, the guilty, not guilty part. It is just like any regular trial you see on TV or in the news, it is just plain ole, do they have the right guys. Okay. And the sentencing phase is an extremely unique and different procedure and it involves a lot of individuality. And I am going to explain that part to you now if that is okay.
JUROR: That is fine.
BILL MCGUIRE: And if I lose you you just stop me and say, could you repeat that or I didn't quite understand it.
JUROR: Okay.
BILL MCGUIRE: And when I say individuality, the sentencing decision is not a question of fact, it is sort of a moral judgment. That is how the law describes this, individual's moral judgment. And twelve jurors are allowed to have their own individual moral judgment. Does that sound fair?
JUROR: Yes.
BILL MCGUIRE: Even if they are all different?
JUROR: Yes.
BILL MCGUIRE: Or you could have, one person here could say, I saw something in the case and I saw a spark of humanity there, hope of redemption, maybe a Defendant's relationship with his dad. And that person could say that resonated with me and I am going to give him the whole weight of voting for life. And that is my position, I am not going to sign a death warrant for this person. And that is my individual moral judgment. And then another Juror, a different Juror could say, well, I saw a mental health issue and I am not going to vote for death for somebody who I think has got a broken mind, I am not going to -- that is my individual moral judgment, that is my position, I am going to vote for life and you can see how their reasons are different. Does that make sense?
JUROR: Yes, it does.
BILL MCGUIRE: Okay. And they don't have to agree, all twelve jurors don't have to agree that somebody has this certain piece of mitigation evidence or not. Each individual Juror can pick anything they want and that is their reason and they are allowed to have it. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Okay. And once a Juror reaches their individual moral judgment, if it would harm their conscious to change that position they are required under the law to stick with their individual moral judgment, their position and not give it up, not abandon it. Does that make sense?
JUROR: It does.
BILL MCGUIRE: Okay. And it would specifically be wrong and unlawful and against the Juror oath for somebody to abandon their individual moral judgment just to go over to the majority side, just for the sake of joining a majority. Does that make sense.
JUROR: It does.
BILL MCGUIRE: And that would be wrong?
JUROR: Yes.
BILL MCGUIRE: Does that sound wrong to you?
JUROR: No.
BILL MCGUIRE: It does sound wrong?
JUROR: It does not sound wrong.
BILL MCGUIRE: So if you were in a situation where eleven other people wanted to go one way and your position was--
RICK HUBBARD: Objection to this question and this goes to exactly where my position has been.
THE COURT: He said he is going to ask a different question. I sustain your objection, ask that question again.
RICK HUBBARD: Thank you, Your Honor.
BILL MCGUIRE: If there are eleven people and they had a position and you were one and you had a different position would you say, even though my moral judgment is here there are eleven people over here so I am going to join them because they must be right. Does that sound like something you would do or does that sound right?
JUROR: No. You stick by what you decided, that is required.
BILL MCGUIRE: I probably just-
JUROR: I got a little confused. No, you stand by your decision.
BILL MCGUIRE: Okay. We are on the same page. Sorry if I got a little confusing. Okay. So we can agree that once a Juror reaches their individual moral judgment, even if they are in the minority, you would say stick to it, you have to stick to it, just abandoning your position just to join the majority, that would be wrong. You and I are on the same page there.
JUROR: Yes.
BILL MCGUIRE: And in jury deliberations we expect civil discourse. But if you saw a Juror who came to their position, let's just say they wanted to vote for the life penalty and others were being coercive, trying to force the person to come over to their side could you stop that?
JUROR: That would be the same thing they are doing.
BILL MCGUIRE: What do you mean by that?
JUROR: If they are trying to convince someone to do something and then I try to convince someone to do something I am doing the same thing they are doing.
BILL MCGUIRE: Well, actually what I am asking is. If you saw a Juror and they say, you know what, I have my own reason, I do not want to sign a death warrant, I don't want to put my name on it, it is not right for me, my individual moral judgment is life. And you saw people, despite the fact that they said, I have my individual moral judgment, it would harm my conscience to change it. And you saw people being coercive, trying to get that Juror to basically violate the Juror oath and join the majority for the sake of joining the majority, would you stop that act?
JUROR: If they were not following the guidelines and breaking their oath then I am sure there is a way to bring it to someone's attention.
BILL MCGUIRE: And actually what you could do is, you could write a note out to the Judge--
RICK HUBBARD: Your Honor, we need a question.
THE COURT: Ask a question.
BILL MCGUIRE: You just said if there was a way to do that. If you were able to, and I am telling you that you are, if you are able to write a note out to the Judge and just say, Judge, it has gotten beyond civil discourse, it is coercive in here. There is an effort to get somebody to harm their consciousness and give up their position. Could you help us get civility back in here and dignity back in the courtroom or the deliberations room. Could you do that?
JUROR: Yes, that could be done, yes.
BILL MCGUIRE: You would be comfortable doing that?
JUROR: Yes.
BILL MCGUIRE: Would you agree with me that it would be wrong to force a Juror to cause the death of a another human being when they did not want to kill somebody?
JUROR: That is just the same thing again. Trying to convince someone of something against their morals and that would be against the oath, correct?
BILL MCGUIRE: Exactly. So, right, so if somebody said I do not want to cause the death of a human being and you saw an effort to try to get them--
RICK HUBBARD: Your Honor, ask and answered.
THE COURT: That has been asked and answered. She is comfortable with her responsibility.
BILL MCGUIRE: So one of the rules, the procedures in South Carolina is if the jury does render a death penalty verdict all twelve jurors have to sign their name to a piece of paper saying they all, that is the verdict of all of them. Could you do that?
JUROR: Yes, sir.
BILL MCGUIRE: That is all I have. Thank you.
THE COURT: Solicitor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Harmon, I am Rick Hubbard.
JUROR: Yes, sir.
RICK HUBBARD: Thank you for coming in today. Just have a few questions. I noticed and you are just giving honest answers so there is no right or wrong answers. We are just trying to get to know you and also you are kind of getting to see the process. So we are all getting to know one another and what is going on. When you were asked that if you were Governor for a day and you had two options. A Bill that said we are just going to have life sentences from now on or one that said we will continue to have death penalty as an option. I believe your answer was you would do away with the death penalty or did I misunderstand you?
JUROR: I think it was, I presented it like it was like an either/or.
RICK HUBBARD: Okay.
JUROR: To give a choice of this one or that one.
RICK HUBBARD: I see. Let me ask it a different way. If you were Governor and you could keep the law that we have now, where we have the option of life or death or just life. What would you choose if you were Governor and in control?
JUROR: I would leave the law as it is now.
RICK HUBBARD: Okay. That clears that up for me. I appreciate that, thank you. I may very well have misheard that. Now we understand one another. I appreciate that, thank you. You were asked about would you consider life, would you consider death and then a lot of discussion went into what would you do as a Juror with your own personal moral beliefs and your own opinions. But as a Juror, would you also be willing to enter into discussions to find out what everybody else's views were?
JUROR: Yes. To discuss, to voice opinion and open table and discussions as far as, just discussions, absolutely.
RICK HUBBARD: And obviously on difficult issues sometimes people have, you know, a lot of ideas but would you be willing to give your opinions and your thoughts?
JUROR: Yes.
RICK HUBBARD: Would you be willing to listen to those of others?
JUROR: Yes.
RICK HUBBARD: And sometimes, without bullying, people might learn something from one another. Is that fair to say?
JUROR: Yes, it is.
RICK HUBBARD: Would you go into the jury room with a hard opinion or would you listen to others before you finally make a decision?
JUROR: I tend to make my decision and usually stick by it. In this case it would be the facts and the verdict and then you have the, what is it, the mitigating evidence to consider. But generally I don't get talked out of my decision. I generally know after the facts.
RICK HUBBARD: Okay. So you are not the type of person who would really have to be persuaded to have an opinion?
JUROR: No, sir.
RICK HUBBARD: Whether it was really persuaded to go with life or really persuaded to go with death?
JUROR: No, I don't tend to be persuaded.
RICK HUBBARD: And knowing that, let me ask you this because I don't really know if it was asked in this way. If you thought life was appropriate would you actually vote for life?
JUROR: If it was appropriate, yes sir.
RICK HUBBARD: And if you thought death was appropriate could you not only consider that but actually vote for death?
JUROR: Yes, sir.
RICK HUBBARD: And as you were asked, what is unique about a death penalty case is, when there is a death verdict all twelve jurors have to signify that so we all know all twelve people came to that unanimous decision. Could you put your name on there with other jurors?
JUROR: Yes, sir.
RICK HUBBARD: That is all I have for you. Thank you so much for coming in today.
BILL MCGUIRE: Nothing further, we don't have anything further.
THE COURT: All right. Ms. Harmon, thank you for coming today. Now, I will give you a few more instructions. The Court has determined that you are a qualified Juror. So the website you were checking to find out when to come back in, you are now under the qualified Juror. So you look at that, it may say next week, it may say please check back. You are qualified so you will follow the direction of please check back or please report back to the courtroom on such and such a date. Until that time do not let anybody contact you about the case, do not ask questions to anybody about the case. Do not do any independent research, do not, minimize the viewing of publicity, the perusing of that. I know that is difficult but I want you to be influenced and make your decision solely on what is presented here. As a group, jurors, the Court, lawyers get to see all at one time. I want you to be impacted and influenced and make your decision as your oath requires based on what is here. Can you do that.
JUROR: Yes, sir.
THE COURT: I wish you well and we will see you back probably Monday a week. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We will take a break.
(Whereupon, a short break was taken.)
THE COURT: All right, are y'all ready for 247?
CASEY SECOR: Yes, sir.
THE COURT: Bring him in. (Whereupon, Juror 247, Andrew Lewis entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Mr. Lewis. My name is Eugene Griffith once again. I am the presiding Judge of the case. When you were here Monday in the other Court House, I asked everyone to take an oath and when you came back I am asking about your communication about the case. The oath was, please do not communicate about the case with anybody. Have you lived up to that oath?
JUROR: Yes, I have.
THE COURT: Has anyone tried to communicate with you about the case?
JUROR: No.
THE COURT: Have you communicated in any fashion?
JUROR: No.
THE COURT: Considering this case, there is multitude amounts of publicity. Has any of that publicity caused you to form an opinion about this case?
JUROR: No, sir.
THE COURT: There were facts that I gave regarding the indictments and allegations made in the indictments. So you know a little something about the case. The State has made accusations of five counts of murder in this case. Have you formed an opinion as a result of knowing those accusations?
JUROR: No sir, I don't know much.
THE COURT: Now, I ask you now, hoping to get the jury organized by the end of next week. Do you have anything on your calendar upcoming, the trial will start Monday a week, Monday after Mothers Day. You got anything on your schedule, personal or business or family or whatever.
JUROR: Memorial Day, that is about it.
THE COURT: Memorial Day, everybody has that. You planning on going out of town?
JUROR: Yes, sir.
THE COURT: Where are you going, the beach?
JUROR: Yes, I am going to Savannah and St. Augustine.
THE COURT: Okay. It sounds like honeymoon?
JUROR: No.
THE COURT: Okay. Now, other than that, you got anything else that would prevent you from being a Juror in this case?
JUROR: No, sir.
THE COURT: I gave you a list of witnesses, potential witnesses in this case. Did you review that witness list?
JUROR: I did.
THE COURT: And those witnesses all will not be called, most of them will be but not all of them. Potential witnesses have to be disclosed so that jurors can say, I am not connected to them or I am connected and that may create a problem. Did you know anybody on the list?
JUROR: The eight pages I read I knew nobody.
THE COURT: And you are not from South Carolina?
JUROR: No, sir.
THE COURT: You are from Dallas?
JUROR: Yes.
THE COURT: You are a Cowboy's fan?
JUROR: I actually don't watch sports at all which is weird but I don't.
THE COURT: Okay. No contact with any of the witnesses whatsoever?
JUROR: No, sir.
THE COURT: Now, I gave you some preliminary instructions in the group a moment ago. Did you understand those instructions, kind of the broad picture, criminal procedure, aspects of the law, how a Capital case can be divided into the phases. Phase one, guilt or innocence. Phase two, sentencing?
JUROR: Yes, sir.
THE COURT: Did you understand those instructions?
JUROR: Yes, sir.
THE COURT: Now, I also gave you a list of three types of potential jurors. I gave kind of a hypothetical assuming these facts versus found guilty and aggravating factors found beyond a reasonable doubt. The State has got to prove both of those.
JUROR: Right.
THE COURT: At that point then the jury would be tased with imposing sentencing, two possibilities, life or death. Nothing in between, no other options. One of the two.
JUROR: The options that I saw I am going to say I am identified with the type three.
THE COURT: Type three?
JUROR: Yes.
THE COURT: And that would be somebody who was, understand the State has proven the murder, proven the aggravating circumstance but they want to hear everything?
JUROR: Right.
THE COURT: Before they can commit themselves to either verdict?
JUROR: Right.
THE COURT: And that is how you describe yourself?
JUROR: Yes, sir.
THE COURT: Now, in the guilt or innocence phase there is perhaps, the State has got to prove that case of murder beyond a reasonable doubt. And Mr. Jones in this case has tendered a plea of not guilty by reason of insanity which brings potential defenses into the case which means the jury may have to consider some potential defenses in its deliberation of the guilt or innocence phase. And because of his plea there could be four potential verdicts. There could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Those are the four potential verdicts.
JUROR: Right.
THE COURT: Now understanding you haven't heard any facts, you haven't heard any instructions by the Court on how to consider those particular aspects of the verdict, can you give meaningful consideration to any and each of those potential verdicts, applying the facts you heard in court and be a fair and impartial Juror in this case?
JUROR: I can.
THE COURT: Now, I am going to list other potential defenses which may also be testified to and may be instructed at that time. Until the testimony is presented, I as the instructor of the law, don't really know exactly how I am going to tailor my particular instructions to the jury. Things are testified to, perhaps a reason for me to give additional instructions I would do so. These are defenses that are available under out statute. I won't give them all, I am going to list them all to you right now. At the appropriate time I may not give them all to you then if the testimony doesn't support it. Okay.
JUROR: Okay.
THE COURT: Potential defenses may be identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses available so can you give meaningful consideration to those particular defenses, any of them if they are appropriate to be instructed considering the testimony and evidence in the trial. Can you do that?
JUROR: Yes.
THE COURT: Also, if a not guilty verdict is found during guilt or innocence the case stops right there, it ends. It is over with. But if the State meets it burden of proving murder it goes to stage two which is the sentencing phase. At that time the State is then tasked with proving beyond a reasonable doubt aggravating circumstances. Aggravating circumstances are additional steps the State must prove beyond a reasonable doubt in order to seek a life without parole, I am sorry, a death penalty verdict. Aggravating circumstances are killing of a police officer, rape of murder, kidnapping of murder, murder of children, murder of multiple victims. They have got to prove at least one beyond a reasonable doubt.
JUROR: Okay.
THE COURT: Also the jury gets to consider any mitigating factors that are presented to them, from where ever they come. Mitigating factors are reasons to not impose the death penalty, to impose the life without parole sentence. Do you understand?
JUROR: Yes.
THE COURT: Particular mitigating circumstances allowed under the statute are, the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked at the time of the crime by the victim. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Now, those are statutory.
Jury's are not limited to only considering the statutory mitigating factors but they can consider any types of testimony which they can think would impact their decision to vote for life without parole such as a person's prior personal history, growing up, broken home, walk in life, whatever. That type of thing is also allowed to be considered as mitigating factors. Now, during the sentencing portion jury's are required to consider testimony of aggravating factors which the State has met its burden of proving beyond a reasonable doubt as well as any mitigating factors that have been presented. The jury can consider all of those facts. Now, can you give meaningful consideration to all of those aspects, whether it is aggravating factors, mitigating factors, defenses, whatever the testimony, give meaningful consideration to it as well as consider the instructions of the Court on the law in evaluating and considering this type of evidence, can you do that?
JUROR: Yes, I can.
THE COURT: Now, do you have any religious, personal or moral belief which would prevent you from finding a sentence of the death penalty?
JUROR: Can you repeat that.
THE COURT: We are in the sentencing phase, the very end when the jury has reached a unanimous verdict. At the very end jurors have to sign their name to the verdict form. Do you have any religious, personal or moral belief that would prevent you from agreeing and voting for the death penalty?
JUROR: No.
THE COURT: Now, likewise, do you have any religious, personal, any type of belief, moral belief which would prevent you from finding life without parole sentence?
JUROR: No.
THE COURT: You could find either one?
JUROR: Yes.
THE COURT: Now, this case involves graphic testimony involving the death of children. It is unpleasant, it is harsh. I have not seen all of it. I know very little about it other what I am telling you, the death of five children. I have no doubt when the lawyers represented to me, it is difficult, unpleasant testimony. Would that subject matter make it difficult for you to be fair and impartial to both sides, to the State and to the Defense?
JUROR: No.
THE COURT: Can you do that?
JUROR: Yes.
THE COURT: Can you think of any other reason why you cannot be fair and impartial to both the State and the Defense?
JUROR: No.
THE COURT: All right, Mr. Secor.
EXAMINATION By Mr. Secor:
CASEY SECOR: Hi, Mr. Lewis. I have some things that I would like to talk about with you if that is all right. And the Judge was talking to you, he was obviously talking to you about the requirements of a qualified Juror, a person who is actually sitting on this jury in this case. And I would like to talk to you more about your personal feelings about some issues. Is that all right with you?
JUROR: Sure.
CASEY SECOR: First I would just like to ask you what your thoughts are on the death penalty, just generally how do you feel about the death penalty?
JUROR: It depends on the facts.
CASEY SECOR: Okay. Do you think that it serves a purpose?
JUROR: Yes.
CASEY SECOR: Do you remember hearing anything about this case when it originally happened?
JUROR: No.
CASEY SECOR: Not at all?
JUROR: No.
CASEY SECOR: Okay. As the Judge talked to you about, there is four possible verdicts in the first phase in this case. There is guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty. Right. And three of those verdicts, a verdict of guilty, a verdict of guilty but mentally ill or a verdict of not guilty by reason of insanity, that would mean that the jurors believed that the person had done the act. So the case of murder, the person had killed, maliciously an innocent person without any excuse, justification or defense. Is that your understanding of that?
JUROR: Yes.
CASEY SECOR: Okay. And some people feel like in that situation where they know that the person did the act, that a verdict of not guilty by reason of insanity is somehow just an excuse and some jurors would say that is not a realistic option for me where I know that somebody actually killed somebody. How do you feel about that, do you feel like it is a thing that you could consider or do you feel like it is sort of an excuse or a copout?
JUROR: I don't think it is an excuse. There are professionals that handle or deal with that. But I can be impartial.
CASEY SECOR: I appreciate that. As the Judge told you, this is a case where the allegations are the murder of five children. And as the Judge told you, that is malicious killing, one done with hatred, evil or wickedness. Right. And so what I would like to know from you, is your feelings about how a person should be punished if a jury finds beyond a reasonable doubt, there is no question about that this person maliciously killed five innocent children. You don't get to decide the punishment at that point if you are on the jury. What I am asking, what you feel about a person at that point who has been convicted of five murders of innocent children. How do you feel personally about the death penalty for that person.
SHAWN GRAHAM: Objection, Your Honor, I thought we were going to limit our questioning to classes as opposed to specifics.
THE COURT: We were. Rephrase your question to characteristics of the class of charges here, not specifics.
CASEY SECOR: Can I get some clarification before I go foreward?
SHAWN GRAHAM: Can we approach, Your Honor?
THE COURT: Yes. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
CASEY SECOR: And I may have been overly wordy and I apologize. I want to know how you feel personally, just in your own heart of hearts, about the death penalty for a person who was found guilty of the murder of multiple children?
JUROR: I can't say that. I don't know, I would have to see what is presented.
CASEY SECOR: Okay. Do you feel as though that a sentence of life without the possibility of parole could ever be a sufficient punishment for somebody who you found--
JUROR: Yes.
CASEY SECOR: Yes, okay. Are there any types of cases that you think, personally, just absolutely call for the death penalty in all circumstances?
JUROR: No.
CASEY SECOR: Okay. I would like to talk to you a little bit about the way that the penalty phase works in these cases if you found somebody guilty and move on to the penalty phase. Okay. As the Judge told you the State would present to you what is called aggravating evidence and that has to be proven beyond a reasonable doubt to all jurors unanimously. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Okay. And of course those are reasons that the State would offer to you in their argument that they think that death is the appropriate punishment. Right. And then on the other side of that you would consider mitigating evidence and the definition of mitigating evidence is really just simply any reason to vote for life without parole. And unlike aggravating evidence there is no, there is no standard of proof or burden of proof in mitigating evidence. Okay. And it doesn't have to be proven unanimously. Each Juror finds for themselves what they think is mitigating about a case or a Defendant and it doesn't have to have anything to do with the actual facts of the case. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: And that is why, what is presented in mitigation can be the character and background of the convicted murderer. And one Juror might find that I think it is mitigating that he had a good relationship with his dad. That is the mitigation I find for myself. Nobody has to agree with that Juror. Another Juror might say, I think he has mental health problems. Nobody else has to agree but those jurors have found that mitigation and that is mitigating to them and they hold on to that. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: The law also says that once you get to the point where you make the ultimate decision as an individual Juror between life or death, you may choose a sentence of life without parole for any reason, no reason or based on mercy alone. So any reason would be like one of those mitigating factors that we talked about. No reason would just be, I as a Juror, I have heard everything, I have considered everything, I have followed my oath. I have gone to the deliberation room and talked to my fellow jurors but I have a responsibility to make the decision based on my own individual moral judgment and I can't tell you why, I can't point to a certain thing, I can't put it into words but life is the right sentence for me in this case and I am voting for life and you don't have to justify that or explain to anybody. Does that sound fair to you.
SHAWN GRAHAM: Judge, I am going to object. I feel like we are indoctrinating--
THE COURT: I think we need to ask questions, this is lengthy.
CASEY SECOR: I bring that up just to ask you, if a person said that to you and they are entitled to that would that be okay with you that they chose that even though they couldn't tell you?
JUROR: Yes.
CASEY SECOR: And a Juror also has the ability at all times to vote for life for mercy. Is that something that you could accept and follow as well?
JUROR: Yes.
CASEY SECOR: As I said, the law requires the decision of punishment to be each juror's own individual moral judgment. And once a Juror arrives at their own individual moral judgment on a penalty they are not allowed to deviate from that. And I say that because it is not appropriate for a person to be bullied out of their own individual moral judgment. Does that makes sense to you?
JUROR: Yes.
CASEY SECOR: And if you arrived at your own--
SHAWN GRAHAM: Objection, Your Honor. I can talk out loud or we can come over there.
THE COURT: Mr. Lewis, step down and I have to deal with some issues with the lawyers. You stand in the hall and I want to hear from the lawyers and we will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Graham.
SHAWN GRAHAM: I just feel like the whole line of questioning, just trying to indoctrinate them of what they should do and how to do it. He just told the Juror that once you make a decision you can't change your mind and that is not true. The Juror can make a decision and change their mind. It is not that the first decision you make is the one that you stick with forever. That is incorrect.
THE COURT: I think the correct statement would be, you cannot be bullied or coerced to change your mind, not you are absolutely bound by that decision. I think that is a mischaracterization to phrase it what way. You are not bound to not change your mind. But you cannot be bullied to change your mind.
CASEY SECOR: I specifically said to him about talking to other jurors as I have the other people I have voir dired and I said, once you arrive at your individual moral judgment on penalty that is your verdict. And that is true, that is a true statement of law.
THE COURT: You used some very direct specific verb, I don't remember it right now.
SHAWN GRAHAM: I think he said you couldn't change your mind.
THE COURT: There was another word, it was specific. Maybe deviate. Y'all have delved into that, but the question gets rephrased three or four times. I mean, once, twice, that is plenty because we are getting into--
RICK HUBBARD: Your Honor, maybe we can agree, and it might help things go quicker. Obviously they want to make sure nobody is bullied and we agree with that. Maybe if they can just ask that question, that you can't be bullied out of your position, that is fine. But this follow-up that you can't change it for some reason--
THE COURT: Would be a violation of your oath.
RICK HUBBARD: Yes, sir.
THE COURT: Okay.
CASEY SECOR: I don't see a difference between telling them that they, once they arrive at their individual moral judgment they can't change it and--
THE COURT: Your style of questioning is, once a person arrives at their individual moral judgment and they arrive at that judgment after fully considering everything, consider the Judge's instruction and the appropriate law and they consider this that they are bound by their oath under the Court's instruction to not deviate from that finding. Do you think that is fair. It is that long of a question that you are asking and I think it is kind of tricky for you to get them to commit to all of those things because you ask lengthy questions. It is just your style, I am not criticizing you but you have a very, very lengthy, would you agree with that style.
RICK HUBBARD: Your Honor, I guess my concern, because one of the prior jurors, it was almost, I was left feeling like maybe that decision can be reached before she or he walked in the back room. And then they felt like they couldn't change it because now I am required to stick to my position. That is not it. If we could just shorten this, Judge.
CASEY SECOR: I have said to each Juror, after considering the--
THE COURT: Shorten your questions.
RICK HUBBARD: And we could leave out, you can't deviate or change. Anybody can change their opinion.
THE COURT: You are allowed to stick with your opinion and your decision. You are very much allowed to do that, you can't be bullied. Fair enough.
CASEY SECOR: And it would be a violation of your oath to deviate from your own individual moral judgment.
THE COURT: It is not a violation of your oath to change your mind. That is what they are thinking. Your suggestion is what you make it, you can't unchange your mind. And the way you have worded it, that sounds like, once you make the decision it is, no mind change or I violate my oath, that is the law. That is not the law.
CASEY SECOR: Yes, sir. Just so I am clear so we don't have to revisit this. You want me to restrict my questions to the issue of bullying, is that correct.
THE COURT: The issue of what?
CASEY SECOR: Of bullying. Is that correct.
THE COURT: Yes but you are allowed to maintain your decision but I think the question is kind of evolved, it would be a violation of your oath if you then deviate from your original decision. I think that is the mischaracterization of the, what the State is objecting to and I think that is a mischaracter of the law. Once you made your decision and it is your decision and you are allowed to stick with it and under all juror's oath nobody is allowed to be bullied out of that decision. That is accurate. If you change your mind for a valid reason you can but I am certain you are not going to ask that.
CASEY SECOR: Yes, sir. I would just bring up, in light of the Court's ruling regarding our inability to tell jurors about the consequence of unanimity at the penalty phase of the deliberations, the next best thing we have available to us to instill in them the belief that they have to make this decision--
THE COURT: See, that is getting to what he is objecting to, that is what you are trying to do.
CASEY SECOR: To suggest to indoctrinating them to the truth of the law strikes me as a bit odd. I don't know why we wouldn't want them to be indoctrinated to the truth of the law.
THE COURT: Well, the way you are characterizing it is not actually the law. You are bound to not deviate your sworn oath, once you made your individual moral judgment you are not. You are allowed to stick with your decision and not allowed to be bullied by that decision. That is what the law is and that, you know, it is what it is.
CASEY SECOR: I would just say, I don't think that I did tell him that you could come in there without considering anything and just say, I am voting life. I don't think I said anything even remotely close to that.
THE COURT: Well, and here is another. I mean, y'all are aware of this. These jurors are novices. Y'all are very aware of the language, the individual moral judgment, mitigating factors. This is all new stuff to them and so we use this language, it means more to us then it does to them. So we have to be aware of that. These jurors are not trained and experienced in Capital cases as y'all are. So I think the proper question is something along the line is, if and when you reach your individual moral judgment you are allowed to maintain that and you are not allowed, under anyone's oath, to be bullied out of it. Something along those lines. I don't think it should be suggested to be a violation of their oath if they change their mind. That is what I am worried about, not be a violation of them to change their mind. They can't force or coerce to change their mind.
CASEY SECOR: Yes, sir.
THE COURT: Fair enough.
CASEY SECOR: Yes, sir.
THE COURT: Bring him back in.
(Whereupon, the Juror entered the courtroom.)
CASEY SECOR: Mr. Lewis, I am sorry about that. They just wanted to make sure I got across to you. In the penalty phase deliberations, when a person has taken everything into consideration and arrived at their individual moral judgment of what the appropriate penalty is, the law does not allow them to be bullied or coerced out of that. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Thank you for your time. I appreciate it.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: My name is Shawn Graham, how are you?
JUROR: Good.
SHAWN GRAHAM: I appreciate you being here with us today. Just real clear, real short I guess. What I heard you say is you are a type three Juror which means that you could give the death penalty in the appropriate case?
JUROR: Correct.
SHAWN GRAHAM: You could give life without parole as well?
JUROR: Correct.
SHAWN GRAHAM: You want to hear everything?
JUROR: Correct.
SHAWN GRAHAM: You want to hear the good, you want to hear the bad?
JUROR: Correct.
SHAWN GRAHAM: You want to go back to the jury room with the rest of your jurors and you want to sit down and talk about it and then you want to reach your decision?
JUROR: Correct.
SHAWN GRAHAM: You understand that if all twelve of you decide that the death penalty was the punishment that you would actually have to sign your name to a document that said, I vote for death.
JUROR: Correct.
SHAWN GRAHAM: And knowing that, if you thought death was appropriate would you be willing to do that?
JUROR: Yes.
SHAWN GRAHAM: Thank you, Mr. Lewis.
THE COURT: Anything further, Mr. Secor?
CASEY SECOR: No, sir.
THE COURT: Anybody need to put anything on the record?
CASEY SECOR: Yes, sir.
THE COURT: Mr. Lewis, step out and we will put something on the record and we will have you right back in. (Whereupon, the Juror was excused from the courtroom.)
CASEY SECOR: Your Honor, if I may just briefly regarding the conversation we had at sidebar. Is that okay?
THE COURT: Sure.
CASEY SECOR: And I don't want to misstate what Your Honor said but I believe it was Your Honor did not want the question regarding the murder of five children and that you wanted it to be restricted to the murder of multiple children. Is that correct?
THE COURT: Yes. What the discussion has been was the Defense is wanting to continually ask about particular, I am sorry, about general characteristics of the case. And the State does not want specifics about the case like the murder of five children, ages, 2, 3, 5, 6, 7, like that. That is what we are trying to stay away from and we have kind of gotten a step closer, a step closer where the facts are generalized. But there is accusations made of the murder of five children. The State has been using children under the age of eleven, multiple murders. And we discussed at sidebar and you may have brought up the fact that the Solicitor brought up the brutal murder of children on a prior Juror and that was during the examination of being able to deal with the subject matter. It wasn't exactly on can you reach this decision or that decision. But in order to not violate the staking out but allow the proper questions, do you think it would be better if we consistently say the murder of children under eleven, five accusations of that. I mean, the number of five, I don't know how we get around because there is five indictments.
CASEY SECOR: Yes, sir.
RICK HUBBARD: Right. I guess what we think, probably me being articulate in. When it is just a question, do you think that demands the death penalty, that seems to jump right into a case and they don't have the facts. I would just ask this Court that, I would like for it to be balanced. Would you, in a case involving multiple children under the age of eleven being murder, where there is no question, there is a conviction, would you feel the need to hear additional testimony, mitigating and aggravating circumstances. I mean, that is, opposed to, would you automatically think that is or you think that that would be an appropriate sentence for somebody who has killed people under the age of eleven or multiple kids. Because the way it has been asked sometimes it seems to assume, at least on the record if you read it, it seems to assume that that Juror is jumping right to a verdict without reviewing statutory aggravating and mitigating circumstances. And I think it has been confusing to the jurors. That has been my frustration, that there hasn't been that preface of balance. And I think it would cut out a world of questions and certainly clear things up for us when we get up to ask questions.
CASEY SECOR: If I may.
THE COURT: Yes, sir.
CASEY SECOR: I would just say that the question regarding the appropriate, the death penalty for a person convicted of an aggravating murder is the question authorized by--
THE COURT: And what you just said is perfectly fine. They objection comes in with five children. Then you add the facts and we get a step closer to staking. What you just said is not staking, that is generalization. So how do we get you to do the characteristics of the crime without going too far.
CASEY SECOR: I would say, I would say that pursuant to State versus Longworth, 313 SC 360; State v. Davis, 309 SC 326 and U.S. v. Johnson, 366 F2nd 822. The Defendant in Capital cases has the constitutional right to ask potential jurors is predisposed to or will automatically vote for the death penalty upon conviction of murder based on category of conduct. Category of conduct in this case could be the murder of five children as already articulated to the potential jurors by the Court.
RICK HUBBARD: If he had, he can almost ask it that way without mentioning five kids that are, he can say, does the murder of children, multiple children, is that a category conduct that you think always warrants. Well, I don't think I would even ask that way. But would you consider, would you automatically sentence or would you, death or would you want to consider aggravating and mitigating circumstances, something to that effect. It has got to be balanced.
CASEY SECOR: Please correct me if I am wrong but my recollection from yesterday, we were just saying, conviction of murder for, of a child. And the State wanted it to go to five in order to prevent us from first starting at conviction one and then adding on the five instead of one.
THE COURT: I don't remember that. I am not sure about that. You may be right.
RICK HUBBARD: It was the only and always language that they were using in their questions. Do you think it is the only appropriate sentence. That was our objection. Is it appropriate, I am fine with. And it is appropriate, I am fine with that.
CASEY SECOR: I think there has been some inconsistencies of the State wanting us to use the word, only, sometimes and not wanting us to use the word, only, at other times. I am, what I am asking the question of these jurors. I have tempered it a little bit by telling them, you don't have the ability to sentence at that point. What I am asking, pursuant to Morgan is, what are your feelings as a person, not as a Juror. There are rules about following the law don't apply to these perspective jurors. We are entitled, in order to intelligently exercise--
THE COURT: All right. How about this. If the person convicted of murdering more than one child, multiple children, would you consider it appropriate, that is kind of what you just said. And that is kind of fitting what the State is trying to get away from five.
RICK HUBBARD: And from the word, only. Would that be the only appropriate sentence. So you are right, Judge, that question, we didn't object to that question yesterday.
CASEY SECOR: I believe that when I ask the question, the emphasis is on the word, appropriate. Meaning is it the only appropriate sentence for you. That is what I need to get at and that is what Morgan versus Illinois entitled me to do. I need to know whether they are predisposed of that and that is the standard in South Carolina. I am not trying to trick them, I am trying to put them in a situation where they understand--
THE COURT: It is a lot easier to manage one lawyer at a time. But I got Mr. McGuire's style, I have got Mr. Young's style, I have got the Solicitor's style, I have got Mr. Graham's style. Y'all are all slightly different. Y'all are giving me six different things to -- your style is lengthy. That is probably most difficult for me because you are thinking as you are talking.
CASEY SECOR: I assure you I am not trying to be long.
THE COURT: I understand, I am the same way. Y'all make it real hard and I am not saying I am going to tell you to quit doing it. But it is easier when I am just dealing with one consistently and I kind of get into a rhythm in knowing where you are going.
CASEY SECOR: I understand, I am not trying to add to that.
RICK HUBBARD: Your Honor, maybe I can assist. I know the case he sited, correct me if I am wrong, he wants to ask if they would be predisposed to the death penalty. I am fine with the question. If the State has proven murder of multiple children would you be predisposed to the death sentence. I am fine with that.
CASEY SECOR: And I appreciate that. The only problem with that is that, that the predisposed is sort of the guide for Your Honor. If we just ask people who came in and said, are you substantially impaired, every single one of them would say no.
THE COURT: How about locked in or committed to.
CASEY SECOR: Or would you be starting at, that sounds pretty close to predisposed.
THE COURT: Sure. Try that. The State proves murder, multiple children.
RICK HUBBARD: Actually, the one difference there is we had a guy earlier who said, are asking whether is your starting point.
THE COURT: Right.
RICK HUBBARD: And we had one Juror who said, you know, obviously I don't know. We had one who said I started at life and then depending on what I hear. I think it is probably better to just say, would you need to hear any aggravating or mitigating circumstances. Would you need to hear anything else. That would really tell Your Honor, all right, I have got somebody who doesn't even listen anymore. Or would you want to hear anything else.
THE COURT: You are suggesting Mr. Secor say, if the State has proven murder and multiple children would you need to hear anything else.
RICK HUBBARD: Before you find for death or before you find for life, either one. I am fine with that.
CASEY SECOR: That would be difficult. I am just, I need to stick with the question, their feelings about the death penalty, aggravated murder. There was even one Juror where I told them--
THE COURT: How about this. If the State proves murder, multiple children, what is your feelings about the death penalty. Simple question and not wordy.
CASEY SECOR: I can't say, are you starting with the death penalty.
THE COURT: You just changed the question on me there. What are your opinions on the death penalty. The State proves murder, multiple children. What is your opinion on the death penalty, that circumstance. That is what you just asked and I think that is okay.
CASEY SECOR: May I just ask--
THE COURT: You can follow-up with something. That is what you just asked and I think that is fine.
CASEY SECOR: Yes, sir.
THE COURT: I think that gets you where you need to go or where, what you are hoping for. Understand now, you can still make a motion because we are through with Mr. Lewis.
CASEY SECOR: Yes, sir. And we are just, just renew also our objection to not being able to discuss with jurors the consequence of the non-unanimous panel.
THE COURT: Your objection is noted for the record and I have already ruled on that and consistently rule on the same. Bring Mr. Lewis back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Lewis, that discussion was lengthy that I had to deal with. You are found qualified as a Juror by the Court. That means, I know you are a IT guy and you can follow my instructions and watch the computer website, when you are coming back in. It will be under the heading of qualified Juror. Instructions will say, please check back, please report when, some date and time. Probably be after next week. You are under oath to not talk about the case, not discuss the case, not answer questions about the case. Not to do any independent research in the case. Do you understand?
JUROR: Yes, sir.
THE COURT: Are you going to live by that oath.
JUROR: Yes, sir.
THE COURT: There is plenty of publicity in the case and don't do any research, don't follow the media reports, minimize your media perusing. I want you to be influenced and make your decision on what you hear in here. Can you do that for me?
JUROR: Yes, sir.
THE COURT: Thank you so much and see you when I see you next.
JUROR: Very well. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring number 286 in. (Whereupon, Juror number 286, Joe Medlock entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: You are Mr. Medlock?
JUROR: I am.
THE COURT: My name is Eugene Griffith, pleasure to meet you. Monday I asked y'all to take an oath as a group to minimize communication. Do not talk about the case. Don't let anybody ask you questions and do not respond to questions. Did you do that?
JUROR: I did.
THE COURT: Did you follow the oath?
JUROR: I followed your oath.
THE COURT: You did not talk about the case?
JUROR: No, sir.
THE COURT: No one asked you questions.
JUROR: No, I was asked questions and I just told them I couldn't answer.
THE COURT: Fair enough, that is what you are suppose to do. Now, there has been a lot of publicity. Has any of the publicity and including my publication of the indictments Monday, obviously you heard that?
JUROR: Yes, I heard that.
THE COURT: Has anything from my comments, publications of the indictments, any publicity you heard, any publicity before Monday and months ago, there has been publicity period. Has any of that publicity, my comments reading the indictments, anything whatsoever caused you to form an opinion as to what has happened in this case?
JUROR: Probably honestly, yes.
THE COURT: Okay. Now, a lot of facts, I provided brief facts about the allegations the State has made against Mr. Jones. He is presumed innocent.
JUROR: Right.
THE COURT: I also gave you some preliminary instructions, aspects of the law, criminal procedure. Kind of how a Capital case is a two-step process if necessary. Step one, guilt or innocence. Step two, the State provides, if they are found guilty of the actual murder, the State has got to prove an aggravating factor as well as mitigating circumstance and testimony for you to consider. I gave a sheet to describe three types of jurors. What type of Juror, did you read this?
JUROR: I did.
THE COURT: Did you understand it?
JUROR: Yes, sir.
THE COURT: Did you find yourself in any one of those three categories.
JUROR: I would like to think I was a number three.
THE COURT: Okay. You would like to?
JUROR: Yes, I am only human.
THE COURT: Okay.
JUROR: No, I will try to consider, everything depends, there is not a solid answer.
THE COURT: So that means an open mind?
JUROR: Yes.
THE COURT: Consider all sort of factors?
JUROR: Yes, sir.
THE COURT: Now, there is some aspects of this case that I mentioned in the preliminary instructions which included defenses that Mr. Jones has presented. There are statutes which are the books behind me written out by the General Assembly provides several potential defenses for people when they are accused of crimes. Okay?
JUROR: Okay.
THE COURT: Potential defenses from our statutes, now there is testimony, you have got no facts.
JUROR: Right.
THE COURT: Very, very scant facts. There are going to be a lot of facts presented. Until all the facts and testimony are presented I am not exactly sure how my instructions will be. My instructions will be tailored from some of the testimony that is going to be presented. So the testimony that is going to be presented regarding the facts of this nature or that nature, I could add in instructions on aspects of that testimony. I won't know until I hear the testimony also. But I will instruct you on whatever I deem is appropriate considering what is presented. So with that in mind, potential defenses and all of these will not be presented, it depends on the testimony. This is from the statute, I will read them off to you. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are potential defenses. Mr. Jones has selected to claim one of those and try to present it for the jury's consideration. Can you give meaningful consideration to those defenses, the testimony presented, evidence presented, consider my instructions on the law, give meaningful consideration to those types of defenses?
JUROR: Yes, I can consider them.
THE COURT: Now because of the plea he has entered, not guilty by reason of insanity. There are four potential verdict forms. Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Those are the potential verdicts. Can you give meaningful consideration to any of those four potential verdicts after considering the instructions of law as well as the facts and evidence testified to?
JUROR: Yes.
THE COURT: Also, if the State has proved its case beyond a reasonable doubt, if a verdict of not guilty is found the case ends right there, on either of the potential verdicts. If guilty but mentally ill or guilty then the case proceeds to phase two. At that time the State has got to prove an aggravating factor by the statute of several, rape of murder, kidnapping of murder, police officer murdered, children murdered, multiple murders. An aggravating factor, the State has got to prove at least one of those beyond a reasonable doubt. Presume that has happened, you are also tasked with considering mitigating evidence. Mitigating evidence are reasons to impose a life sentence as opposed to the death sentence. Statutorily mitigators, the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbances.
The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Other non-statutory mitigating factors can also be considered like his walk in life, how he was raised, broken home, whatever aspects of his growing up, anything can be a mitigating factor. There is really no burden of proof on it, the jury can consider what they hear.
JUROR: Right.
THE COURT: Okay. Now, can you give meaningful consideration to the aggravating factors, the State has got to prove that beyond a reasonable doubt and any mitigating evidence or circumstances, can you give meaningful consideration to all of those factors?
JUROR: Yes, sure.
THE COURT: In considering a case, my instructions on the law in reaching a fair and impartial verdict in this case?
JUROR: Yes.
THE COURT: Do you have any religious, moral or personal beliefs you cannot impose the death penalty?
JUROR: No.
THE COURT: Similar question. Do you have any religious, personal beliefs you could not impose or vote for a life without parole sentence?
JUROR: No.
THE COURT: Now, I should have asked you first. Do you have an obligation which would prevent you from appearing as a Juror. My guess is that the trial will start Monday a week or so, go on for a week or two, go close to June?
JUROR: Yes, June I have a--
THE COURT: What have you on the horizon personally that you are obligated to?
JUROR: I have a daughter graduating high school and I have put a deposit on a house at the beach.
THE COURT: You are going to the beach with her?
JUROR: Yes and my other kids.
THE COURT: Okay. When is that?
JUROR: June 1st.
THE COURT: I am kind of inclined to say, enjoy his trip.
BOYD YOUNG: Yes, sir.
THE COURT: I would like to keep you and say that is not a good enough reason but I am going to let you go on your trip. So that would be a huge imposition if you were not allowed to go. Thank you for coming and I should have asked you that question up front.
JUROR: That is all right, no problem.
THE COURT: Thank you for your patience. You are excused, you have got obligations that I am not going to impose upon. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 260. (Whereupon, Juror 260, Carmen Lucas came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Lucas, how are you?
JUROR: Good, how are you.
THE COURT: My name is Eugene Griffith, I have introduced myself several times. I asked you to take an oath Monday to not talk about the case. Have you lived up to that obligation?
JUROR: Yes, sir.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: No, sir.
THE COURT: And if they did you told them not to talk about it?
JUROR: Yes, sir.
THE COURT: You got anything on your personal calendar, business, personal or otherwise over the next, to the first week of June. Next week I am dealing with other jurors so next week you will, if you are called as a Juror it won't be starting next week, perhaps after that?
JUROR: I do, yes sir.
THE COURT: What have you got?
JUROR: My daughter has school events on the 16th, 17th and 20th.
THE COURT: She has a lot of events?
JUROR: She is in 4K, sir.
THE COURT: All right, 16th, 17th and 20th.
JUROR: Yes, sir.
THE COURT: Is she graduating on the 20th to 5K.
JUROR: It is their last day, yes sir.
THE COURT: All right. 13th is Monday?
JUROR: It is that Thursday, Friday and Monday.
THE COURT: Is that your only child?
JUROR: Yes, sir.
THE COURT: So she is four-years-old?
JUROR: She is five and a half.
THE COURT: You work outside the home?
JUROR: I do, yes.
THE COURT: Do you take care of her all the time other than that?
JUROR: I do, yes. I have full custody.
THE COURT: And so once she gets out of school you are the one that picks her up?
JUROR: No, she goes to daycare after school.
THE COURT: Okay. Other than daycare you are the primary caregiver for her?
JUROR: Yes, sir.
THE COURT: She is a caregiver of a child under the age of seven.
BOYD YOUNG: Yes, sir.
THE COURT: Ma'am, thank you for coming, I am going to excuse you from service because of that.
JUROR: Thank you.
THE COURT: And that is also consistent with her need to get out by 5:00. She had children issues that the statute allows for her. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: 306, are y'all ready or do you need a break. Are y'all good?
RICK HUBBARD: Yes, sir.
THE COURT: Bring him in. (Whereupon, Juror 306, Franklin Nelson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you?
JUROR: All right, how are you.
THE COURT: Good. Your name is Mr. Nelson?
JUROR: Yes, sir.
THE COURT: My name is Eugene Griffith. I called you in on Monday, you took an oath, Monday's oath required you not to communicate about the case in any fashion. Has anybody asked you about the case?
JUROR: No.
THE COURT: Have you talked to anybody about the case?
JUROR: No.
THE COURT: Now, there has been presentation Monday, I read the indictments and you know a few brief facts and discussed them a little bit earlier. I read the statement regarding the criminal procedure and some of the processes. Did you understand that?
JUROR: Yes, sir.
THE COURT: Now, have any of the publicity and the allegations read by the Court, have those facts or whatever you heard, because prior to Monday, there was publicity, you were under no obligation to not read it or watch it. If you did I want to know, have you formed an opinion as to what happened in this case?
JUROR: I pretty much had an opinion before the case but, no, in the morning I watch the news as far as the weather goes.
THE COURT: I always watch the weather myself.
JUROR: I really don't care what is going on in the world other than the weather.
THE COURT: Now, there, the fact, the summary of the criminal procedures I gave you, talked to you about the State has got to bring the case, make the allegations of murder. They have got to have the burden of proof. Mr. Jones is presumed innocent sitting right there. The State has got to make its proof of the murder in phase one of the case. Before we can go to phase two, not guilty is found in phase one the case stops. It ends right there. If it goes to phase two then the jury determines the punishment. The State has got to prove at least one of the statutory aggravating factors which are murder of a child, murder of a police officer, rape of murder, those are aggravating factors, the State is required to prove at least one of those beyond a reasonable doubt. So I handed this sheet to you describing, if the State proves murder, there is an aggravating factor proven beyond a reasonable doubt and there is also mitigating circumstances and factors. Considering those factors, three types of jurors. Type one, type two, type three. Did you read that sheet?
JUROR: Yes, sir.
THE COURT: Did you understand it?
JUROR: Yes, sir.
THE COURT: Can you find yourself and identify yourself particularly to one of those three types of jurors?
JUROR: Yes, sir.
THE COURT: Which one?
JUROR: Probably one.
THE COURT: One. Now, when you say that, it means that you kind of, personal belief that if somebody committed murder and the State proved an aggravating factor, that is a result they should get.
JUROR: Yes, sir.
THE COURT: Anything talk you out of that?
JUROR: Probably not. I am an eye for an eye.
THE COURT: Eye for an eye. Fair enough. Mr. Nelson, I greatly appreciate your patience with us and this process and you are free to go.
JUROR: All right.
THE COURT: You are excused. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are y'all ready on 272.
BOYD YOUNG: Can we take a break.
THE COURT: Yes, we will take five, sure.
(Whereupon, a short break was taken.)
THE COURT: Now are we ready on 272?
BOYD YOUNG: Yes, sir.
THE COURT: Bring him in. (Whereupon, Juror 272, Jeremy Mason entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Mr. Mason, how are you doing?
JUROR: I am good.
THE COURT: My name is Eugene Griffith and I the presiding Judge for the case. I placed you under oath Monday and I told you, told everyone, please don't talk about the case. Have you talked about the case?
JUROR: No, sir.
THE COURT: Has anyone asked you about the case?
JUROR: No, sir.
THE COURT: Other than having to get off of work?
JUROR: Yes, my boss knows what is going on, jury duty.
THE COURT: Now, I published the indictments on Monday and read those and there is some very brief facts out there regarding the allegations the State has made. There has been multiple amounts of publicity before Monday about the case in general. My question to you is, have you formed an opinion based on anything you have heard whatsoever as to what happened in this case?
JUROR: No, Your Honor.
THE COURT: Okay. Nothing has influenced you yet?
JUROR: No, sir.
THE COURT: Now, a lot of the questions that we are going to ask you, the lawyers are going to ask you are about your opinions so really and truly there are no wrong answers, just candid answers, truthful answers which you are sworn to tell the truth. So I ask you first, do you have anything scheduled, I am asking jurors the same questions so, I have got to ring a bunch of jurors in next week, it will probably be the following week before the trial starts. So if you are qualified as a Juror your duty wouldn't start until then and it may go on for a couple of three weeks, probably end early June. Do you have anything scheduled that would create a huge imposition for you to reschedule if you were selected as a Juror?
JUROR: No, Your Honor. The next plans that my wife might have are at the end of July.
THE COURT: You are open--
JUROR: Right.
THE COURT: Did you examine the witness list, the potential witnesses?
JUROR: Yes, sir.
THE COURT: Do you know of any of those potential witnesses?
JUROR: Not that I am aware of, Your Honor.
THE COURT: Now, I gave a summary, a brief summary, criminal procedure, indictment, the State has got the burden of proof, the State brings a Capital case there is potentially a two-step process. The State must prove the murder first, the jury finds murder, the State has got to prove the case beyond a reasonable doubt. Do you understand?
JUROR: Yes, sir.
THE COURT: Once that is done then potentially, if it is a not guilty verdict the case ends right there. So not guilty the case stops. If a verdict of guilty is found then it goes over into phase two which is the sentencing phase. And at that time the jury has basically got two choices, life or death. And during phase two the State is required to prove an aggravating factor to be entitled to seek the death penalty. Our statutes allow or show several aggravating factors and the State has got to prove at least one. Murder of a police officer is one, rape of murder, kidnapping of murder, children, child being the victim, multiple victims. Those are some aggravating factors the State could prove. The State has got to prove one beyond a reasonable doubt. At that time, also the jury is allowed to consider any mitigating factors, reasons to not impose the death penalty. I gave you a sheet that described, if you were in that position, the State proved the murder beyond a reasonable doubt and also the State proved an aggravating factor. Three types of jurors, three choices as to two sentences. Can you identify yourself as one of those three categories?
JUROR: Type three, Your Honor.
THE COURT: You are a type three, very well. Type three is somebody who wants to hear it all. Do not have my mind made up upon a finding of a guilty verdict. Is that correct?
JUROR: That's correct.
THE COURT: Now, as an additional aspect, in some cases have defenses that the Defense can show. Some of them may be shown in this trial. I am going to read all of the statutory defenses and ask you if you can consider those. Potential defenses include identification and some of these may not be applicable I am going to read them all. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are all potential defenses, some of them are affirmative defenses meaning you have got to alert the State, we are going to intend to prove that, say that I am going to present that. Considering those are potential defenses and that Mr. Jones has tendered a plea of not guilty by reason of insanity, so potential verdicts could be guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty at all as opposed to guilty, not guilty. Can you give meaningful consideration to all of those potential defenses and affirmative defenses, those four potential verdicts while considering testimony presented, the evidence presented and the instructions of the Court, meaning from me and make a fair and impartial determination of guilt at that time, make a determination to reach a verdict that is fair to both sides. Can you do that?
JUROR: Yes, Your Honor.
THE COURT: So you can consider everything including my instructions on all four of those potential verdicts?
JUROR: Yes, sir.
THE COURT: Now, if the case were to go to the sentencing phase, so the State has met its burden of proof, stage two, phase two is the sentencing portion. There is only two potential results, life without parole or death. No middle ground, no other options, there are only two options. During that phase the State has got to prove the aggravating factor beyond a reasonable doubt. As a Juror, you are allowed to consider any and all mitigating factors and testimony. There is some statutory and some is not, you can hear whatever you want, listen to the testimony, you can consider whatever you want. Mitigating factors under our statute can be the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbances. The victim was a participant in the Defendant's conduct or consented to the act.
The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime and any other aspects of his personal history, growing up, broken home, whatever the testimony is, considering the mitigation facts. A Juror can consider any of those in imposing or deciding upon which verdict, punishment is appropriate. Now, can you give meaningful consideration to the aggravating factors presented by the State, must prove that beyond a reasonable doubt and mitigating factors that are presented during the trial of the case, any defenses presented during the trial of the case, consider the evidence, consider the testimony, instructions of the Court and how to evaluate and consider that testimony. Can you do that and act as a fair and impartial Juror?
JUROR: I can, Your Honor.
THE COURT: Now, do you have any reason, moral, personal or religious belief that would prevent you from finding a punishment of the death penalty?
JUROR: No, Your Honor.
THE COURT: Do you have any beliefs, moral, personal belief that would prevent you from finding a punishment of life without the possibility of parole?
JUROR: No, Your Honor.
THE COURT: Now, this testimony involved in this case will involve the death of children. The subject matter is going to be difficult and unpleasant and perhaps graphic and harsh. Would subject matter in that nature be difficult for you to hear and consider and therefore prevent you from being fair and impartial to both the State and the Defense?
JUROR: No, Your Honor.
THE COURT: Can you listen to that?
JUROR: Yes.
THE COURT: That is all the questions I have. What does the discharge mean, explain that, what does that mean?
JUROR: I was in basic training and tore my ankle, stepped in a hole on a march and it tore my ankle up and they give me two choices. They said we can fix it and you can start basic training or we will just give you a discharge with un-characterized service which means I wasn't there long enough to do anything right or wrong.
THE COURT: Okay. So they said thank you, we can fix it but you have got to stay with us.
JUROR: Yes and I was, and I had been married for two months before I went into basic training and I was like, no.
THE COURT: I couldn't read that word, un-characterized and it explains that, fair enough.
THE COURT: Mr. Young, go ahead.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Mason, I appreciate you bearing with us and I agree with your decision on the basic, I wouldn't have done it again myself. As the Judge explained to you, there is no right or wrong answers here, I am just going to ask you some questions about your opinions about some things. Okay?
JUROR: Okay.
BOYD YOUNG: And I see that you are a legal assistant in a law firm?
JUROR: Yes, sir.
BOYD YOUNG: And y'all do some criminal defense?
JUROR: Yes, sir.
BOYD YOUNG: So you are probably way more familiar with this than most of the jurors that we have talked to?
JUROR: Yes sir, I am.
BOYD YOUNG: And you know how important it is to share your opinion and to keep an open mind and to be fair and impartial for jury duty?
JUROR: Yes, sir.
BOYD YOUNG: And the Judge has talked to you a little bit about Mr. Jones has plead not guilty by reason of insanity?
JUROR: Yes, sir.
BOYD YOUNG: Have y'all ever done any not guilty by reason of insanity cases?
JUROR: No sir, we haven't done homicides since I have been part of the firm.
BOYD YOUNG: Well, not guilty by reason of insanity means the, somebody says I did the act, right, I did the acts I am accused of but because of a moral disease or defect I was not able to appreciate the legal or moral wrongfulness of my conduct. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And some jurors think that that is a copout, like they are getting away with it and they are getting off scott free and it shouldn't be allowed.
JUROR: I understand.
BOYD YOUNG: And does that describe you?
JUROR: No, no sir.
BOYD YOUNG: You understand mental illness is a real thing and some people aren't able to appreciate wrongfulness in the conduct and those people are dealt with differently?
JUROR: Yes, sir.
BOYD YOUNG: And that is how you feel about things?
JUROR: That's correct.
BOYD YOUNG: So I am going to move straight to and we are talking about murder and you know what murder is and murder is the intentional killing of another with malice aforethought. And you know what malice is, right?
JUROR: That's correct.
BOYD YOUNG: And the Judge talked to you about a category of cases where you have multiple children killed, right, that would be sort of the aggravating factor, right?
JUROR: Yes, sir.
BOYD YOUNG: And then the jury would have the option to decide punishment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And at that point and time where you found this murder of multiple children, do you have a leaning towards life or death as an appropriate punishment?
JUROR: I would have to consider everything. I don't have a leaning in one trend or another until I have heard all the mitigating factors, look at everything from the beginning to the end of the trial essentially.
BOYD YOUNG: I totally understand and thank you for your response. Do I understand you to be saying that you believe that life in prison without the possibility of parole and you understand that means they stay there until they die and there is no coming out. Right?
JUROR: Right.
BOYD YOUNG: You believe that could be a substantial enough punishment for the murder of multiple children?
JUROR: It can be.
BOYD YOUNG: Depending?
JUROR: Depending on all of the mitigating factors.
BOYD YOUNG: Okay. Can you just share with me like, your sort of general philosophy regarding the death penalty, like what do you think about it?
JUROR: I am, I am not, it is kind of odd to say. I am not against it. I think there are certain circumstances where the death penalty can and should be applied. However, if the State were to ever do away with the death penalty, I wouldn't shed a tear over that either, I believe as long as it is the will of the people that the death penalty to be part of it then it should be considered in the crimes that it, the statute sets up.
BOYD YOUNG: I think I understand where you are coming from. Do you, would you, I am going to say some people think that the death penalty should be reserved for the worst of the worst. Is that a philosophy that you--
JUROR: I absolutely agree.
BOYD YOUNG: Sort of an option of last resort?
JUROR: Right.
BOYD YOUNG: I understand where you are coming from on that. I am going to skip ahead a little further and we are going to start talking about the mitigation factors and the other factors that you would consider or have the opportunity to consider in sentencing. Okay. And the Judge told you a little bit about those. You understand that aggravating factors have to be proved by the State beyond a reasonable doubt, unanimously found by the jury?
JUROR: Right.
BOYD YOUNG: And each Juror decides for himself what is or is not mitigating. Is that your understanding?
JUROR: Correct.
BOYD YOUNG: There is no burden of proof on it. Do you understand that?
JUROR: Right.
BOYD YOUNG: And each Juror doesn't have to agree that it was found. Do you understand?
JUROR: That is correct.
BOYD YOUNG: This Juror could say, I saw a relationship with his father and based on that relationship I think that I am going to extend a life verdict and the law is fine with that. Are you okay with that?
JUROR: I am fine with that.
BOYD YOUNG: And the next Juror could say, well, I didn't see that, I disagree with that. But I thought that, I thought the evidence of mental illness was appropriate and I am going to find for a life verdict based on that. Are you okay with that?
JUROR: Yes, sir.
BOYD YOUNG: And those two jurors could say, I disagree but they could each arrive at their own reason for a life penalty.
JUROR: That's correct.
BOYD YOUNG: And jurors, under South Carolina law, can even say, I don't have a reason but I want to vote for life. Could you respect a Juror who says I don't have reason and I don't want to talk about it but my vote is going to be life?
JUROR: They, even though we are charged to consider everything, that is the choice between life and the death penalty is on each individual Juror so I have no right to feel one way or the other about what another Juror feels on the situation.
BOYD YOUNG: So basically you are way ahead of the game. That Juror, that decision about who lives or dies, what is referred to in the law as a individual moral judgment, are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: You have heard that term before?
JUROR: Yes, sir.
BOYD YOUNG: And that is sort of like the way that I equate is, choosing what faith is right for you.
JUROR: That's correct.
BOYD YOUNG: And you have made your own personal decision about what faith is appropriate for you?
JUROR: I have.
BOYD YOUNG: And you recognize that other people have made different decisions about what faith is appropriate for them?
JUROR: Absolutely.
BOYD YOUNG: You respect their right to their choice?
JUROR: Yes, I do.
BOYD YOUNG: You expect them to respect your right to your choice?
JUROR: I absolutely do.
BOYD YOUNG: And if you saw somebody being disrespected about their individual moral judgment would you stop it?
JUROR: I would attempt to by whatever means is necessary to stop somebody from essentially bullying someone else into another, into changing their mind.
BOYD YOUNG: You could send a note out to the Judge saying, people aren't being respectful?
JUROR: That's correct.
BOYD YOUNG: And the Judge would bring everybody out and tell them, take care of it, right?
JUROR: Right.
BOYD YOUNG: The law in South Carolina with regard to each juror's individual moral judgment, when you have arrived at it, you consider everything, you have talked to everybody, you arrive at what your individual moral judgment is, right. And you can have an initial opinion and then change it after talking to other people. But when you arrive at what your individual moral judgment is about what sentence is appropriate. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: It is each juror's duty and obligation to have that individual moral judgment returned in court. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: You have any problem with that?
JUROR: No, sir.
BOYD YOUNG: Based on the Court's limitations I am going to stop there. Thank you, Mr. Mason.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Mr. Mason.
JUROR: Good afternoon.
SUZANNE MAYES: My name is Suzanne Mayes and I am a Deputy Solicitor here in Lexington County. Our job as prosecutors is to represent the State in this case. I just want to follow-up on a couple of questions that Mr. Young asked you. He had asked you specifically about the death penalty and what your views were on that. And one of your responses was that if it were done away with you wouldn't shed a tear.
JUROR: Yes.
SUZANNE MAYES: Does that mean that you have some level of opposition to the death penalty?
JUROR: No. That just means that I believe that the people should decide what penalties are, are in their code or in the code of laws and if the majority in the State wanted to remove the death penalty then that is the will of the people.
SUZANNE MAYES: So your thoughts on it aren't so personal in nature as much as what the majority of citizens may feel is right or appropriate for that?
JUROR: That's correct.
SUZANNE MAYES: And of course here in South Carolina we recognize the death penalty. And with that comes the option, if this were to advance to a second phase of the trial where jurors would then determine life without parole or the death penalty. Are those two options that you can consider?
JUROR: Absolutely.
SUZANNE MAYES: And with that and recognizing that that is the law of the State of South Carolina, that it is a sentencing option, can you personally vote for a death penalty if after considering all the factors, aggravating and mitigation, you personally felt that that was the appropriate sentence?
JUROR: Yes, ma'am.
SUZANNE MAYES: With that potential death verdict, in this case or any other case, if it would be a form that goes along with the verdict that each individual Juror would have to sign and then personally acknowledge that that is, in fact, their sentence. Would you be able to sign your name to a death verdict?
JUROR: Yes, ma'am.
SUZANNE MAYES: If after considering all of the factors and all of the evidence you felt that that was appropriate?
JUROR: Yes, ma'am.
SUZANNE MAYES: One of the questions that Mr. Young posed to you was whether you felt it was for the worst of the worst.
JUROR: Yes, ma'am.
SUZANNE MAYES: Have there been cases throughout history that you have seen or that you read about where you personally felt the death penalty was appropriate?
JUROR: Some serial killers, mass murderers and some cases especially ones that are absolutely unrepentant. There have been cases in history where I felt the death penalty was an appropriate punishment.
SUZANNE MAYES: Thank you. Nothing further.
THE COURT: Anything else?
BOYD YOUNG: No, Your Honor.
THE COURT: Anything on the record?
BOYD YOUNG: No, sir.
THE COURT: Does the State need anything on the record?
RICK HUBBARD: No, sir.
THE COURT: All right, Mr. Mason, you are deemed a qualified Juror. What that means is you are going to be on a different list. I want you to pay attention to the website like you were looking at, qualified jurors will say please contact or look again, we will let you know later, something nice, we will let you know when the trial starts. I need you to come back in when the qualified jurors, please report back on such and such a date. My guess is it is going to be early week after next. I don't know. Start watching it in the middle of the week to see what it says. Now, until that time of reporting back and throughout the trial I don't want you to discuss the case. You are not selected, you are qualified from the number that are being qualified a petit jury will be selected. So you are qualified but not selected yet. Still your oath, do not investigate the case, do not look anything up, do not talk about the case, do not answer questions about the case. Do not pay attention to publicity. I want you to decide this case on what you hear in the courtroom with your fellow jurors if you are so selected, presented by the lawyers and the witnesses who are under oath. Understand what is in the media, I don't know, what is in here is, what is in the record, all of that subject to the scrutiny of what is allowed to be testified to or not. Can you live up to that oath?
JUROR: Yes, Your Honor.
THE COURT: All right. You watch the website and come back in when it says report back and thank you for your patience. Good luck. (Whereupon, the Juror was excused from the courtroom.) (Whereupon, Court is finished for the day. The trial will resume on May 6, 2019.)