2.Individual Juror Voir Dire
3,294 linesTHE COURT: Are we ready, 438. (Whereupon, Juror 438, Kelly Tomlinson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Tomlinson, like I told you before, I remind you you are under oath. My name is Eugene Griffith, I am the presiding Judge on this case. I remind you you are under oath, we have got several questions. I will ask you the questions and then the lawyers will have an opportunity to ask you questions. And some of the questions are your personal feelings or opinions. No wrong answers, honest and candid answers is what the Court is suggesting that is the appropriate answer. Now, I did make an initial comment, what do you have personally on your calendar that if you were selected as a jury that may upset or cause you to reschedule?
JUROR: I am a stay-at-home Mom so I have young children, seven and ten. And obviously it is the end of school, May is super busy for us. So nothing, I mean--
THE COURT: You are number 438?
JUROR: I am.
THE COURT: Okay. But you don't work right now?
JUROR: I am a nurse but I work on a as needed basis.
THE COURT: Okay.
JUROR: So I pick my own time.
THE COURT: Okay. That is what was confusing me. I saw Prisma Health?
JUROR: I am Prisma now.
THE COURT: And so May is a big time for school and the end of the year, seven and ten?
JUROR: Seven and ten.
THE COURT: Fair enough. So nothing hugely other than a personal inconvenience, you don't have a Disney vacation already paid for?
JUROR: Not in the next couple of weeks, no.
THE COURT: So if called upon you you could do it?
JUROR: I could.
THE COURT: All right. Now, the next question, have you had an opportunity to observe and review the potential witness list?
JUROR: I have.
THE COURT: I am required and the Court is required to have all potential witnesses to be listed, they are not required to be called as witnesses but out of an abundance of caution if they list them all then I can ask you, do you know anybody and if so what is your relationship. Do you know anybody on the list?
JUROR: I know one. Dr. James Doer, (phonetic).
THE COURT: James Stewart?
JUROR: Doer.
THE COURT: Doer?
JUROR: Yes.
THE COURT: And have you worked with him in the past?
JUROR: Well, I work with him at the hospital.
THE COURT: Okay. And would the fact that you work with him at the hospital from time to time, would that affect your ability to be fair and impartial to both sides understanding he may be a potential witness?
JUROR: No. I mean I don't know him that well.
THE COURT: Okay. That is kind of what I am looking for. So if he is a colleague of yours and you work with him and you could listen to his testimony but still be fair to both sides, that is what I am looking for. If you and he are close friends and that would create, you go to church with him, that kind of thing. That is not the case?
JUROR: That is not the case.
THE COURT: You can be fair and impartial?
JUROR: I can be fair.
THE COURT: Now, I gave you the preliminary instructions on the law. Did you understand that explanation I gave a moment ago?
JUROR: I did.
THE COURT: And then I also gave you a list that describes three types of potential jurors, type one, type two, type three. Did you review that list?
JUROR: I did.
THE COURT: Now, can you, knowing basic facts and let me go back and ask you. Have you maintained your oath for me since Monday and not talked about the case?
JUROR: I have. I did one time have the news on, on Tuesday morning after but that was it.
THE COURT: There is a lot of media coverage. Also I presented some facts on Monday that you heard and certainly can consider. Have any of those facts and publicity caused you to form an opinion about what happened in this case already?
JUROR: Well, and I remembered this case four years ago and I followed it and listened to the news, read the paper. I mean, I had a baby at home at the time so I was just at home and so I do remember everything about this case.
THE COURT: Because of that publicity and viewing the stuff and that is fine, that is what people do. But has that caused you to form an opinion as to what you believe happened?
JUROR: It has.
THE COURT: Okay. I mean, I want candid answers. Understanding what is reported in the news, publicity, what is heard on social media, none of that has been proven so we stand here today, Mr. Jones is presumed innocent, the State has not presented any testimony before any jurors. Do you think what you have heard already, the opinion you have formed, would that create an issue for you being able to be fair and impartial from this point forward?
JUROR: Yes.
THE COURT: I am going to ask you one more question. Have you found yourself as identified to any of those three types of jurors. Very scant facts, you have got broad facts, not much so I am putting you on the spot and I am doing that intentionally. I want to know, a broad picture, if these facts are given where would you fall.
JUROR: I think I am type one.
THE COURT: And you told me you have formed some kind of opinion based on the publicity you have reviewed over whether it was four years ago, four weeks ago or even Tuesday. And that is where I am trying to sort out this. I want plain sheets of papers as jurors but you think you are type one?
JUROR: I do.
THE COURT: All right. And that's partly because you have young children?
JUROR: It is.
THE COURT: And would the subject matter be difficult for you to listen to, understanding it is the death of children?
JUROR: It probably would be.
THE COURT: All right. I don't see any point in perusing Ms. Tomlinson any further. Any objection?
BOYD YOUNG: No, Your Honor.
THE COURT: You are excused and thank you for your patience. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 457. (Whereupon, Juror 457, Dinah Washington came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are 457, Ms. Washington?
JUROR: Yes, sir.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: I was looking at your review sheet. You still work at the Department of Corrections?
JUROR: No, sir.
THE COURT: Are you retired?
JUROR: Yes, sir.
THE COURT: How long did you work there?
JUROR: I think from 2003 to 2008.
THE COURT: So about five years?
JUROR: Seven years.
THE COURT: The fact that you were employed by the Department of Corrections formally, is that going to affect your ability to be fair and impartial in this case?
JUROR: Would it affect me?
THE COURT: Yes.
JUROR: No, sir.
THE COURT: Okay. You took an oath on Monday when I first met you, again, my name is Eugene Griffith. Monday you were told not to discuss the case, don't let anybody discuss the case with you, have you discussed the case in any manner whatsoever?
JUROR: No, sir.
THE COURT: Anybody try to talk to you about it?
JUROR: No, sir. I just stayed away from people.
THE COURT: And other than, I got to court, you have got to tell your family about that?
JUROR: Yes.
THE COURT: Now, there has been publicity in the case, talk about the case. I gave some allegation of facts Monday when I read the indictments regarding this case and some of the facts that are alleged. Any publicity, those facts, has that caused you to form any opinion in this case whatsoever about what happened?
JUROR: No, sir.
THE COURT: Have you made up your mind about what happened?
JUROR: No, sir.
THE COURT: Now, I also, just before you came in here, gave you a lengthy potential witness list, a lot of witnesses that could be called. And I will tell you, all of them won't be called. They have got to list them all in case, therefore you can say, I use to work with this one. Even though he is a minor witness to a minor thing, do you know anybody on the witness list?
JUROR: No, sir.
THE COURT: Okay, fair enough. Now, I gave you an instruction moments ago with the other five jurors. We sat in here and described the criminal procedure that is involved as well as some aspects of the criminal law and the State's burden of proof and presumption of innocence and the two stage Capital type trial that is involved here. Now, understanding those instructions, did you?
JUROR: Yes, sir.
THE COURT: Did you also read and review the sheet that I gave you which describes the three types of potential jurors?
JUROR: Yes, sir.
THE COURT: Now, can you identify yourself as to falling into one of those three categories?
JUROR: Probably Juror number three.
THE COURT: Number three. Okay. Now, I forgot to ask you about your work schedules. Your personal schedule on the calendar for the upcoming several weeks, through June, not through June but until June. Do you have anything on the calendar that is going to really get upset if you get selected as a Juror in this case?
JUROR: I will be keeping my grandchildren, they will be out of school by then.
THE COURT: Okay. So keeping your grandchildren is the only thing that would be upset?
JUROR: Yes, sir.
THE COURT: Fair enough. Most of the questions from this point forward are kind of your personal feelings and opinions, no wrong answers, like the type three you described yourself. That is kind of how you evaluate yourself. So candid and truthful is all we are looking for, right. Now, understanding this, that if you are selected as a Juror you will hear testimony and evidence, two aspects of the trial. Phase one which is the guilt or innocence phase and then if a not guilty verdict is found in that phase the case ends, it stops right there. But if the State meets its burden of proof and proves a murder beyond a reasonable doubt then phase two or the second stage of the case will then proceed on. The stage two case is only for punishment and during the time the State has got to prove one of the statutory aggravating factors which I described to you as some potential factors that could be, the killing of a police officer, rape of a murder, kidnapping of a murder, murder of children, multiple murders. Those are aggravating factors that would allow the State to then seek the death penalty. If it is just a plain vanilla murder and the State gets a conviction the Judge sentences but not the death penalty. Do you understand?
JUROR: Yes.
THE COURT: Stage one there is guilt or innocence but there is also defenses allowed to be claimed by people accused. Potential defenses which can be claimed, one of them has been claimed in this case so it causes the verdicts to be a little bit broader. In this case, based upon the plea filed by Mr. Jones, and he is presumed innocent sitting over there. There could be a verdict of guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Potential defenses which may be heard and considered by the jury, this is the aspect of my instruction, until I hear all of the testimony I am not exactly sure how I am going to tailor my instructions to include which aspects of the law. If there is no testimony about one aspect I don't instruct the jury on something that they didn't hear anything about. So I have got to hear the testimony also. Potential defenses available in a trial like this are accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are defenses that can be heard and considered by a jury if the testimony and evidence supports it. So understanding there are four potential verdicts in this case can you give meaningful consideration to any of the testimony presented, consider any one of those four potential verdicts. Can you do that?
JUROR: I believe that I can.
THE COURT: Can you give meaningful consideration to my instructions on the aspects of guilty, guilty but mentally ill, not guilty by reason of insanity because I will have to instruct you on those aspects of our law and how to evaluate the testimony and evidence that you have heard. Can you do that?
JUROR: Yes, sir.
THE COURT: All right. Now if we get past that stage, the State has got to prove beyond a reasonable doubt and say if they don't, a not guilty verdict is found the case ends. If the State proves its case, the murder beyond a reasonable doubt we go to phase two. At that time the State will then prove one of the statuary aggravating factors I described to you. Additionally jurors consider, must consider any of the mitigating factors that have been testified to. And mitigating facts are any reason a Juror would want to impose a life sentence as opposed to a death sentence. Okay.
JUROR: Okay.
THE COURT: Mitigating factors can include the Defendant has no significant history of crime against 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. A Defendant was an accomplice in a 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 a 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. Those are statutory factors that jury's can consider. For instance, under age 18, that one wouldn't apply, that one wouldn't be instructed. But the other things jurors can consider, jurors can also consider non-statutory mitigators like how he was raised up, troubled childhood, broken family, those sort of things. Jurors can consider any mitigating factors. They don't have to be proven to any certain level, they just can be considered if they are heard or seen by jurors. Do you understand?
JUROR: Yes, sir.
THE COURT: Can you give meaningful consideration to the testimony in the sentencing side, to any aggravating factors that the State must prove beyond a reasonable doubt and consider any and all mitigating factors which are presented to the jury, apply the instructions of the Court and reach a fair and impartial verdict in this case?
JUROR: Yes, sir.
THE COURT: Do you have any religious, moral or personal belief as to any reason you could not impose the death penalty?
JUROR: That is a hard question.
THE COURT: Okay and that is why I am asking because I want you to understand, the death penalty is not automatic. If the guilt is proven there is still more to be proven, aggravating factors, consider mitigation, those factors. The jury considers both sides of that and they make a decision. So if the jury reaches a unanimous verdict on a life sentence a life sentence will be imposed. If a jury reaches a unanimous verdict on the death penalty the death penalty will be imposed. Do you understand that?
JUROR: Yes, sir.
THE COURT: All right. So I am going to ask you both ways, do you have any religious, personal or moral belief that you could not impose a life without parole sentence. Could you impose a life sentence?
JUROR: Can I impose a life sentence?
THE COURT: Yes.
JUROR: Sure.
THE COURT: Okay. And going back to the other sentence. Do you have any religious, moral, personal belief you could not impose the death penalty if the facts and evidence and all of that supported it?
JUROR: Yes.
THE COURT: You could do it?
JUROR: Yes.
THE COURT: All right. Do you know any reason whatsoever you cannot be fair and impartial to both sides in this case?
JUROR: There is no reason I couldn't be.
THE COURT: Okay. Fair enough.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Ms. Washington.
JUROR: Good morning.
BOYD YOUNG: How are you today?
JUROR: Fine.
BOYD YOUNG: Thank you for being patient with us throughout this process. I know it is taking a lot of time out of a lot of peoples schedule. Okay?
JUROR: Okay.
BOYD YOUNG: Can you tell me where you were employed at SCDC?
JUROR: First I was in the nursing part, I drew blood and all of that, I was a CNA first and then I became a supervisor, so I did two different departments.
BOYD YOUNG: Were you over at the Broad River complex?
JUROR: Yes, sir. Broad River and Trenton and sometimes Camille Graham.
BOYD YOUNG: Okay. I have a couple of questions. Like the Judge told you about your views, there is no right or wrong answers here. Just how you feel. Okay?
JUROR: Yes, sir.
BOYD YOUNG: Did you understand the Judge to tell you that the law in South Carolina never requires the death sentence. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: There is no set of facts like if A, B and C is proven the appropriate punishment is death. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: It is always up to each Juror for themselves to make a determination. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: The way that works is what we call mitigation, mitigating factors that the Judge talked to you a little bit about. Okay?
JUROR: Yes, sir.
BOYD YOUNG: Now mitigation is not an excuse or a justification or a defense for a convicted murderer. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Like the Judge said, it is stuff about his background, his walk in life. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Do you think for you in deciding whether or not a person ought to live or die that you should take the measure of their whole life?
JUROR: Say that again.
BOYD YOUNG: Sure and if you don't understand my question please just let me know. It was probably a bad question. Okay.
JUROR: Okay.
BOYD YOUNG: Do you think that the background and character of a person is relevant in deciding what the appropriate punishment should be?
JUROR: No, sir.
BOYD YOUNG: You think it should be just what happened?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Well, the Judge told you a little bit about aggravating factors are factors that the State offers to prove why death might be the appropriate punishment. And that has to be proven beyond a reasonable doubt, unanimously found to each of the twelve jurors. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Mitigating factors are different, mitigating factors don't have to be unanimous, they don't have a burden of proof. Okay?
JUROR: Yes, sir.
BOYD YOUNG: One Juror may say, I saw that he had a relationship with his father and for me I want to give that relationship the value of a life sentence and that is fine. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And another Juror may say, I didn't see that, that is not something that I saw but I think for a different reason I think I saw, I think the Defendant might be mentally ill. And based on that factor alone I want to give a life sentence. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And they don't agree on that but they both arrived at a different decision but it was for a life decision. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And it is also, jurors don't even have to have a reason to vote for a life sentence. They can say for no reason at all, I feel like life is the appropriate punishment. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: It is always up to the Juror. You got that?
JUROR: Yes, sir.
BOYD YOUNG: Can you respect the right of a Juror to say, I can't tell you why but I think life is the appropriate punishment.
JUROR: Yes, sir.
BOYD YOUNG: Finally jurors can give a life penalty based on mercy alone. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Who you are and your concept of mercy, do you think that mercy is something that somebody earns or is it something that is sort of freely given?
JUROR: It is freely given.
BOYD YOUNG: The law talks about the ultimate decision about whether or not you, for yourself, decide that the death penalty is the appropriate punishment or you decide for yourself that the life penalty is the appropriate punishment, that is called an individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: It is like choosing what faith is right for you, right?
JUROR: Yes, sir.
BOYD YOUNG: You have made your own decision about your faith?
JUROR: Yes, sir.
BOYD YOUNG: And you recognize that other people have made a different decision about their faith?
JUROR: Yes, sir.
BOYD YOUNG: You expect them to respect your right to make your decision?
JUROR: Not really.
BOYD YOUNG: You don't expect them to respect your choice about your individual moral judgment about your faith?
JUROR: Probably.
BOYD YOUNG: You don't think that people should come tell you like, whatever faith you have chosen is wrong. You should convert to my faith?
JUROR: I believe they could do that.
BOYD YOUNG: And you respect their right to make their own choice about what faith is appropriate for them?
JUROR: Yes, sir.
BOYD YOUNG: And if you saw somebody being bullied or harassed into changing what they had arrived at is their individual moral judgment would you stop it?
JUROR: I would try to stop it.
BOYD YOUNG: And you could send a note to the Judge saying, things aren't being respected, people are being bullied out of their individual moral judgment and that should stop it?
JUROR: Yes, sir.
BOYD YOUNG: Ms. Washington, this decision and I don't know where you were with the Judge, you seemed a little bit hesitant about the death penalty. Are you somebody that says you are open to the State being able to prove to you, to your satisfaction the quantity and quality about which to convince you that death is the appropriate punishment?
JUROR: Yes, sir.
BOYD YOUNG: You could do that?
JUROR: Yes, sir.
BOYD YOUNG: And if you found that death was the appropriate punishment could you sign your name to the sentencing sheet saying that you had found that death was the appropriate punishment?
JUROR: Yes, sir.
BOYD YOUNG: Likewise you are open to saying, for whatever mitigation reason you want that life is the appropriate punishment?
JUROR: Yes, sir.
BOYD YOUNG: Even if it is just your gut feeling that life is the appropriate punishment, you could give that punishment?
JUROR: Yes, sir.
BOYD YOUNG: In decisions about whether or not somebody lives or dies, the law anticipates that twelve individuals might not arrive at the same individual moral judgment. Okay?
JUROR: Yes, sir.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: If each of the jurors, twelve individual moral judgments is for death then the penalty will be death.
JUROR: Yes, sir.
BOYD YOUNG: Did you understand that the Judge told you that?
JUROR: Yes, sir.
BOYD YOUNG: And if each of the twelve jurors individual moral judgments is not for death then the penalty won't be death?
JUROR: Yes, sir.
BOYD YOUNG: All right. Thank you very much.
BOYD YOUNG: Based on the Court's limitation I will stop there.
THE COURT: We will put something on the record when we finish this Juror.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Washington, how are you?
JUROR: Fine.
RICK HUBBARD: Have you ever served on a jury before?
JUROR: Yes, sir.
RICK HUBBARD: You have, what did you serve?
JUROR: Richland County.
RICK HUBBARD: Now you live over in--
JUROR: I live in Lexington County, just off St. Andrews Road.
RICK HUBBARD: Just inside the County line?
JUROR: Yes, sir.
RICK HUBBARD: This is still a new experience for you?
JUROR: Yes, sir.
RICK HUBBARD: I just want to go over a few things. I know you say you worked at South Carolina Department of Corrections for a while?
JUROR: Yes, sir.
RICK HUBBARD: And you take care of your grandbabies?
JUROR: Grandbabies, yes sir.
RICK HUBBARD: Now, how many grandbabies do you have?
JUROR: Too many.
RICK HUBBARD: Too many. About what ages are they?
JUROR: Well the youngest one is three months old. And the oldest one is nineteen.
RICK HUBBARD: Okay. You got a bunch of them?
JUROR: Yes, sir. They all love me.
RICK HUBBARD: And I bet you love them?
JUROR: Yes, sir.
RICK HUBBARD: I ask you that because you understand, this case deals with little babies?
JUROR: Yes, sir.
RICK HUBBARD: And you have talked about the death penalty in general, just in general terms?
JUROR: Yes, sir.
RICK HUBBARD: But this case is going to involve some very graphic disturbing testimony, maybe even some very graphic, very disturbing photos involving these little babies. Considering your views on the death penalty, the fact that you are a caretaker for these grandbabies, you think you can do this or is this something that in your heart of hearts, this just isn't for you?
JUROR: I believe I could do it.
RICK HUBBARD: You could?
JUROR: Yes, sir.
RICK HUBBARD: Okay. I know you have been at SCDC so you have seen the worst and maybe the best of some people?
JUROR: Yes, sir.
RICK HUBBARD: And I see you are a Chaplin of a church?
JUROR: Yes, sir.
RICK HUBBARD: Village of Hope Church?
JUROR: Yes, sir.
RICK HUBBARD: Where is that?
JUROR: Right on River Drive.
RICK HUBBARD: River Drive.
JUROR: 2000 River Drive.
RICK HUBBARD: And that is not a, it is kind of a non-denominational church?
JUROR: Yes, sir.
RICK HUBBARD: With serving on this jury and the subject matter impact you with your church or with those you go to church with.
BOYD YOUNG: Objection, Your Honor.
THE COURT: I will overrule the objection. That is a fair question.
RICK HUBBARD: Would it have any impact on you?
JUROR: No, sir.
RICK HUBBARD: You could do this despite, the Judge had asked you about your religious views, if there was anything that would keep you from serving and you are telling us no.
BOYD YOUNG: Objection, asked and answered, Your Honor.
THE COURT: Overruled.
JUROR: Say that again.
RICK HUBBARD: You said whatever your religious views are you could be a fair Juror?
JUROR: Yes, sir.
RICK HUBBARD: And in the right circumstances you could give life, is that right, under the right circumstances?
JUROR: Yes, sir.
RICK HUBBARD: And then on the one that you said was a hard question, on the death penalty. You said you could be fair there as well?
JUROR: Yes, sir.
RICK HUBBARD: Now, you understand it is just not considering whether death is appropriate but we are asking you, could you actually give someone a death sentence. Do you understand that?
JUROR: Yes sir, I understand.
RICK HUBBARD: So when Mr. Young was asking you about your individual beliefs, you come to a conclusion, you understand for death to be imposed all twelve jurors have to believe that that is the right option?
JUROR: Yes, sir.
RICK HUBBARD: But ultimately you have to decide for yourself, do you understand?
JUROR: Yes, sir.
RICK HUBBARD: And you can't just go with the crowd. Do you understand that?
JUROR: I understand.
RICK HUBBARD: You would have to write your name in ink on a piece of paper, the verdict form, saying death is what we want?
JUROR: Yes, sir.
RICK HUBBARD: So that is like a death warrant?
JUROR: Yes, sir.
RICK HUBBARD: You are saying there is nothing in your heart and sole that would keep you from doing that?
JUROR: No, sir.
RICK HUBBARD: Can I ask you, just generally, what your feelings are about the death penalty?
JUROR: My feelings about the death penalty. One thing I know, we all got to look at death one day.
RICK HUBBARD: I am sorry?
JUROR: We all got to stare death in the eye.
RICK HUBBARD: Stare death in the eye, yes ma'am. I understand.
JUROR: That is the only thing I can tell you about death.
RICK HUBBARD: Well, I understand what you are saying. All of us have to look at death. But as a penalty that we would impose on somebody, do you have a thought on that?
JUROR: Do I have a thought on it?
RICK HUBBARD: Yes, ma'am. Do you have an opinion on that or what you are thinking on that, that we can come in and say you have done something so wrong you deserve to die. Do you have a thought or a feeling on that?
JUROR: My opinion is that, sometimes we, they don't understand what they are doing and maybe they haven't been around enough strong people to have these situations. So life is kind of hard sometimes.
RICK HUBBARD: Yes.
JUROR: And know that we have got to forgive one another and forgive yourself. So as long as you have had did the forgiven part in life you are going to be all right.
RICK HUBBARD: Considering death, how does those feelings affect you when you consider the death penalty, those feelings you have just expressed.
JUROR: By working and preparing last meals for human beings and going through all of that. You got to be strong and I have seen a few of them go, you know, I seen what they use to take them out and I seen the aftermaths and all of that. And I have been able to accept what was going on.
RICK HUBBARD: So you have worked in that environment where you have seen these people get their last meal?
JUROR: Yes, sir.
RICK HUBBARD: You have seen where they have been taken to death row?
JUROR: Yes, sir.
RICK HUBBARD: And they have died?
JUROR: Yes, sir.
RICK HUBBARD: And you accept that as an appropriate form of punishment?
JUROR: Yes, sir.
RICK HUBBARD: A big question. Really today, just knowing all of that, now that I have got that expression from you because you have got that unique background but based on what you have seen, your experience of knowing that system, what people go through could you be the one--
BOYD YOUNG: Objection, Your Honor, asked and answered.
THE COURT: I am going to let her answer again.
RICK HUBBARD: Based on all of that can you be one of those jurors who can sign that death sentence saying someone has to go through it?
JUROR: Can I be one?
THE COURT: No, she thinks, all twelve have to sign.
RICK HUBBARD: Right, all twelve, could she be one of the twelve.
THE COURT: You didn't finish the other twelve.
RICK HUBBARD: I am sorry.
THE COURT: Your hesitation, you said could she be the one.
RICK HUBBARD: No, no, no.
RICK HUBBARD: Could you be one of those people saying, signing that knowing somebody has got to go through that process that you know about.
JUROR: I said if all of us came to an agreement.
RICK HUBBARD: Yes, ma'am.
JUROR: Yes.
RICK HUBBARD: And it would be your name?
JUROR: Yes, sir.
RICK HUBBARD: Knowing that you would put your name there.
THE COURT: She has asked and answered that.
JUROR: Yes, sir.
THE COURT: She has answered it.
RICK HUBBARD: Ms. Washington, I appreciate it. This is something new for all, every case is different and I know you are new to this so we just want to make sure we understand.
JUROR: Yes, sir.
RICK HUBBARD: Thank you so much for your honesty.
JUROR: You are welcome.
RICK HUBBARD: Like the Judge said, there aren't any wrong answers.
JUROR: Thank you.
RICK HUBBARD: Thank you. One more question. There was a note and I think Your Honor may have taken care of it. But you had asked at one point to be exempted or excused.
JUROR: Yes, because of my transportation.
RICK HUBBARD: Okay. All right. I remember that and His Honor took care of that.
JUROR: Yes.
RICK HUBBARD: Okay, very good.
THE COURT: We want to be heard?
BOYD YOUNG: No, Your Honor.
THE COURT: You want to be heard, Solicitor?
RICK HUBBARD: No, sir.
THE COURT: All right. Ms. Washington, I very much appreciate you coming in here. The Court will find you as a qualified Juror meaning you are now gone from whatever panel you are on, you are now a qualified Juror which means you are going to be one of the group, smaller than the 175 we had here Monday. But you are a member of the smaller group qualified meaning potentially you are going to be a Juror in the case. The jury hasn't been selected yet. Did you have trouble going on the internet or get somebody to show you where to look before you came back in today?
JUROR: No, sir.
THE COURT: You got a phone?
JUROR: Yes, sir.
THE COURT: You are going to follow that same website and it is going to say qualified jurors report back on or about Monday at 9:30 or whatever or please check back tomorrow night. You are looking for instructions for a qualified Juror. Until you come back do not talk about the case, do not let anybody question you about the case, you don't ask any questions about the case or do not do any independent research, minimize your view consideration or whatever with the publicity cases. I understand it is difficult. I want you, because you described a lot of things, I want you just like all the jurors, I want you to decide the case based on what is presented here in the courtroom, not what is heard on the street corner or the internet. Can you do that?
JUROR: Yes, sir.
THE COURT: Thank you for coming.
RICK HUBBARD: Your Honor, I have one real quick thing at sidebar, real quick.
THE COURT: Okay. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
RICK HUBBARD: Thank you, Judge.
THE COURT: You are free to go.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We need, the Court needs to address two things. And basically the, the Defense asked a question, if all twelve jurors, individual moral judgment is not for death then life will be imposed.
BOYD YOUNG: I didn't--
THE COURT: Yes, you did.
BOYD YOUNG: No--
THE COURT: Let me ask this, please. That is what I thought I heard and I want to be sure we get, if twelve jurors reach that same moral judgment unanimously then that is the sentence. That is fine. But I thought the question was, if twelve jurors individual moral judgment is not for death then life will be imposed.
BOYD YOUNG: No, sir. It was that there won't be death.
RICK HUBBARD: It is the same thing.
BOYD YOUNG: No, sir.
RICK HUBBARD: You only have two options, it is the same.
BOYD YOUNG: The statute is, the jury should not recommend a death penalty, to vote such penalty is not unanimous.
THE COURT: I know what the statute is, we have been wrangling with this all along. I don't want you to reword the question and then say, Judge, let us do it and the State didn't object. He jumps right up because it is getting really close.
BOYD YOUNG: He didn't object.
THE COURT: What?
BOYD YOUNG: He didn't object.
RICK HUBBARD: No sir, that is, Your Honor said we were going to take it up.
THE COURT: I did. You had already asked the question, it had already been answered. He was standing. I said we will take that up after the Juror. So I recognized him standing up to object to it. It has happened now. I don't want that question, you can't ask, well, Judge, you let us ask the question. We are not getting there.
BOYD YOUNG: If the jury is not unanimous the verdict won't be death.
THE COURT: I understand that but we wrangled this issue and I have been clear we can tell these jurors, these potential jurors if they are unanimous either way that verdict will be imposed. If it is not unanimous we are reading the statute clearly. I agree with you that is what it says. But I don't think, telling them ahead of time that if they are non-unanimous there still-will be life and the Court will impose it. I don't think that is fair to the jury to give them--
BOYD YOUNG: It is not fair to give one side and not the other side. It is not fair to Mr. Jones to tell them, if it is all twelve then it is death. If it is not twelve for death then it won't be death.
THE COURT: If it is all twelve for life it will be life.
BOYD YOUNG: Sure.
THE COURT: That is fair. That is balanced. The middle questions were, I am having grief about because we went over this so much last week and now you are bound again.
BOYD YOUNG: I didn't say agree to disagree. I didn't say no hung jury. I didn't say one vote for life means life. I operated within the Court's guidelines and said if it is not twelve jurors for death it won't be death.
RICK HUBBARD: Judge, here is my response. The whole battle here and where, Your Honor caught me because I was trying to refer back to them.
THE COURT: Well, I am going to fuss at you also because -- could have received by this Juror that you said, can you be the one that will sign the death warrant and referring to her, she would be the only one that would have to sign the verdict form.
RICK HUBBARD: I thought I had asked, not the one but, Judge, that is my problem. I think, can we just from this point forward stop digging this deep and just say, can you do either one and let's just leave it. Because, Judge, we are going where frankly in all my experience we have never gone before.
THE COURT: I haven't done one of these cases--
BOYD YOUNG: I haven't--
RICK HUBBARD: So,--
THE COURT: Y'all keep interrupting me and Joy is going to get on me and then I am really going to get on y'all.
RICK HUBBARD: Yes, sir.
THE COURT: I am comfortable with, if the verdict is unanimous one way that is the sentence that will be imposed. If the verdict is unanimous the other way that is the sentence that will be imposed. No person can be required or coerced in abandoning their individual moral judgment, that can be asked or suggested. But this suggestion that a non-unanimous verdict is going to be life, I am calling that out of bounds. I don't like the question, my ruling, I can't be any clearer. I want to get past this, both of you. And I do not want another question to a Juror that says, can you be the one to sign it. All twelve, that is fine.
BOYD YOUNG: Your Honor, just to put on the record that we object pursuant to Shafer, Kelly and Poindexter, the cases that we have cited all of which indicate that the jurors have to be told about consequences of their verdict and what those imply, the South Carolina statute is clear.
THE COURT: And I have been clear about my ruling, the record is protected.
BOYD YOUNG: And to make sure, the Court is saying you cannot ask jurors if it is not twelve individual moral judgment for death then the penalty won't be death.
THE COURT: You cannot ask that question. You can say, all twelve jurors unanimously agree to death or agree, individual moral judgment agree to life then that sentence will be imposed. Absolutely.
BOYD YOUNG: I understand the Court's ruling. And we would like to address one other issue, Your Honor.
THE COURT: Sure.
BOYD YOUNG: The State went into where does she live, what church she goes to, what are her church members going to think about her verdict. It is completely improper and way out of bounds.
THE COURT: I think the reason he did it because she is a Chaplain, that gave him a little something extra there.
BOYD YOUNG: It didn't, that is just an intimidation tactic, Judge. That is just like we know where you live, we know what church you go to. That is completely improper and they shouldn't do it.
THE COURT: All right. Be careful, Solicitor.
RICK HUBBARD: Yes sir, Your Honor. Following up on the facts she gave. Thank you.
BOYD YOUNG: Can I say one more thing. After this Juror we will take this up, if it does come an issue with this Juror.
THE COURT: Now, bring him in. (Whereupon, Juror 444, Philip Turner came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: My name is Eugene Griffith and I am a resident Judge from the Eighth Circuit. I have been assigned to hear this case. I will ask you several questions. Monday you took an oath to not talk about the case and can't let anyone talk to you about the case. Did you follow my oath and instructions?
JUROR: I did. I had people approach me, they knew I had jury duty on Monday and they saw the news but did not speak about specifics in the case.
THE COURT: Very good. Now, I gave several, I read the allegations in the indictments, gave some facts, there has been a huge amount of publicity this week, last week, four years ago about this case. Has that publicity, where ever it is, whenever it was. Has that caused you to form an opinion as to what you believe happened in this case?
JUROR: No, sir. I hadn't heard about the case until Monday.
THE COURT: Okay. And so now the facts I outlined and the allegations of the indictments, has that caused you to form an opinion in this case?
JUROR: No, sir.
THE COURT: Now, I handed to you, all right, first question on this. Your personal schedule, work, home, vacation, whatever. You got anything on your calendar that would cause you to have to reshuffle everything going on this summer, the trial starts and it may take us close to June to get done. You got anything on your calendar that that would interrupt?
JUROR: In June, I have two weeks in June that I have got obligations, two trips in June but after that--
THE COURT: Which June weeks?
JUROR: June 17th through 21st and 24th through the 28th.
THE COURT: And I likewise have things then. I generally take a week before the 4th for vacation. I don't think we will interrupt that. Now, I gave you a potential Juror list, did you review it?
JUROR: I did.
THE COURT: Did you know any jurors?
JUROR: No, sir. Witnesses.
THE COURT: I have been talking jurors and thank you for correcting me. You are right, potential witnesses, not all of these will be called but potentially they could be. So do you have any relationship with any of them?
JUROR: No, sir.
THE COURT: So if any of them are called you can still be fair and impartial?
JUROR: Yes, sir.
THE COURT: Now, the outline of the criminal procedures and some of the aspects of criminal law. Did you hear my instructions a few moments ago?
JUROR: Yes, sir.
THE COURT: Understand them?
JUROR: Yes, sir.
THE COURT: Likewise I gave you a sheet that identifies, describes three types of potential jurors and this is just real basic, the State proves its case, murder, goes to the sentencing phase, Capital case is stage two. Stage two is imposing punishment for life or death. Can you find yourself, after reviewing that three types of Juror, can you identify yourself, kind of broad picture as one type of Juror?
JUROR: Yes sir, I would identify with type three.
THE COURT: Type three?
JUROR: Yes, sir.
THE COURT: And that type, as I understand it, is open minded, haven't heard anything, wants to hear everything before making and giving consideration to that decision?
JUROR: Yes, sir.
THE COURT: Is that you?
JUROR: Yes, sir.
THE COURT: Now, this case has many different aspects of the law that the Court will try to instruct as it comes and that is what I do. I instruct the law as we go, rule on the law as we go and then at the very end give the jury instructions on how to consider the evidence and testimony they have heard. One aspect about this, goes to stage one initially. Guilt or innocence. The State does not prove its case of murder beyond a reasonable doubt, the case ends. If it is a not guilty verdict it stops the case and it ends and everybody goes home. If the State does meet its burden then we go to phase two and the punishment is determined by the jury. Now, in phase one there are potential defenses. I am going to read off to you. Some of these don't apply, some of them could apply, it depends on the testimony that has been presented as to whether I would instruct it. Potential defenses, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are statutory defenses that can be presented to jurors and jurors can consider if the testimony supports it. This case, there has been a plea of not guilty by reason of insanity meaning there are four potential verdict forms that could be considered by the jury. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty whatsoever. Can you, understanding these defenses are available and must be supported and must be instructed by the Court, can you give meaningful consideration to any and all testimony regarding the burden of proof from the State but also particularly any defenses presented, considering evidence and testimony presented and my instructions on the law. Can you be fair and impartial in this case?
JUROR: Yes sir, I believe so.
THE COURT: And you will give consideration to all of that testimony?
JUROR: Yes, sir.
THE COURT: Now, if the case proceeds to the sentencing phase, at that time the State will then be required to prove an aggravating factor. And so a regular murder case, this is murder, if it is proven the Judge imposes the punishment. The State can only seek the death penalty if an aggravating factor is proved beyond a reasonable doubt in addition to the murder. An aggravating factor, also outline in the statutes, rape, murder, kidnapping of murder, murder of a police officer, murder of a child, multiple murders. Those are some aggravating factors the State must prove in order to support a death penalty request. Now, also during the punishment phase, mitigating factors will be presented, probably the first phase as well as the second phase, will be presented throughout the whole trial. They are not a burden of proving, they are just presented, jurors get to consider mitigating factors for any reason a Juror would want to give a life without parole sentence as opposed to a death sentence.
There are several mitigating statutory factors and I am going to read those to you. 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 and 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. Those are statuary mitigators, other mitigators are any type of testimony such as walk in life, how he was raised, troubled childhood, whatever aspects of his raising up would impact a juror's decision to give the life sentence. Now, understanding this, the sentencing phase two, the murder has been proven, going to the sentencing. The jurors have two choices, life or death. No other choices, those are the two choices. A unanimous verdict of life, a life sentence imposed and carried out. The jury unanimously decides death, death is carried out. Those are the jury's two decisions. Can you give meaningful consideration to any and all facts, factors including the State's burden of proving the aggravating factor beyond a reasonable doubt, any and all mitigating factors presented by any party, any defenses or affirmative defenses that may impact your decision on the sentence. Can you give meaningful consideration to all of that testimony and evidence, consistent with my instructions and be a fair and impartial Juror?
JUROR: Yes, sir.
THE COURT: Do you have any reason that you could not morally, personally, believe that you could not impose a life without parole sentence?
JUROR: No, sir.
THE COURT: No personal, religious or moral belief where you could not impose a death sentence?
JUROR: Religious belief, just with the death penalty, taking into consideration the value of life. And that is something I have wrestled with this last week.
THE COURT: It is not something you are often called upon.
JUROR: That is exactly right.
THE COURT: Would your religious belief, whatever it may be, would it prevent you from signing, because on a death verdict, the sentence if it is unanimous must be signed by all twelve jurors?
JUROR: Yes, sir.
THE COURT: Can you sign a verdict form, I am sorry, a punishment form of that verdict. Can you do that?
JUROR: I believe so, yes sir.
THE COURT: I want you to be comfortable with it. I don't want you to get into half of the trial and say, wait a minute, I am too uncomfortable. I can't do it?
JUROR: I understand.
THE COURT: Can you consider everything, my instructions, still while maintaining your own responsibility of yourself as to your beliefs, can you find if the facts and evidence supports it a verdict of life or death?
JUROR: Yes, sir.
THE COURT: Understanding you have to sign the death verdict form?
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: Now, this subject matter of this case involves the death of children. It will be graphic, it is going to be unpleasant and perhaps harsh. I don't know another way to describe but it is not going to be easy. Would subject matter of that type create an issue for you to be fair and impartial to both the State and the Defense?
JUROR: I don't believe so, no sir.
THE COURT: All right. Those are my questions. Remember, there is no right or wrong answer, it is kind of your opinion, personal beliefs. The lawyers are going to get an opportunity to question you.
THE COURT: Mr. Secor.
EXAMINATION By Mr. Secor:
CASEY SECOR: Good morning, Mr. Turner.
JUROR: Good morning.
CASEY SECOR: How are you?
JUROR: I am well, hope you are.
CASEY SECOR: Good, thank you. The Judge has just talked to you about, a lot about your ability to follow the law and to be fair and impartial which is obviously appropriate. I want to talk to you about your true, personal feelings and I don't want you to be incumbent about the concept of trying to follow the law.
JUROR: Sure.
CASEY SECOR: At this point I just want to know how you feel. Does that make sense?
JUROR: Yes, sir.
CASEY SECOR: All right. Do you remember when you heard about this case originally, whether it was last week or back in 2014?
JUROR: It was Monday.
CASEY SECOR: It was Monday?
JUROR: Yes, sir.
CASEY SECOR: So you weren't really affected by anything in the media at all?
JUROR: No, sir.
CASEY SECOR: The Judge talked to you about the possibility or the fact that there is a plea of NGRI or not guilty by reason of insanity in this case. A plea of not guilty by reason of insanity is s statement by the person saying I did the act or I did the killings but because of a mental disease or defect I was unable to distinguish between moral and legal right and moral and legal wrong at the time. I know that is awfully long, a little bit convoluted but does that kind of make sense to you?
JUROR: Yes, sir.
CASEY SECOR: And in a case, this category of case that we are talking about where a person killed multiple children, does that seem like a verdict, a verdict of not guilty by reason of insanity, does that seem like a verdict that you could be open to even though you knew that the person had killed multiple children?
JUROR: That is a tough one. It is, as a father, trying to figure what that means in my head, right. And then not understanding how the brain works all the time. That is a tough one. But given my duty, I would try my best but I don't know, I don't know what I would say. Does that make sense.
CASEY SECOR: It makes perfect sense. And I guess the question I should have asked, does that plea sound to you like an excuse or a copout or does it sound legitimate to you and something that you could really, consideration to?
JUROR: Not being an expert on human behavior, it does sound like an excuse but also, I guess not understanding how the brain works. Like I said earlier, I don't know how insanity exhibits itself or presents itself in so many different forms.
CASEY SECOR: So you would be opening to learning about that?
JUROR: Sure, yes sir.
CASEY SECOR: Now, I want to really focus on your feelings about punishment.
JUROR: Yes, sir.
CASEY SECOR: And I want to focus on your feelings about punishment for somebody who is guilty of the murder of multiple children.
JUROR: Yes, sir.
CASEY SECOR: And that means that in order to be guilty of murder you have to know the difference between right and wrong and there has to be no excuse, justification or defense and you maliciously kill multiple children. And so for a person like that who has done that, say in your mind you know there is proof beyond a reasonable doubt, there is no question about it, this is the person who did it. What are your feelings about the death penalty, knowing that there is two punishments?
JUROR: Right.
CASEY SECOR: What are your feelings about the death penalty as the appropriate punishment for a guilty murderer of multiple children?
JUROR: So I believe that every human life is valuable, part of my faith dictates that. But I also, I preached yesterday, Romans 13:1, that we are called as believers, if I am able to speak about that personally.
CASEY SECOR: Of course.
JUROR: That there is, we are subject to the governing authorities and so there is law and order in America. And so there is an obligation for everybody to abide by consequences of actions. I believe there are natural consequences to every action that man does. And so in this case a natural consequence to murder would be the death penalty or life without parole. And so that is what, that is what I have wrestled with.
CASEY SECOR: But in your mind the natural consequence is one or the other, you don't start at one punishment, you lean one way?
JUROR: No sir, no sir, I don't.
CASEY SECOR: Okay. And I guess, based on what you are saying, I assume that you do not subscribe to the concept of an eye for an eye, that type of mentality towards Capital punishment?
JUROR: No, no sir.
CASEY SECOR: I appreciate that. I just want to run quickly through concepts about how things in a penalty works in Capital cases. Okay. The death penalty is never required, not in any case, not the worst case you can possibly imagine. The law is always satisfied with a sentence of life without parole. Does that make sense to you?
JUROR: Say that one more time.
CASEY SECOR: The death penalty is never required in any case ever in South Carolina, in the United States. The law is always satisfied with a sentence of life without parole in a Capital case, worst case you can possibly imagine, life is an acceptable punishment. And the way that works is through the concept of what the Judge said, mitigation, mitigating evidence is any reason to vote for a sentence of life without parole instead of the death penalty. Does that make sense to you?
JUROR: Yes, sir.
CASEY SECOR: And mitigation is never offered as an excuse or a justification. It is just the penalty phase, you have already found the person guilty. Right?
JUROR: Yes.
CASEY SECOR: And it doesn't have to have anything to do with the murders themselves. It could have to do just with the character, background of the guilty murderer. Does that sound fair to you?
JUROR: Sure.
CASEY SECOR: Are those types of things you think are relevant to punishing a guilty murderer, their character and background?
JUROR: Yes, sir.
CASEY SECOR: You do. Okay. Another thing, the aggravating factors that the State would present to you in the penalty phase have to be proven beyond a reasonable doubt unanimously to all jurors. Mitigation has no burden of proof and does not require unanimity and that is because the law allows each individual Juror to find mitigation themselves in whatever they see or experience during the trial. Does that make sense to you?
JUROR: Yes, sir.
CASEY SECOR: And the law says that a Juror may impose a life sentence for any reason, no reason or based on mercy alone. So when I say, any reason, it would be something like one Juror would say, I saw that he had a good relationship with his father and I am going to give that the value of life. Another Juror might say, I didn't see that relationship with the father but I believe he has mental illness and I am going to give the value of life to that mitigating factor. They disagree with one another but they both found mitigating factors that they believe have the value of life and they are entitled to use that themselves. Does that make sense to you?
JUROR: Yes, sir.
CASEY SECOR: Okay. The idea of giving a life sentence for no reason is simply that. The law empowers a person to just say, I don't have a reason but I am voting for life. Can you respect a juror's right to do that.
JUROR: Yes sir, I believe so.
CASEY SECOR: It is just the law doesn't require a person to articulate their reason.
JUROR: I got you.
CASEY SECOR: And the last reason is mercy, meaning that a Juror can say I have heard everything, I have considered everything. In this case I have decided that a merciful act is what I want to do and I am voting for life for mercy alone. Does that seem appropriate to you?
JUROR: Yes, sir.
CASEY SECOR: And you could respect a juror's decision to do that despite whatever else the evidence was?
JUROR: Sure.
CASEY SECOR: Okay. The ultimate decision for a Juror in a Capital case is based on their individual moral judgment. When it comes to decide whether to kill another human being you have based that on your individual moral judgment. The law, of course, requires you to deliberate reasonably and respectfully with your fellow jurors. But when it comes time to make your decision it has to be based on your individual moral judgment and a Juror is not allowed--
THE COURT: Ask questions now.
CASEY SECOR: I am sorry.
THE COURT: You are preaching to the preacher.
CASEY SECOR: Yes, sir. I am sorry, I lost my--
THE COURT: You were at the point, once you have reached an individual moral judgment, the respect of others.
CASEY SECOR: Yes, sir.
CASEY SECOR: And the point that I am trying to get to, is that some people have a more difficult time standing up for themselves. And it is important that other jurors help people who have reached their individual moral judgment. And could you do that. If you saw a person who you felt had reached their individual moral judgment and they were being bullied or pressured out of it, you could say stop, that is against the law, you can't do that.
JUROR: You mean in a jury deliberation or something along those lines?
CASEY SECOR: Yes.
JUROR: Yes, sir. Absolutely.
CASEY SECOR: And if necessary you could alert the Judge that that was happening?
JUROR: I believe so, yes.
CASEY SECOR: Okay. Thank you very much, just one moment please. Thank you, sir.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Mr. Turner, my name is Shawn Graham, I am one of the Deputy Prosecutors in this case. Good morning.
JUROR: Good morning.
SHAWN GRAHAM: If you were Governor for a day and you had the option of keeping the death penalty or getting rid of it for the type of cases we are discussing what would you do?
JUROR: I have seen too movies, right, and read too many articles of folks that are waiting on death row who are later on found not guilty. So that is a tough question. I would like to think of myself as a man of principle and so while I am not an eye for an eye, as the Gentleman just asked me, I do understand we have laws and there are consequences to our laws, to our actions because of our laws. So if the death penalty is a natural consequence to murder then I think we have to abide by that.
SHAWN GRAHAM: Let me follow-up. If you could make the law, that was the question. And I know it is a tough subject.
JUROR: It is a very tough subject. I don't think anybody really wants to be sitting right here. To keep the death penalty or get rid of it.
SHAWN GRAHAM: And it was your choice.
JUROR: For one day.
SHAWN GRAHAM: Your choice on that day to determine what happens, that is what the law would be.
JUROR: That's right. I guess I would keep the death penalty. I think I would.
SHAWN GRAHAM: You said that you preached on Romans 13:1 this week?
JUROR: Yes, sir.
SHAWN GRAHAM: Did you choose that topic?
JUROR: I did, I did. I was speaking and just happened to fall with what I was preaching.
SHAWN GRAHAM: So the whole week you were preparing and you were struggling with this, I think that is what you actually said, you had wrestled all week with the idea of the death penalty?
JUROR: Yes, sir. And that was a topic that was chosen before Monday. So it is just strange, yes.
SHAWN GRAHAM: And based on that wrestling that you had, I guess it is our personal belief now that that law is out there and you said if you were Governor you would allow it to stay on there?
JUROR: Yes, sir.
SHAWN GRAHAM: So in the appropriate situation, depending on the facts and circumstances of the case, listening to the good and the bad, you could vote for life if you thought it was appropriate. And if the circumstances warranted it you could not only vote for death but actually sign your name to a document so that a death sentence would be carried out?
JUROR: Yes, sir. That is to me, as the Judge asked earlier, just the thought of that is tough, right. But if I were to go through everything that has to go through to get to that point then, yes sir.
SHAWN GRAHAM: Thank you very much.
JUROR: Yes, sir. Thank you.
THE COURT: You want to be heard on this?
CASEY SECOR: No, sir.
THE COURT: Would you like to be heard on this?
SHAWN GRAHAM: No, sir.
THE COURT: Mr. Turner, the Court finds you qualified to be a Juror. So you are not a potential Juror, you are a qualified Juror. You are going to monitor the website for about a week or so, monitor it each night and it will say qualified jurors please check back tomorrow night. Qualified jurors please finally come in and report to this courtroom on such and such date and time. Until such time don't discuss the case. Don't ask people about it, don't let people ask you about it. Don't do any independent research. Minimize the publicity contact. It is almost impossible to say, don't have any contact, somehow it will happen. I want you to come back into the courtroom saying, Judge, I am still open to everything. I have not formed an opinion. So that is what I am looking for, open minded, fair and impartial Juror and you are under your oath to do so.
JUROR: Yes, sir.
THE COURT: Enjoy the rest of your day.
JUROR: Thank you.
THE COURT: We will take a break.
(Whereupon, a short break was taken.)
THE COURT: Bring him in. (Whereupon, Juror 329, Anh Pham entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Mr. Pham?
JUROR: Pham.
THE COURT: Pham?
JUROR: Yes, sir.
THE COURT: It is an M?
JUROR: M.
THE COURT: Okay, there was a family of Phan's with an N growing up that I went to school with in Newberry. Good morning.
JUROR: Good morning.
THE COURT: My name is Eugene Griffith again, I gave you some instructions Monday about the indictments. I also asked you to take an oath to not talk about the case. From that time forward have you talked about the case with anyone?
JUROR: No.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: My wife was asking me a few questions about it but I told her I couldn't talk about it.
THE COURT: That is the appropriate response. Now, there has been a lot of publicity on the case as well as my reading of the indictments during Monday's preliminary instructions to the jurors. Has anything you have heard, whether it be publicity or presentation of the indictments, have you, has it caused you to form an opinion as to what happened in this case?
JUROR: I haven't made an opinion yet.
THE COURT: Fair enough. I also asked you about your personal schedule. What have you got on the agenda for the rest of this month getting into early June that would prevent you from being a good Juror, or a non-frustrated Juror being imposed upon?
JUROR: Other than my work schedule I am free.
THE COURT: Okay. And everybody has potential work complex issues to manage and if you were selected you could serve but for your boss wanting to know, make certain you are on jury duty?
JUROR: Right, correct.
THE COURT: And we could provide that. The Clerk of Court could say you have been selected. We could help you minimize that.
JUROR: Yes, sir.
THE COURT: Did you have a chance to review the potential witness list?
JUROR: I did.
THE COURT: And that is potential witnesses, not exactly the ones that are going to be called but potentially could be called. Do you understand?
JUROR: Right. I did recognize a name on the list.
THE COURT: You did recognize a name?
JUROR: Yes.
THE COURT: Who did you recognize?
JUROR: Shawn Gorski.
THE COURT: And how would you know her?
JUROR: About seven years ago my wife and I were separated at the time, we were working out formal joint custody arrangement and she was a Guardian Ad Litem.
THE COURT: For your children?
JUROR: For our daughter at the time.
THE COURT: Just one child?
JUROR: Yes.
THE COURT: Now, you said, you discussed your wife. Is that matter now--
JUROR: We reconciled and everything, we got back together.
THE COURT: That is so good to hear. And Ms. Gorski obviously then didn't have any further work to do other than what she did?
JUROR: Just, just for the one time in her office and then another time when we ratified our custody agreement.
THE COURT: And she had to make a report of y'all's ratification and agreement and getting back together was certainly okay to do?
JUROR: Right.
THE COURT: Reconciliation is favored under our law. Very proud to hear you tell me that?
JUROR: Yes, sir.
THE COURT: And that is not an issue in this case but personally thank you?
JUROR: Yes, sir.
THE COURT: Other than her, the fact that she may be a witness in this case, would that create an issue for you being fair and impartial to both sides?
JUROR: No, sir.
THE COURT: Now, I gave you a limited instruction on the law about some aspects of criminal procedure, the definition of murder, potential plea that has been entered here in this case and very scant facts you have got. So not much facts out there but in big terms there will be a lot of testimony and evidence presented during the trial. But prior to that, just knowing what you feel now if the case were and you were on the jury, I am trying to find out what type of potential, typical Juror you might be. Did you read that three types of jurors summary?
JUROR: I read that. I would fall into the third category.
THE COURT: You find yourself very quickly a three?
JUROR: Yes, sir.
THE COURT: And would that be because you want to hear everything before making a decision?
JUROR: I would like to know everything about what is going on, all the factors into it and then go from there.
THE COURT: I want to make certain we are clear. There is two stages. Stage one, guilt or innocence only and defenses can be presented. If there is a not guilty verdict in stage one the case ends. If the State meets its burden of proving the case beyond a reasonable doubt then the case will proceed to stage two and then other things are presented to the jurors. So I am going to ask you about stage one first and then stage two second. Okay.
JUROR: Yes, sir.
THE COURT: And stage one, the State has got to prove murder beyond a reasonable doubt, all the elements. Mr. Jones is presumed innocent, he will be presumed innocent until the State overcomes that burden by proving the case, each element, beyond a reasonable doubt. Now there is some statuary defenses and I am going to read them off to you that are available, not all of them will be applicable but I am going to read them all nevertheless.
JUROR: Yes, sir.
THE COURT: Potential defenses are accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Now, understanding that Mr. Jones has entered one of those defenses by not guilty by reason of insanity meaning that you will consider, let me change my question. Can you consider the aspects of the instructions on the law of any of those defenses, the burden of proof the State has beyond a reasonable doubt, with the facts and evidence that is presented during the guilt or innocence phase, give meaningful consideration to all the evidence and making that determination consistent with my instructions. Can you do that?
JUROR: Yes, I can.
THE COURT: Okay. And understanding this, that the potential verdict form in this case will have four potential verdicts, guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Can you give meaningful consideration to any of those four potential verdicts?
JUROR: Yes.
THE COURT: Is there any of those four potential verdicts that you cannot give consideration to?
JUROR: No.
THE COURT: Now, if guilt is found beyond a reasonable doubt we go to stage two, phase two. Punishment at that time is up to the jury. There are two potential punishments, life or death, nothing else is on the table. Those two decisions, the jury will make one of those two, there is no in between. The jury considers whether the State has proven one of the statutory aggravating factors which would enable them to ask for a death penalty. Aggravating factors defined in our statute is perhaps, murder of a police officer, rape of murder, kidnapping of murder, murder of a child, murder of multiple victims. Understanding those are aggravating factors, one of which the State has to prove beyond a reasonable doubt. The jury is also allowed and required to consider any and all mitigating testimony and evidence that is presented during the trial. Mitigating factors are a factor which would cause one to want to give life without parole as opposed to the death penalty. Do you understand?
JUROR: Yes, sir.
THE COURT: Statutory factors to consider could be and these are just ideas, 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 under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct with 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 had mental retardation at the time of the commission of the crime. Those are statutory, some may apply and some may not, depending on the testimony. Other factors that can be considered mitigating are the Defendant's walk in life, broken childhood, broken home from a childhood, anything whatsoever a Juror can assign in a mitigating factor. Can you give meaningful consideration to the State's burden of proving an aggravating factor, mitigating factors, testimony and evidence of those, considering my instructions, the aspects of how those laws apply and be a fair and impartial Juror in this case?
JUROR: Yes, I can.
THE COURT: Now, can you or do you have any personal belief, religious or moral or otherwise which would prevent you from making a finding of a death penalty verdict?
JUROR: No, I do not.
THE COURT: Do you have any religious, moral, personal beliefs which would prevent you from finding any life without parole sentence is appropriate?
JUROR: No, sir.
THE COURT: Very well. Do you understand this subject matter in this case will be involving the death of children. It will be difficult, unpleasant, harsh at times, won't be easy. Would the subject matter of that type create an issue for you where you could not still be, in spite of that harsh testimony, be fair to both sides, the State and the Defense?
JUROR: I can be fair.
THE COURT: You can do that?
JUROR: Yes, sir.
THE COURT: Mr. Young.
THE COURT: He is going to ask you, remember, you are under oath, no wrong answer.
JUROR: Yes, sir.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning.
JUROR: Good morning.
BOYD YOUNG: The Judge told you, my name is Boyd Young, I am one of Mr. Jones attorneys. Okay?
JUROR: Okay.
BOYD YOUNG: The Judge talked to you about your ability to be fair and impartial and follow the law. Right now I just want to talk about your personal feelings. Okay?
JUROR: Okay.
BOYD YOUNG: I noticed that you stood up on Monday and said that you had heard information about this case. Is that right?
JUROR: Right.
BOYD YOUNG: Can you tell me what it was that you heard, saw or read?
JUROR: The Sunday before, I was letting my teammates from work, letting them know I was coming in for jury duty. And one them said he thought it could be related to what is in the media. So I looked it up on the internet and found the story on the State news about jury selection for this trial. I read that entire news story, that is when I first heard about this, this case in Lexington.
BOYD YOUNG: Did that news story like have a summary of the facts and allegations?
JUROR: It talked about some of the findings that authority made and people involved. Whatever was in the State's story that Sunday is what I read.
BOYD YOUNG: Based on what you read did you inform an impression in yourself about what should happen to Tim Jones?
JUROR: Well, when I read the story I was really shocked about what I read in the story. But there really wasn't much to go on but just reading the story itself, it was just, you know, the story was a shocking story.
BOYD YOUNG: Shocking allegations?
JUROR: Right.
BOYD YOUNG: Did you form an impression about what should happen to Mr. Jones?
JUROR: Well, I, when I read the story I was like, I have a four-year-old son and so when I read the story I just couldn't imagine how something like this could happen. So that was my initial impression.
BOYD YOUNG: Okay. If I understand you, you are saying you didn't inform an impression about like what should happen to him, should he live, should he die?
JUROR: Well, the story didn't give much what happened, like if he was on medication at the time or any factors that played a role. So I would like to know all the factors before I pass judgment.
BOYD YOUNG: I understand where you are coming from. The Judge told you that Mr. Jones has plead not guilty by reason of insanity?
JUROR: Right.
BOYD YOUNG: You understand that?
JUROR: Right.
BOYD YOUNG: And that means that when you plead not guilty by insanity you say, I did the killings. Right?
JUROR: Right.
BOYD YOUNG: But because of a mental disease or defect I was unable to appreciate the legal or moral wrongfulness of the actions?
JUROR: Right.
BOYD YOUNG: Is that what you understand not guilty by reason of insanity?
JUROR: Yes, sir.
BOYD YOUNG: And some people say that not guilty by reason of insanity is sort of a copout, it is not a defense that I really can give meaningful consideration to.
JUROR: Right.
BOYD YOUNG: Is that you?
JUROR: No. As a copout, no. I mean, I don't know, maybe he was on medication that affected his judgment at the time or something like that. So I have had friends who were on drugs for some things they are going through and once they are on it it really affected their judgment and they had thoughts they never had before and they tell their doctor about them. So if it is something like that I would definitely take that into consideration.
BOYD YOUNG: Okay. Let me talk to you a little bit about your views about the death penalty. In order to talk about the death penalty we need to be on the same page here. We are talking about somebody who has been convicted and found guilty of murder. Okay. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: That means whatever evidence the jury heard about not guilty by reason of insanity, they have rejected that. They said, no, he knew the difference between right from wrong and he had no excuse, justification or defense and he maliciously murdered multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And in a case like that, that type of case, what are your thoughts about the appropriateness of the death penalty?
JUROR: Well, if anyone did what they did of their own free will and they weren't on any type of influence chemically or whatever wise, I think they are deserving the death penalty certainly.
BOYD YOUNG: Is it sort of automatic right then, like you knew what you were doing, you chose to kill, automatically get death?
JUROR: Well, I mean, if there weren't any type of intoxication or whatever, anything, if they weren't under the influence of anything and they knew what they were doing then I think the death penalty is appropriate. But if there are mitigating factors, for instance, they weren't getting the psychiatric treatment they needed for some type of impairment or some type of mental imbalance, I think that should be factored in as well.
BOYD YOUNG: Okay. So you think that even under those circumstances, knew what they were doing, chose to kill, do you think that life could be a substantial enough punishment for that type of guilty murder?
JUROR: I think that life can be appropriate in some situations, yes.
BOYD YOUNG: Okay. And if I understand what you are saying, don't let me put words in your mouth.
JUROR: Okay.
BOYD YOUNG: This is just our time to talk.
JUROR: Right.
BOYD YOUNG: Some people say, you know, when you go to decide whether or not a person lives or dies, you should take a full measure of their life?
JUROR: Yes, definitely.
BOYD YOUNG: Does that sound like that resonates with you?
JUROR: Yes, sir.
BOYD YOUNG: The concept of the death penalty, is that something that you think is sort of reserved for the worst of the worst?
JUROR: I think it definitely is deserved for the worst of the worst and is appropriate in this case.
BOYD YOUNG: I am going to talk to you a little bit about how this decision is made by jury's. Okay?
JUROR: Yes, sir.
BOYD YOUNG: And it is really, you understand that death is never required, there is no set of facts that say, all right, this is, death is the appropriate punishment. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: There is not a formula where the State proves A and B and it equals the appropriate punishment is death.
JUROR: Okay.
BOYD YOUNG: It is up to each individual Juror.
JUROR: Okay.
BOYD YOUNG: And how we get there is called mitigation, mitigating circumstances. Do you understood the Judge talked to you about those a little bit?
JUROR: Right.
BOYD YOUNG: And those are different from aggravators in they don't have a burden of proof, they don't have to be unanimously found by the entire jury. Okay. Each Juror draws their own conclusion about what is or not mitigating for them. Do you understand me?
JUROR: Right.
BOYD YOUNG: Juror one may say, for me I saw he had a loving relationship with his father and based on that I am going to give that relationship the value of life and I am going to find life for that reason. Do you understand that?
JUROR: Right.
BOYD YOUNG: That is totally appropriate. Is that how you understand the law works?
JUROR: Well, I mean, I am sorry, can you say that again.
BOYD YOUNG: Sure.
JUROR: I want to make sure I understood you.
BOYD YOUNG: One Juror can say I saw that he had a loving relationship with his father.
JUROR: Right.
BOYD YOUNG: And based on that relationship alone I am going to decide that life is the appropriate punishment for me just based on that relationship. And it might not be you, you might not, you might say, well, that is not a reason for me. But if a Juror finds that reason they are entitled to it.
JUROR: A person is entitled to what they believe but it needs to be pertinent to the case at hand.
BOYD YOUNG: And you wouldn't find that pertinent?
JUROR: In regards to this case before the Court?
BOYD YOUNG: Any case, in any case, and in the Defendant in taking a full measure of their life?
JUROR: I think, yes, sure, that can play a factor. I think I would treat, it definitely plays a role.
BOYD YOUNG: Okay. And my point is that Juror number two could say, well, I thought he was mentally ill. And based on that mental illness it didn't rise to a level of insanity but I am going to say that based on mental illness I put the value of life on that. So I am not going to kill for that reason. Does that make sense to you?
JUROR: That makes sense to me, yes.
BOYD YOUNG: And there are two jurors don't agree, they are conflicted. They, it wasn't unanimously found, it wasn't beyond a reasonable doubt but each Juror believes that and they are entitled to that belief. Does that make sense to you?
JUROR: Right, that makes sense.
BOYD YOUNG: And a Juror can say, I don't have a reason, I have no reason but I think life is the appropriate penalty for me. And the law is satisfied with that too.
JUROR: Right.
BOYD YOUNG: Can you respect the right of a Juror to say, I can't explain it to you, I can't put it into words but this is what is right for me.
JUROR: Right.
BOYD YOUNG: Can you respect their right to do that?
JUROR: Yes, sir.
BOYD YOUNG: And finally they can also recommend a penalty for life for what is called mercy alone. Does that make sense to you?
JUROR: Right.
BOYD YOUNG: In your concept of mercy, is mercy something that is earned or is it something that is sort of freely bestowed on another?
JUROR: It is freely bestowed.
BOYD YOUNG: And ultimately this decision about who lives and who dies is called an individual moral judgment. Do you understand that?
JUROR: Right?
BOYD YOUNG: It is like choosing what faith is right for you. You have made your own choices about that?
JUROR: Right.
BOYD YOUNG: And you recognize that other people have made different choices for themselves about their faith?
JUROR: Yes.
BOYD YOUNG: And they might not agree with yours?
JUROR: Certainly.
BOYD YOUNG: You respect their right to do that?
JUROR: I do.
BOYD YOUNG: And you expect them to respect your right to have your own faith?
JUROR: Certainly.
BOYD YOUNG: And in a decision like a life or death or what faith is appropriate, people can make different choices?
JUROR: Right.
BOYD YOUNG: And if you saw somebody who was being bullied or pressured into giving up what they had arrived at as their individual moral judgment, would you say, well, wait a minute, they are entitled to their opinion, that needs to stop?
JUROR: Right, bullying isn't a place, everyone is entitled to their opinion.
BOYD YOUNG: The law is that each Juror makes their individual moral judgment about their appropriate punishment. Are you with me on that?
JUROR: Right?
BOYD YOUNG: And it is your duty and obligation as a Juror, it is your oath, to make sure that your individual moral judgment is heard. Does that make sense to you?
JUROR: Right.
BOYD YOUNG: Thank you, Mr. Pham. Based on the Court's limitations that is all I have.
THE COURT: Ms. Mayes.
SUZANNE MAYES: If it please the Court.
THE COURT: Yes, ma'am.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good morning.
JUROR: Good morning.
SUZANNE MAYES: My name is Suzanne Mayes and as a Deputy Solicitor I am one of the Prosecutor's in this case. So we represent the State. Just wanted to ask you a few questions. You just responded to Mr. Young that you did see an article on Sunday before coming in for jury selection?
JUROR: I did.
SUZANNE MAYES: And you actually read the article.
JUROR: I read the article.
SUZANNE MAYES: Now, with that in mind would you be able to follow the instructions of the Judge and set aside anything you read in that article and be fair and impartial in this case?
JUROR: I can and I will.
SUZANNE MAYES: Mr. Young was asking you about mitigating factors and mitigating circumstances that may be offered by the Defense during the course of this trial. Is that something that you are open to and open to listening to and evaluating during this trial?
JUROR: Yes, ma'am.
SUZANNE MAYES: And the Judge explained to you the options, if this case gets to a second phase of the trial, the options would be life without parole meaning he never gets out of prison and the other option would be the death penalty.
JUROR: Yes, ma'am.
SUZANNE MAYES: Are both of those options that you can consider in this case?
JUROR: I will.
SUZANNE MAYES: And reaching a decision, ultimately, about the punishment, as the Judge explained, there would be aggravating circumstances and mitigating circumstances. Can you consider both types of evidence?
JUROR: I can.
SUZANNE MAYES: And would you be able to consider each of the factors that are presented?
JUROR: Yes.
SUZANNE MAYES: And after hearing all of the evidence and factors, aggravating and mitigating, if you determine that life without parole was the appropriate sentence, could you make life without parole the choice?
JUROR: Yes, ma'am.
SUZANNE MAYES: And if after hearing all of the evidence, you determine that the death penalty was appropriate, could you give the death penalty as your verdict?
JUROR: I could.
SUZANNE MAYES: And with that death penalty verdict, if that were the decision reached by jurors unanimously, there would be a form that goes along with that verdict where every member of the jury must sign their name and acknowledge that the death sentence is their verdict. Would you be able to sign that form?
JUROR: I would.
SUZANNE MAYES: Thank you.
JUROR: Yes, ma'am.
BOYD YOUNG: Nothing from the Defense.
THE COURT: Anything we need to put on the record.
BOYD YOUNG: No, sir.
THE COURT: The State?
RICK HUBBARD: No objection. Thank you, Your Honor.
THE COURT: All right. Mr. Pham, you have been determined by the Court, based upon the answers to the questions and responses the Court has heard from the lawyers and from the Court itself, that you are going to be a qualified Juror. What that means is, now you are going to be on the list of potential qualified jurors. So you are no longer a potential Juror, you are a qualified Juror. The website you were following on when to come back from this panel, you will look at it again but follow the instructions on qualified jurors. It may say, check back again tomorrow, check back again the next day. Finally it is going to say, please report back to the Lexington County Court House, this courtroom at such and such time and date and then come in then. Until that time you are still going to remain under oath. I want you to not talk about the case, do not discuss the case, do not answer any questions about the case. The responses of, I was told not to talk about the case will remain. Don't do any independent research, don't go perusing any of the publicity the case has got. What you need to decide the case you will get in here in the courtroom by the testimony of the parties and the instructions of the Court and consistent in, at the same time with all the other jurors, if you are selected as a Juror. Can you accept that oath?
JUROR: Yes, sir.
THE COURT: Watch the website and we will see you back next week sometime.
JUROR: Yes, sir.
THE COURT: Anything before we bring the next one in. The next Juror is 476. (Whereupon, Juror 476, Christopher Wilde entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Mr. Wilde?
JUROR: Yes, sir.
THE COURT: You spell it, W-I-L-D-E?
JUROR: Yes, D-E.
THE COURT: All right. Sir, my name is Eugene Griffith, was introduced to you several times. You were in the courtroom Monday when we went over all of the preliminary qualification questions, very general.
JUROR: Yes, sir.
THE COURT: You took an oath not to talk about the case?
JUROR: Yes.
THE COURT: Have you talked about the case since Monday?
JUROR: I have not.
THE COURT: Has anyone tried to engage in questions and answers with you about the case?
JUROR: No, sir.
THE COURT: Very good. Now, there has been publicity about this case several years ago, last week, this week. Also Monday I read the indictments and said, this case involves allegations of and I gave you particular allegations of fact outlined by the State. Any of those facts, whether it is publicity or allegations in the indictments, anything you have heard prior to right now caused you have not formed an opinion?
JUROR: Well, I mean, obviously I read it when the story first broke four or five years ago. But actually I forgot about it since then. So and since I was called here I haven't read or anything like that. So, I read what was happened and that was about it off the media.
THE COURT: Okay. And so you have not formed an opinion, it involves the death of children.
JUROR: No, I have not formed an official opinion.
THE COURT: Okay. Now, from this point I want you to maintain that oath to not discuss the case or look into it?
JUROR: Yes, sir.
THE COURT: I ask you to tell me about your personal schedule coming up, whether it be work, personal or otherwise. You got anything in the horizon through the end of May, close to early June which if you were selected as a qualified Juror could you serve?
JUROR: I have a son graduating June 7th from high school. And we are planning a four-day trip prior to that graduation.
THE COURT: Prior to?
JUROR: Prior to. Family coming down for graduation and my son graduates from River Bluff High School on June 7th.
THE COURT: I think this is very similar to the other gentleman I had in here. All right. If it was just finishing school I would probably tell you, sorry Charlie. But this is a child graduating from high school.
JUROR: I am not going to miss it.
THE COURT: I know. I don't want to be the guy that says you have got to miss your son's graduation. I am going to excuse him for personal obligation, child graduation and trip. Mr. Wilde, thank you for being candid with me. I don't want to impersonally impose. You are excused.
JUROR: Thank you so much.
THE COURT: Okay, we are going to bring in 383. (Whereupon, Juror 383, Geoffrey Shackley entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Will you spell your first and last name and I am going to remind you you are under oath.
JUROR: Yes, sir. I am Geoffrey Shackley, that is G-E-O-F-F-R-E-Y-; S-H-A-C-K-L-E-Y.
THE COURT: Mr. Shackley, my name is Eugene Griffith and I have introduced myself a couple of times to you. You were here with us Monday and when we did the original qualification. And I ask you to take an oath to not discuss the case with anybody. Have you not discussed the case?
JUROR: Yes, sir.
THE COURT: Has anybody tried to discuss the case with you?
JUROR: I did, as you mentioned, I mentioned to my family what was going on. My dad did try to send me an article, is this the case you are on? And I said, I can't read that.
THE COURT: That's correct. Is that how you responded to him, I can't read that?
JUROR: Yes.
THE COURT: That is a very appropriate response. Now, I ask you this. There has been publicity about the case. Obviously your dad was quizzing you on that. Both before you got here Monday there was publicity about it, five, four years ago, recently, this week, whatever the source plus I read the indictments in open court, in the big courtroom. Has anything that you have heard up to this point, no matter what its source, has anything caused you to form an opinion as to what you believe has happened in this case?
JUROR: Honestly, sir, yes.
THE COURT: All right.
JUROR: Everything that I heard last Monday.
THE COURT: All right. There are allegations, five indictments, murder allegations against Mr. Jones. He is presumed innocent right now. Has that caused you to form an opinion as to his guilt or innocence?
JUROR: Yes, sir.
THE COURT: Now, I also sent back, gave you my instructions on the law earlier. Kind of the procedure, two-step process to a Capital case, guilt or innocence and the punishment. There are jurors that are typically, I guess, described in cases like this are type one, type two, type three. Did you understand my instructions first of all?
JUROR: Yes, sir.
THE COURT: Did you understand my typical two types of, I mean, three types of jurors? Did you understand that sheet you read?
JUROR: Yes, sir.
THE COURT: Can you find yourself as any one of those types?
JUROR: I feel like in regards to what I know about this case I am a hard number one.
THE COURT: Okay. And that is, there is no wrong answer. You remember me telling you that over there. These are opinions, everybody is entitled to an opinion. But you think you are a hard number one?
JUROR: Yes, sir.
THE COURT: I appreciate your candor. 383, Mr. Shackley will be excused. Thank you.
JUROR: Thank you, sir. I appreciate it.
THE COURT: All right, we have got the two that were late. What about the other eight, they will be here at 11:30. Any objection to me bringing these two in, read the same instructions, quiz them why they were late. I mean, they weren't very late, they both called and made inquires of the Clerk to let us know.
BOYD YOUNG: No, sir.
THE COURT: Let's do the same thing, bring them in. (Whereupon, Juror 183, Ryan Hatcher; Juror 275, Carolyn Mayers entered the courtroom.)
THE COURT: I want to talk to y'all for a minute. Thank y'all for calling and letting us know you were running late. The reason I ran you out earlier, I read a preliminary statement of law, a little bit about the procedure and some of the proceeds it goes through in a case like this and I want you to hear it before you come back in and answer questions and y'all missed that on the first six. Here it is and then I will bring you in one at a time and then ask questions about your schedule and things, any potential witnesses and such as that. Now, I am going to read this to you and put you back outside and bring you back in one at a time and ask you questions. And you are under oath and there are no wrong answers. Some of it is your personal beliefs. You have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Eugene Griffith, Jr. and I am the presiding Judge. Mr. Jones has been 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 excludes any just cause or excuse for the killing. When the State alleges the defense of murder, combined with certain aggravating circumstances the State can then seek the death penalty. Before and during the trial an accused is presumed innocent to each element of the crimes which he is accused and charged. The State must prove these elements, each and every one of them, to a standard of proof called beyond a reasonable doubt. In most criminal cases the 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 into two parts potentially. The guilt or innocence phase and then if necessary the punishment phase.
In the first portion, the first phase of the case, the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused guilty of murder then the trial proceeds into the second phase or the punishment phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury will consider aggravating and mitigating circumstances and evidence to decide the appropriate punishment, either life without parole or the death penalty. 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 at least one of the statutory aggravating factors beyond a reasonable doubt. Even if the State proves the murder and an aggravating circumstance jurors are required to consider any mitigation 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 parole will be imposed. In this case the State has indicted Mr. Jones with five counts of murder and has notified him 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 in this trial. I will instruct you as to how to consider and evaluate this testimony and evidence, whether it be 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 and evidence is presented I am not able to tell you my exact instructions of the law, which I will give at the conclusion of the case. But will you and can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider all the evidence consistent with these instructions. Can y'all do that. (Whereupon, both jurors responded in the affirmative.)
THE COURT: Both answered affirmatively. Now, I will excuse y'all until y'all come back in. Don't discuss the case with each other, step back and out and we will have you back in.
(Whereupon, a short break was taken.)
THE COURT: Bring Mr. Hatcher in. (Whereupon, Juror 183, Ryan Hatcher entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Mr. Hatcher.
JUROR: Good morning, how are you.
THE COURT: Thank you for coming in this morning. I know you were a few minutes late and you came in and I hadn't quite read that preliminary statement to you and had you sitting in the back for a while.
JUROR: Yes, sir.
THE COURT: You are familiar that social media is out there and prevalent everywhere?
JUROR: Yes, sir.
THE COURT: Media attention, publicity, makes an impact on people's decision. Do you understand that?
JUROR: Yes, sir.
THE COURT: And didn't I give you instructions not to talk about the case?
JUROR: Yes, sir.
THE COURT: Did you publish something on the internet, use social media since you have been sitting in the Court House?
JUROR: No, sir.
THE COURT: You didn't? You are under oath. Did you publish anything, put anything on social media since you have been here?
JUROR: No, sir.
THE COURT: All right. I want the Clerk of Court to find where that is. I think you are lying to me.
JUROR: A picture of me?
THE COURT: Yes.
JUROR: I put a picture of me on Facebook.
THE COURT: Is that not putting something on social media and publishing and talking about the case?
JUROR: I didn't know that I said anything about the case.
THE COURT: Did you make a negative comment to law enforcement?
JUROR: No, sir. I do hog hunts and that is what--
THE COURT: Tell you what I am going to do. I am going to excuse you from being a Juror in this case. I am going to hold you here a little bit until I decide what I am going to do. Because I want to check the nature of what I was told or shown that was on social media, I am not very happy. Put him somewhere where I can hang on to him a little bit. Don't talk about the case with anybody. I will decide what to do with you in a little bit, I want to hear a little bit more. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Come on up. There was something posted on social media about Mr. Hatcher. It appears to be negative talking about the case and it indicates in the sitting at the Court House thinking about stabbing a pig in all caps. And then the bacon and on and on more. He has been excused from service on this case but the Court may consider bringing him back in and questioning him further. But I really don't have time to do all of that so if anyone, the State or Defense, has got a suggestion as to what to do with him for misrepresenting the things to the Court, let me know but I may do nothing, I may just let him sit here for a while.
RICK HUBBARD: The State's position is it is your discretion. Obviously I think he needs to be struck.
THE COURT: He is not going to serve, he is excused by the Court right now.
RICK HUBBARD: Thank you, Your Honor.
THE COURT: Are we ready to go on the next one?
RICK HUBBARD: Yes, sir.
THE COURT: Bring the next one. (Whereupon, Juror 275, Carolyn Mayers entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Mayers.
JUROR: Mayers.
THE COURT: How are you doing today?
JUROR: I am good, how are you.
THE COURT: I am doing fine. My name is Eugene Griffith and I introduced myself Monday and Monday I asked everyone to take an oath to not talk about the case until I get to see you again. Did you talk to anybody about the case?
JUROR: No. I mean, just from what was being said on the news.
THE COURT: Okay. Understanding there was a lot of publicity but did anybody ask you about the case, of you being a potential Juror?
JUROR: No.
THE COURT: Now, this is, I am asking a question, I am looking for fair and impartial jurors. There has been a lot of publicity, there was talk Monday because I read the five indictments, the allegations made by the State to Mr. Jones. And Mr. Jones is presumed innocent right now. Have you formed an opinion, result from whatever conversation, publicity you have heard, seen in the media, where ever it is. Have you formed an opinion that you think you know what happened?
JUROR: No, I don't. I really don't.
THE COURT: That is what I am trying to determine. I don't want somebody to come in and say, I know what happened and I know what I am going to do. That would not be fair to the State or the Defense. Do you understand?
JUROR: I do.
THE COURT: What do you have on your work schedule, personal schedule, otherwise over the next several weeks if you are selected as a qualified Juror?
JUROR: I babysit for my grandkids. Other than that I don't have anything else.
THE COURT: You were a little bit late getting here today. Was that because some of your grandkids slowed you up getting out of the house?
JUROR: No. I had to find a ride.
THE COURT: Okay. And is transportation an issue for you?
JUROR: Yes, it really is.
THE COURT: So if you are selected as a qualified Juror would we need to assist you getting you to and from the court?
JUROR: Yes.
THE COURT: And that can be done, not a problem with that?
JUROR: Okay.
THE COURT: Now, did you understand my instructions I read a moment ago about the two phase, two-step process, there is a guilt or innocence phase in a Capital case and then there is a sentencing phase.
JUROR: Yes. I read that paper there also.
THE COURT: The three types of jurors?
JUROR: Yes.
THE COURT: Understanding my instructions about phase one, guilt or innocence and then goes to stage two if there is a finding of guilt and then the jury will impose the sentence. One of two things, either guilty, I am sorry, either life without parole or it is the death penalty, the punishment. No other options for the jury. Do you understand that?
JUROR: Yes.
THE COURT: The death penalty is not automatic. Did you know that?
JUROR: No.
THE COURT: And I am telling. When the jury determines the punishment they have got two choices, death or life.
JUROR: Okay.
THE COURT: Nothing else. Do you understand?
JUROR: Yes.
THE COURT: Did you read the type one, two and three types of jurors?
JUROR: Yes.
THE COURT: Do you find yourself in any of those three types?
JUROR: I think type two.
THE COURT: Type two. Let me ask you another way. Do you have any personal beliefs that you think that the only reasonable sentence in a case of this type, you have got just very, very broad facts, nothing particular about the victims or the Defendant. But in a case like this you believe the only appropriate sentence would be a life sentence?
JUROR: Yes.
THE COURT: You have a religious belief that the death penalty would be, you couldn't sign a verdict form on that?
JUROR: No.
THE COURT: Very well. Anything further from this lady?
RICK HUBBARD: Not from the State.
THE COURT: I am going to excuse you from service and thank you for coming in.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, we will take a break.
(Whereupon, a short break was taken.)
THE COURT: We are missing one out of the eight, so we are checking on that. If they are not here in just a moment or two we are going to, make them come in at the last, we are going to keep things rolling.
BAILIFF: Not here yet.
THE COURT: Not here yet. Bring me the seven you have got. (Whereupon, 17, Kristin Ashburn; 464 Tracy Wehr; 129, Elizabeth Durham; 186, Lawryn Henderson; 237, Peter Kleemoff; 177, Terrie Hanley; 338, Rachna Prasad entered the courtroom.)
THE COURT: Good morning, my name is Eugene Griffith yet again. Hope you had a good weekend. I have got to give you some preliminary instructions on criminal procedures and aspects of the criminal law and then I will send you back. While you are waiting back don't discuss the case, don't talk about the case among yourself with anybody. There are cameras in here, none of them are on. They don't take pictures of jurors. They take pictures of witnesses, Court Reporter, my picture, the law clerk and the lawyers, the jurors are off limits. And the cameras are off right now. This question and stuff will not be published or anything. When y'all come back in we need to know about your work schedule, personal schedule and see what your calendar is. Other than that we will come in and ask questions, you are under oath, you are going to stand and take an oath momentarily to renew your oath. Some of the questions they ask are just personal opinions about your beliefs. No wrong answers, what do you believe, what do you stand for, who are you. Madam Clerk, place the panel under oath for me.
(WHEREUPON, the jury was sworn at 11:34 a.m.)
THE COURT: Ladies and gentlemen, you have been summoned, now I have read this to the other panels and I will read it again. You have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Judge Eugene Griffith, Jr. and I will be the presiding Judge in the trial. 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 excludes any just cause or excuse for the killing. When the State alleges the defense of murder combined with certain aggravating circumstances the State can then seek the death penalty. Before and during a trial a person accused is presumed innocent throughout each and every element of the crimes which he is charged.
The State must prove each and every element of the crime charged by a standard of proof called beyond a reasonable doubt. In most criminal cases Judges determine the punishment upon a conviction. But in a Capital penalty case the jury determines the punishment. In a Capital case the trial is divided into two parts potentially. Part one or phase one is the guilt or innocence phase and then if necessary phase two is the punishment phase. The first portion of the case the State must prove a Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused person guilty of the murder then the trial proceeds to the second phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury considers both aggravating and mitigating evidence 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 that execution if a person is convicted solely of a murder. The State must prove at least one of the statutory aggravating factors beyond a reasonable doubt. Even if the State proves murder and an aggravating circumstance jurors are not, are required to consider any mitigating evidence or circumstances. Let me make that clear. 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 sentence 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 different things. A wide variety of testimony may be presented to you in this trial. I will instruct you as to how to consider and evaluate the testimony presented to you and whether it be defined as evidence of an aggravating factor, evidence of mitigation which are any reason to vote for a sentence of life without parole. Evidence of any defenses, evidence of affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. Until the testimony and evidence is presented I am not able to tell you the exact instruction of the law that I will give, on which of these aspects. But can you accept an oath to meaningfully consider all the testimony and all of the evidence, apply the law as I instruct it and consider any and all evidence consistent with my instructions. That will be the question imposed to you when you come back in. Those are my preliminary instructions so y'all step back in the jury room, don't discuss the case while you are back there and we will call you in one at a time. There is a potential witness list I want you to review and there is also another form I want you to review and I will bring you back in one at a time and we will go over that with you. Okay. (Whereupon, the jury panel was excused from the courtroom.)
THE COURT: There was one Juror who was late, she was the first one. Y'all want to do her.
COURT CLERK: I was told she was in the jury room.
THE COURT: I want to bring her in and put her on the witness stand and do it right now. Go get my first Juror, we will do her first. Bring her. (Whereupon, Juror 348, Avery Renwick entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Are you Ms. Renwick?
JUROR: Yes.
THE COURT: Hop up here. Thank you for getting here. You are not in trouble or anything but your name is Ms. Renwick?
JUROR: Yes.
THE COURT: State your name and spell your name.
JUROR: Avery Renwick, A-V-E-R-Y; last name, R-E-N-W-I-C-K.
THE COURT: Okay. The other panel came in and listened to some instructions about this and I am going to read those to you like you were sitting here with them. And you were kind of first on the panel list of our numbers. So that is why I brought you in first. You are not in trouble, I am going to go ahead and put you in your seat. Okay?
JUROR: Okay.
THE COURT: Madam Clerk, will you place Ms. Renwick under oath.
(WHEREUPON, Juror Ms. Renwick was sworn.)
THE COURT: And so you are kind of getting it solo and that is how I did the first panel but it is easier to do them as a group. And so since you were late and I am okay with that the lawyer said let's go ahead and start with her. I am going to read this to you just like I did the others and then I am going to give you something else to read, give you a few minutes to peruse that and then I am going to ask you some more questions. Now, you have been summoned as a potential Juror in the case of the State versus Timothy R. Jones. My name is Judge Eugene Griffith, Jr. and I will be presiding in the trial. 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 excludes any just cause or excuse for the killing.
When the State alleges the offense of murder combined with certain aggravating circumstances the State can then seek the death penalty. Before and during a trial a person accused is presumed innocent of all the elements of the crime to which he is accused. The State must prove each and every element of that crime charged by a standard of proof called beyond a reasonable doubt. In most criminal cases the Judge determines the punishment upon a conviction. But in a Capital trial or a Capital penalty case the jury determines the punishment. In a Capital trial, the trial is divided into two potential parts. Part one is the guilt or innocence phase. Part two, if necessary, is the punishment phase. In the first portion of the case the State must prove a Defendant's guilt of the murder beyond a reasonable doubt. If a jury finds an accused guilty of the murder then the case proceeds to the second phase.
In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury can consider any aggravating or mitigating evidence in deciding the punishment, either life without parole or the death penalty. Those are the two choices. 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 at least one of the statutory aggravating factors beyond a reasonable doubt. Even if the State proves the 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 of the jurors.
If jurors unanimously decide to sentence a Defendant to a life without the possibility of parole sentence then a life without the possibility of parole sentence 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 all sorts of testimony and evidence showing many things. A wide variety of testimony and evidence may be presented to you in the trial. I will instruct you as to how to consider and evaluate the testimony and evidence and whether it is defined as evidence of an aggravating factor, evidence of mitigation and that would be any reason to vote for a life sentence or life sentence without parole. Evidence of defenses, evidence of affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. Until the testimony and evidence is presented I am not able to tell you exactly the instructions that I will give on each of these but can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider all of the evidence consistent with my instructions. Can you do that?
JUROR: Yes, sir.
THE COURT: Okay. Now, there are some cameras in the courtroom, none of them are on. You are, they aren't taking your picture. Witnesses and lawyers, they get their pictures made, but you are off limits. Okay. Now, I am going to give you, because the other jurors back there, this is a potential witness list and I am going to come around and let you peruse it, that is a lengthy list. Everybody has to give me all potential witnesses. They won't call all of them because they are just not necessary most likely to call the witnesses but potentially they could be. You look over it and see if you know any of them and if you do then the question will be, you got a relationship with a witness who does such and such. Maybe it is any one of those witnesses. Would that relationship, your friendship or whatever, connection to the witness create an issue for you being fair and impartial. Look over that first and then when you get done with that I want you to look over this and I will ask you questions about that. Okay. You take your time, the lawyers are going to kind of sit there and do nothing. Take your time. Okay.
JUROR: Okay.
THE COURT: Bring me in 17 while she is reading. (Whereupon, Juror 17 Kristin Ashburn entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Ashburn, I want you to spell your first and last name.
JUROR: K-R-I-S-T-I-N, A-S-H-B-U-R-N.
THE COURT: Ms. Ashburn, my name is Eugene Griffith again, good morning. I ask you to take an oath Monday to not discuss with anybody. Have you talked to anybody about the case?
JUROR: Not really. I told people at work that I needed to go to jury duty, I told my boss and everything.
THE COURT: And that is acceptable. What I don't want you to do is engage in a conversation-
JUROR: No, no. I had some of them that had their opinion but I didn't really pay them on attention. It is their opinion, not mine.
THE COURT: Right. And like I told you, what I think or what I am going to require is what you hear in the case based in here. Now, said people asked you what was going on. You said, can't talk about it.
JUROR: But they asked if it pertained to this I said, yes or no.
THE COURT: Now, understanding that will happen and understanding there has been publicity in this case. News media covered it, last week before you took the oath, this week since you have taken the oath. The news media has no responsibility to not discuss stuff. That is what they do and that is fine. They present the news. Four years ago when this happened there was news media coverage, publicity. I actually read the indictments to you Monday. So I told you certain allegations the State is making against Mr. Jones.
JUROR: Yes.
THE COURT: Considering everything, anything, what you have heard or understand thus far have you formed an opinion as to what you believed happened in this case?
JUROR: No, sir.
THE COURT: I want you to decide the case what is heard in here.
JUROR: Exactly, you can't go by hearsay.
THE COURT: So you have not formed an opinion as to what has happened?
JUROR: No, sir.
THE COURT: Tell me about your personal calendar. You got something coming up where you, vacation, child's graduation from college or high school, something on the horizon from now to early June.
JUROR: No.
THE COURT: So if you were selected you could serve subject to the working problems?
JUROR: Possibly, yes. I do have a child that is 13, he has been diagnosed with autism. He is what they call high functioning.
THE COURT: I am aware of children like that.
JUROR: I do have an 19-year-old at home also but my 19-year-old does work and I don't know when he works because his schedule varies from week to week.
THE COURT: Are you a single parent?
JUROR: No, my husband works night and I work during the day.
THE COURT: Is your child with the autism, does he function, does he have a job or anything?
JUROR: The 13-year-old, no. He is 13.
THE COURT: Does he stay at home by himself?
JUROR: I don't let him stay at home by himself very long at all because I, just the way he is. He is very smart and everything, yes. But he has his moments where he has his little fits where he runs back and forth.
THE COURT: They manage themselves differently than other kids and so when they are stressed they have a routine that they go through.
JUROR: Yes. He does not like change.
THE COURT: I am speaking from personal experience, I have seen it myself, I know exactly what you are talking about. Now, if you were selected as a Juror do you think you could manage that 13-year-old, with his condition that he could be okay at home from time to time if you are not there, big brother is not there, your husband is not there?
JUROR: It depends on how many hours. Maybe an hour is good, maybe two hours.
THE COURT: Okay. 9:00 to 5:00, 5:30, along in there, about a normal work schedule?
JUROR: I work usually to 2:00, 3:00, he gets home about 3:00 o'clock from school.
THE COURT: Okay. So you could manage that?
JUROR: Possibly yes but I really don't want to have to if I don't have to.
THE COURT: Okay. Well, I mean, I don't have any volunteers. It is an inconvenience. I try to minimize the inconvenience, yes it is an inconvenience?
JUROR: Yes, I really try, I don't like the idea of someone else's life in my hands.
THE COURT: Okay. Now we will get to that. I gave you an instruction, on preliminarily on the kind of aspects of a Capital case, two phases. Phase one, guilt or innocence. Phase two is the sentencing portion. If the State proves its case beyond a reasonable doubt it goes to phase two. You know very scant facts, broad allegations the Court read. Did you study the type one, two or three Juror?
JUROR: Yes, sir.
THE COURT: Can you find yourself on those three types?
JUROR: Yes, sir.
THE COURT: Where do you find yourself?
JUROR: Possibly number three.
THE COURT: Okay. And it is not often you come and say, please give this consideration, what would you do if you were in that position. Well, I am putting you in that position.
JUROR: Yes, sir.
THE COURT: The lawyers are too because that is what they are trying to do.
JUROR: Yeah, I have had people tell me to say, like--
THE COURT: To give the correct answer to get out of it?
JUROR: Yes.
THE COURT: So you are being truthful with me?
JUROR: Yes, sir.
THE COURT: Thank you.
JUROR: You are welcome.
THE COURT: I very much appreciate that.
JUROR: No problem.
THE COURT: I understand, I can generally recognize when somebody is giving me the canned answer, this is not my first day. And the lawyers are going to ask you more questions about aspects of the case.
JUROR: Yes, sir.
THE COURT: And like I say, personal opinion.
JUROR: Yes, sir.
THE COURT: Now as a phase three you want to hear everything about the case?
JUROR: Most definitely.
THE COURT: Personal experiences of the--
JUROR: Even though I really do not want to see it or hear it.
THE COURT: And that is another question. The testimony is about the death of children. Will be graphic, perhaps harsh and certainly unpleasant. Would that subject matter be something that you could consider in light of its unpleasantness and still be fair to both the State and the Defense?
JUROR: I am not really sure. I would try to be.
THE COURT: Is it going to be so bad you can't do that and I can't tell you because I can't show you ahead of time?
JUROR: Well, I really don't know.
THE COURT: Okay. Well, the lawyers may ask you more questions about it because I am not going to represent to you that this trial will be easy. So understand it is going to be unpleasant.
JUROR: Yes.
THE COURT: You tell me you would try?
JUROR: I would try, yes, if I had to.
THE COURT: Now, going back to phase one and phase two aspect of the case. Phase one is guilt or innocence. The State has got to prove murder beyond a reasonable doubt. There has been defenses already presented by Mr. Jones, I am going to read out a list of potential defenses and not knowing how the testimony may go, I may instruct on potential defenses. Potential defenses could be accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses allowed by our State code. Could you consider testimony and evidence in regard to the guilt or innocence and also consider the potential defenses which may be presented, instructed by the Court obviously and be a fair and impartial Juror giving meaningful consideration to the testimony and evidence, particularly instructions on how to evaluate those defenses and elements of the crime. Can you be fair and impartial
JUROR: I think so.
THE COURT: I want you to be comfortable with it.
JUROR: I am not sure really.
THE COURT: Now, if guilt or innocence phase, a not guilty verdict is found the case ends. It doesn't go forward. If the State proves its case beyond a reasonable doubt it goes forward to the sentencing phase. Two potential forms of punishment exist. Life or death, nothing else. On other options, you have got two. Testimony will be presented by the State, they have to prove an aggravating factor in addition to the murder. An aggravating factor examples and these are in the statutes too, murder of a policeman, rape of murder, kidnapping of murder, a murder of a child, multiple murders. Those are aggravating factors the State has got to prove beyond a reasonable doubt. Jurors also consider mitigating factors. I am going to read some statutory mitigating factors and ask you if you can consider those factors. The Defendant has no significant history of prior criminal conviction involving the use of violence against another person.
The murder was committed by 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 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 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. Those are statutory. Also a person's walk in life, how they were raised, broken home or troubled childhood, whatever aspects that you could assign a reason to not impose the death penalty, life without parole, there are mitigating factors. So can you consider, listening to the instructions of the Court, considering aggravating factors, testimony and evidence as well as mitigating circumstances and facts and evidence in reaching a verdict for punishment in the guilt or innocence side, considering the aspects and instructions of the Court. Can you be fair and impartial in that regard?
JUROR: Yes, sir.
THE COURT: Okay. Now, do you have any religious, personal or moral belief which would prevent you from signing a verdict of punishment for the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, moral belief which would prevent you from finding a sentence of life without parole?
JUROR: No, sir.
THE COURT: Can you be fair and impartial to both sides in this case, the State and the Defense?
JUROR: I believe so.
THE COURT: Okay. I think I have got everything.
RICK HUBBARD: Can we approach?
THE COURT: You may. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: The lawyers and me and you, you are the one that is concerned too.
JUROR: Yes.
THE COURT: I want to make certain that you understand this. If you are selected as a potential qualified Juror, likely we will go until 9:00 o'clock in the morning, lunch break, breaks in the middle of the day but we will work most of the day until 5:00 or 5:30. That type of work schedule, consider evidence and get the trial done will carry the trial probably into late May or early June. So I doubt we are starting this week, probably will start next week early and go for a couple of three weeks maybe. That type of commitment obligation to you or from you to me and to the Court system, with your child, how do you feel about that?
JUROR: I really don't want to leave him home by himself for hours at a time.
THE COURT: Okay.
JUROR: So there ain't really nobody around for him to get ahold of if my oldest is not home. I have an uncle who lives next door, yes, but he is not reliable like that.
THE COURT: Okay.
JUROR: And my husband works an hour away from the house.
THE COURT: Okay. So he is not close by to attend to him if something happens?
JUROR: No, sir.
THE COURT: That was my problem. If I am in the middle of a witness and your son calls and you didn't get the call until thirty minutes later that would create an issue?
JUROR: Yes.
THE COURT: I think being out of an abundance of caution, I am going to excuse you for that reason because I am likewise concerned. I have a child that has similar issues, not exactly like because they are all different.
JUROR: It is just, I don't want to leave him by himself until I know for sure that he--
THE COURT: Routine is good and change is tough.
JUROR: Yes, very much so.
THE COURT: And that is what I think this trial may do is put him into some aspect of that behavior that you might not anticipate right now?
JUROR: And he might show out at school too because he is doing real good at school.
THE COURT: I am going to excuse her, I am concerned about that. Juror number 17, you are excused and thank you for coming and being patient with the Court.
JUROR: Yes, sir. I appreciate it. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Back to Ms. Renwick. (Whereupon, 348, Avery Renwick entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Renwick, we did the other lady first and we will do you now. You took an oath not to talk about the case, discuss the case or let people discuss the case with you Monday. Have you done any of that since then?
JUROR: No, sir.
THE COURT: People know you are coming for jury duty, certainly that is okay, tell your boss I can't come to work today, I am going to jury service. You have done that?
JUROR: Yes.
THE COURT: Now, I published some information Monday about the case. There has been a lot of publicity about the case before Monday, some since, regardless of its source or timing. Any of that publicity or information the Court gave you, has any of that information caused you to form an opinion about what has happened in this case?
JUROR: Yes.
THE COURT: Have you formed an opinion about what has happened?
JUROR: Yes.
THE COURT: Now, that being said, I gave you instructions here about how this case proceeds. Phase one is guilt or innocence, phase two is punishment. The State has got to prove phase one in order to get to phase two to be able to try to prove an aggravating factor. Mitigating circumstances are presented throughout. I gave you a thing and I know you were looking over it, but you looked over the three type of potential jurors in this case?
JUROR: Yes.
THE COURT: Just a moment ago?
JUROR: Yes, sir.
THE COURT: Can you identify yourself as any one of those three types. Like if you saw yourself in the case, the case goes to the end and there is a guilty verdict of the murder and then there is considering the aggravating factor and that is proven and then the mitigating factors. Do you fall into one of those three categories, just knowing what you know right now.
JUROR: Two.
THE COURT: You have got concern that the death penalty is not an appropriate form of punishment?
JUROR: Right.
THE COURT: Do you have a religious or moral belief that you believe that the death penalty is probably not moral or right?
JUROR: Right.
THE COURT: You do have that?
JUROR: Yes.
THE COURT: All right, I have heard enough. You are free to go, thank you for coming.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring me 464. (Whereupon, Juror 464, Tracy Wehr entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Is it Wehr?
JUROR: Wehr.
THE COURT: Okay. Will you spell your last name since I have seen it spelled two or three different ways.
JUROR: W-E-H-R.
THE COURT: Ms. Wehr, my name is Eugene Griffith and I am the presiding Judge. I gave you an instruction Monday under oath to don't talk about the case or allowed to be talked to or questioned about the case. Has anyone tried to talk to you about the case?
JUROR: No, they have not.
THE COURT: And you have not discussed with anyone?
JUROR: No sir, I have not.
THE COURT: There has been publicity in this case, since Monday, prior to Monday, weekend before, week before, four years ago, a lot of publicity over the course of this thing plus I read the indictments, published them on the record. Any of that information, whether it is from the Court or any source whatsoever, has it caused you to form an opinion as to what you think happened in this case?
JUROR: No.
THE COURT: You haven't formed an opinion?
JUROR: No, sir.
THE COURT: Very well. Now, this case involves of commitment of a little bit of time. So once you are selected and impaneled as a Juror you will be here through the balance of May. Do you have anything on your personal schedule, vacation, holiday, whatever that would prevent you from serving as a Juror?
JUROR: No sir, I don't.
THE COURT: Now, this case is going to involve testimony regarding the death of some children. Testimony may be graphic and may be harsh, it will be unpleasant. I don't want to oversell you on the idea it won't be easy. Will testimony about that subject matter make it difficult for you to be fair and impartial to both the State and to Mr. Jones?
JUROR: No sir, I don't believe so.
THE COURT: You can be fair and impartial?
JUROR: I believe so, yes.
THE COURT: Fair enough. Now, I am going to go back over some aspects of my instructions and the two phase Capital trial model. In a Capital trial phase one is guilt or innocence. The State has got to prove beyond a reasonable doubt a murder. There is some defenses available to people accused and in this case Mr. Jones is claiming one of them. He has plead not guilty by reason of insanity. I am going to read you some other potential defenses allowed by our statute and then ask you can you consider those if the evidence supported it. Some of these -- applicable but I haven't heard the testimony either so I don't know exactly which aspects would be instructed. I will listen and then apply the ones that are appropriate. Potential defenses are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential statutory defenses. Now, can you give meaningful consideration to the evidence in the guilt or innocence phase considering the elements of murder as well as any potential defenses which are proved. The Court will give appropriate instructions on aspects of the burden of proof as well as the defenses that are shown with that testimony. Can you be fair and impartial and consider the instructions of the Court in phase one and phase two.
JUROR: Yes, sir.
THE COURT: In phase one, I am sorry, can you do that?
JUROR: Yes, sir.
THE COURT: Now because of the defense entered by Mr. Jones it will create, most likely, the verdict form for the jury to consider in phase one of four potential verdicts. Potential verdicts could include guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Can you consider the facts and testimony presented by the parties, instructions of the Court and reach a verdict on any and all of those four potential verdict forms?
JUROR: Yes.
THE COURT: There is not one particular verdict that you say, I couldn't find that verdict no matter what.
JUROR: No.
THE COURT: Fair enough. Now, the case proceeds during phase one. If the State fails to prove its case beyond a reasonable doubt the proof fails, not guilty verdict, the case ends. All right. If the State meets its burden of proof and proves the guilt of the Defendant it moves into phase two. Phase two is where the jury considers punishment. There are two choices, death or life without parole. No other choices available, one of the two. In that portion of the trial the State must prove one of the statutory aggravating factors to be allowed to request the death penalty. I will name some statutory aggravating factors. Murder of a police officer, rape of murder, kidnapping with murder, murder of a child, multiple murders. The State must prove one of those statutory aggravators in order to ask for the death penalty. Also during the sentencing portion mitigating factors are presented for the jury to consider. And they can consider any of them.
Potential statutory mitigators 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 victim was an accomplice in the murder committed by another 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 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. Now, those are statutory.
Other factors are, how he was raised, broken home, troubled childhood, any aspect of his personal upbringing and walk in life can be considered as mitigators. Thus my question is, can you act fairly and impartially, consider testimony whether it be from the State regarding the aggravating factors in proving that element beyond a reasonable doubt, considering any mitigating factors presented and considering all aspects of the mitigating factors which mitigators are reasons to assign life without parole sentence. Can you give meaningful consideration to all of that testimony, consider my instruction by the Court and find a verdict consistent with those instructions and the evidence shown to you?
JUROR: Yes.
THE COURT: Can you be fair and impartial?
JUROR: Yes.
THE COURT: Do you have any reason, religious or personal or moral belief which would prevent you from finding a sentence of the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from finding a sentence of life without parole?
JUROR: No, sir.
THE COURT: Now, if a sentence unanimously is found to impose the death penalty you will have to sign the verdict form. Do you understand that?
JUROR: Yes.
THE COURT: Each of the twelve jurors must do that. Now if a unanimous decision to impose live without parole, you understand that that sentence will be carried out?
JUROR: Yes.
THE COURT: Just as if it is unanimously found of the death penalty. That penalty will be carried out.
JUROR: Yes.
THE COURT: Did I ask you about the witness list?
JUROR: No.
THE COURT: Did you examine the witness list?
JUROR: Yes, I did.
THE COURT: Do you know anybody on it?
JUROR: Only one.
THE COURT: Who is it?
JUROR: Adam Myrick.
THE COURT: Adam Myrick.
JUROR: Yes, sir.
THE COURT: And how do you know him?
JUROR: We go to church together.
THE COURT: The fact that you know Mr. Myrick, I think he is Captain Myrick now. The fact that you know him, would that affect your ability to be fair and impartial to both the State and the Defense?
JUROR: No.
THE COURT: And you go, you attend the same church?
JUROR: Yes.
THE COURT: Okay. Now I generally ask earlier, considering everything you know and you don't know very many facts about the case because no testimony has been presented.
JUROR: Right.
THE COURT: The allegation has been read and whatever publicity. If you were put into a position of being a Juror there are three typical types of jurors. Do you see yourself as one of those three types?
JUROR: Probably the third one.
THE COURT: The third one?
JUROR: Yes.
THE COURT: I was supposed to ask you that earlier and I went into the aspects of the testimony. But you find yourself as a type three?
JUROR: Yes.
THE COURT: So you want to hear everything?
JUROR: Yes.
THE COURT: Before you make a decision?
JUROR: Yes.
THE COURT: Mr. Secor, come on up.
EXAMINATION By Mr. Secor:
CASEY SECOR: Hey, Ms. Wehr.
JUROR: Hello.
CASEY SECOR: I just want to ask you some questions and really about your personal feelings. Judge Griffith was asking you a lot, was your ability to be fair and impartial and follow the law which is, of course, appropriate. But right now I just want to know how you feel about some topics. Is that all right with you?
JUROR: Yes.
CASEY SECOR: As the Judge said, one of the possible verdicts in this case in the first phase would be not guilty by reason of insanity. And when a person pleads not guilty by reason of insanity they are saying I did the act, so in a case of a murder, I did the killing but because of a mental disease or defect I didn't have the capacity to distinguish between legal and moral right and legal or moral wrong. Kind of a mouthful but that is the legal definition. And so I just want to know, from your personal perspective, does that sound like a verdict that you could really give meaningful consideration of even though that it meant that the person had done the killing. Does that make sense?
JUROR: Yes.
CASEY SECOR: You don't have any problem with that?
JUROR: Uh-uh, (indicated no.)
CASEY SECOR: Because some people would say it sounds like an excuse or a copout but that is not you?
JUROR: No.
CASEY SECOR: Okay, thank you. I would like to talk to you about your feelings specifically about punishment. About how you believe a person should be punished who is guilty of murder. Okay?
JUROR: Okay.
CASEY SECOR: And in South Carolina, as the Judge told you, in order to be guilty of murder it means that the person they knew right from wrong had no excuse, justification or defense and they maliciously killed an innocent person. And the category of the case that we are talking about is the murder of multiple children. So I want you to think about a person who has been found guilty of that, unequivocally, beyond a reasonable doubt you know that that person did that. There are, of course, two options for sentencing as the Judge told you. But on a personal level when you know that somebody is guilty of murdering multiple children, how do you feel about the death penalty. Do you start off leaning one way towards the death penalty, towards life without parole. What do you think personally?
JUROR: Without hearing anything, just my initial reaction?
CASEY SECOR: Yes, ma'am.
JUROR: I still want to hear, I still want to hear the evidence, I still know what transpired and the facts before I make a decision.
CASEY SECOR: So even if you were on the jury and you had found him guilty and you knew that the facts were that he was guilty you still would not lean one way or the other regarding penalty. There is still more that you want to know?
JUROR: Yes.
CASEY SECOR: And can you tell me the types of things that you would want to know?
JUROR: Like you said, the mental state is definitely something that I would want to know. Just more of the evidence of how they were found, you know, how did we come to this conclusion that he murdered these children.
CASEY SECOR: Yes, ma'am. And would things like the guilty murderer's character and background, his life experience. Would that matter to you regarding what the punishment ultimately was?
JUROR: Yes.
CASEY SECOR: It would?
JUROR: Yes.
CASEY SECOR: Okay. May I ask you just your general views of the death penalty, if you think about the death penalty, what types of things come to mind for you about its usefulness or whether we should or should not have it, those types of things.
JUROR: I definitely believe there is a place for it. But, again, I am not going to just make that decision without hearing the facts. I am not going to look at the case and be like, death penalty. I want to know more.
CASEY SECOR: Yes, ma'am. And are there cases that you can think of that you think absolutely call out for the death penalty every time always?
JUROR: No.
CASEY SECOR: No, okay. I want to just run through some principles regarding penalty phase, the way the jurors access things in the penalty phase and just make sure they are principles that you are comfortable with and that you think that you can comply with. All right?
JUROR: Okay.
CASEY SECOR: Did you know that in South Carolina that the death penalty is never required. I think the Judge did tell you that?
JUROR: I did not know until he mentioned it, yes.
CASEY SECOR: Meaning that the law is satisfied with a life sentence in every case, the worst case you can possibly imagine. And that is because jurors are empowered in these cases--
SUZANNE MAYES: Objection, Your Honor, at this point, it is not the form of question, he is making statements.
THE COURT: Rephrase the form of the question.
CASEY SECOR: Okay. Did you know that mitigating evidence, the Judge described to you, did you know that it does not have to be related to the actual offenses that you found somebody guilty of?
JUROR: I don't, I think I understand what you are saying. And, no, I don't think that I knew that.
CASEY SECOR: And that is because as the Judge said, character and background of a person, you understand how that could have absolutely nothing to do with the murders?
JUROR: Yes.
CASEY SECOR: And were you aware that mitigation does not have to be found unanimously by jurors?
JUROR: No, I was not aware of that.
CASEY SECOR: The law gives jurors the right to find it just for themselves. And did you know there was no burden of proof for mitigation?
JUROR: Okay.
CASEY SECOR: Meaning each Juror finds mitigation for themselves to whatever degree of satisfaction they require for themselves.
JUROR: Okay.
CASEY SECOR: And did you know that jurors can choose mitigation for themselves and give it, the value of life, even if no other Juror agrees with that. Did you know that?
JUROR: No.
CASEY SECOR: Jurors are empowered to do that. Is that something you think is fair and appropriate?
JUROR: Yes.
CASEY SECOR: Okay. The law also allows jurors to give the value of life in a case like this for no reason at all. Did you know that?
JUROR: What do you mean, give the value of life for no reason.
CASEY SECOR: Voting for life in a Capital case. They can decide to vote for life, the law says for any reason, no reason or based on mercy alone.
JUROR: Okay.
CASEY SECOR: So any reason would be sort of things we were talking about, something to do with the character and background of the Defendant. Right. But the law also says a Juror can give life for no reason. Okay. And could you respect the right of a Juror to say, I have heard everything, I have considered everything, I can't explain it, I can't articulate it but I am voting life, that is right for me in this case. Could you respect a juror's right to do that?
JUROR: Yes.
CASEY SECOR: And do you think that is a fair and appropriate rule that governs these proceedings?
JUROR: I think every person should have their choice.
CASEY SECOR: Yes, ma'am. And lastly, the law, like I said, empowers jurors to vote life based on mercy. Which again means they can consider everything and just say, I have considered everything and my reason is mercy. And you could respect a juror's right to vote for life based on just mercy alone. Correct?
JUROR: Yes.
CASEY SECOR: Okay. Last thing I want to talk to you about. The penalty phase deliberation in these cases have to be based on your individual moral judgment. Have you heard that term before?
JUROR: Yes.
CASEY SECOR: Something that is profound and personal as important as sort of something like the faith you choose for yourself. You agree that people make different moral choices from you but you still respect them because that is their right?
JUROR: Yes.
CASEY SECOR: And vice versa, you expect people to respect your moral judgments?
JUROR: Yes.
CASEY SECOR: And in these proceedings, if you were to get to a phase of deliberation the Judge would tell you that you have to make the decision based on your own individual moral judgment and you may not be bullied or pressured or coerced into giving up your individual moral judgment. Does that make sense?
JUROR: Yes.
CASEY SECOR: And could you, if you saw a person being bullied or coerced, could you come in and step in and say they are entitled to their individual moral judgment and make sure that they have maintained that individual moral judgment, that type have come to?
JUROR: Yes.
CASEY SECOR: Your Honor, based on the Court's limitations I will stop there. Thank you.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good day, Ms. Wehr. My name is Suzanne Mayes, I am a Deputy Solicitor here in Lexington County. As a prosecuting attorney we represent the State in this case.
JUROR: Yes, ma'am.
SUZANNE MAYES: And I just have a few questions for you. I wanted to follow-up a little bit on some of the questions that Mr. Secor was asking. As the Judge explained, if there is a second phase to this trial there would be two sentencing options. One would be life without parole meaning he never gets out of prison. The other would be the death penalty. Are both of those sentencing options that you could consider?
JUROR: Yes.
SUZANNE MAYES: And if after you heard all of the evidence including each of the mitigating factors that may be offered by the defense as well as any aggravating factors offered by the State in this case, if after hearing all of those you decided that the death penalty was the appropriate punishment is that a verdict that you could reach?
JUROR: Yes.
SUZANNE MAYES: With that verdict of the death penalty, that would be a unanimous decision of each of the jurors. There would be a form that goes along with that where every Juror must sign it acknowledging that that is in fact their verdict, a death sentence. If that were your appropriate verdict is that a form that you could sign?
JUROR: Yes.
SUZANNE MAYES: I know that one of the questions that Mr. Secor asked you was, in general, your feelings on the death penalty. And you indicated, I believe your response was, I do believe there is a place for it but I want to hear everything. And just to follow-up on that, you would consider all of the evidence in ultimately reaching a decision?
JUROR: Yes.
SUZANNE MAYES: But recognizing that, as you said, there is a place for it. Is that something that you have thought about even before this week, your personal feelings on the death penalty?
JUROR: I mean, I know what I personally believe on the death penalty if that is what you are asking me, yes.
SUZANNE MAYES: And those are feelings that when you said there is a place for it, those are feelings that you harbored for some period of time even before getting your notice for jury selection.
JUROR: Oh, yes. I mean, I have my own thought and my decision on what I believe the death penalty is.
SUZANNE MAYES: And if you heard all of the evidence and decided that life without parole was the appropriate sentence, is that also, could you make the choice of life without parole if you determined that to be the appropriate sentence?
JUROR: Yes.
SUZANNE MAYES: One of the questions that Mr. Secor asked you was in terms of not guilty by reason of insanity as a possible verdict in the case. Would you consider evidence in support of that. So I am going to ask you to the contrary. If the State countered that evidence or if there is evidence to be offered that counteracts is that also something that you would consider?
JUROR: Yes.
SUZANNE MAYES: Thank you.
CASEY SECOR: Just one more question.
THE COURT: Yes, sir.
EXAMINATION By Mr. Secor:
CASEY SECOR: Ms. Wehr, I think I just heard you say that, I have my own personal feelings about the death penalty?
JUROR: Yes.
CASEY SECOR: And this may just be my fault for not asking questions right. But do you feel like you told us what that personal feeling is about the death penalty?
JUROR: Yes, because I believe that the death penalty is something that is appropriate but I am not going to come to, something like this and just immediately go, because I heard indictments that he has murdered people that he automatically should have the death penalty. I want to know, I want to hear facts, I want to hear evidence before I say the death penalty.
CASEY SECOR: And if you heard facts and you saw the evidence and you heard the testimony and you believed that he was guilty, those two options, the death penalty or life without parole, are you committed to one of those at that point or do you still want to hear about his character and background. Is that stuff still relevant to you?
JUROR: For me the background weighs a little bit with me, yes.
CASEY SECOR: Okay. But not as much as the facts?
JUROR: The facts and evidence, yes.
CASEY SECOR: Thank you, Ma'am.
THE COURT: All right, y'all want to be heard on her?
BOYD YOUNG: No, Your Honor.
THE COURT: The State is good?
RICK HUBBARD: Yes, sir.
THE COURT: Ms. Wehr, you have now been determined as a qualified Juror. What that means you are no longer a potential Juror, you are a qualified Juror. It does not mean that you are on the jury. It means you are on another list that moves to now checking the website to when the qualified jurors need to come back in. My guess is early next week. I don't know that yet. I want you to start paying attention to that website. May be that we have you in here Friday. I don't know. Watch the website, check back, please report, date and time. Until that time don't discuss the case, don't let anybody ask you questions or try to discuss the case with you. Do not do any independent research. Do not peruse publicity given on this case. Like all the jurors I have told, I want you to be influenced and convinced with this case and the facts based upon the testimony you hear in the courtroom under the Court's supervision, court record, all the lawyers. It is important y'all hear it all at the same time. All right. Can you live up to that oath?
JUROR: Yes, sir.
THE COURT: See you when you get summoned back. Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are y'all ready for 129.
RICK HUBBARD: Yes, sir. I do have one thing I want to put on the record.
THE COURT: Yes, sir.
RICK HUBBARD: The next one, she has an establishment, cutting hair. I go there but I don't go to her, I didn't even know her name, I just know of her and have said hey to her before. I want to put that on the record. The person that cuts my hair has been since 2003 and she has moved around to all different establishments. So I want to put that on the record. I don't know this lady, I know of her. But I have never done business with her.
THE COURT: Okay. Y'all can ask her anything relevant to that. Bring her in. (Whereupon, Juror 129, Elizabeth Durham entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Durham, welcome back to the courtroom. My name is Eugene Griffith. You are under oath, we put you under oath earlier. Will you spell your name, first and last for Ms. Holston's record.
JUROR: Okay, Elizabeth Durham. E-L-I-Z-A-B-E-T-H, D-U-R-H-A-M.
THE COURT: Ms. Durham, I asked you to be under oath and not communicate about the case, discuss the case or have anybody discuss the case with you.
JUROR: No.
THE COURT: Has anybody discussed the case with you?
JUROR: No. They tried.
THE COURT: So you terminated the conversation very rapidly?
JUROR: Yes.
THE COURT: Now, there has been publicity in this case, all sorts. Since Monday, prior to Monday, four years ago, whenever. Also during Monday's presentation I read the indictments. They made allegations of facts. Information from any source, whatever source, have you as a result of any information you have received, formed an opinion as to what happened in this case?
JUROR: No.
THE COURT: All right. Haven't formed an opinion of any facts?
JUROR: Right.
THE COURT: I see you are a hairdresser. You were called to serve, mostly we will be working week days, mostly of times won't work weekend, most of the time just weekdays. From 9:00 o'clock or so to 5:00 or 5:30. Knowing you are self-employed--
JUROR: Yes.
THE COURT: Do you understand that obligation?
JUROR: I do.
THE COURT: And in spite of that are you still-willing to serve?
JUROR: Well, if I have to I will.
THE COURT: It is a civic duty. Self-employed people, if you represent to the Court that you being self-employed you have got to close down your occupation you could ask for that relief. It is up to you, not me, I am not going to excuse you if you don't ask. You are claimed to be self-employed and wish to be excused I will be glad to do so. Now, would you like to claim that exception?
JUROR: I would.
THE COURT: You would?
JUROR: Yes.
THE COURT: Thank you much for coming, you are free to go. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I was thinking about lunch about 1:00, maybe two more and then eat? Mr. Young is giving me the symbol for bellies. I am okay with that. Do one or two more and then get lunch. All right, bring in 186. (Whereupon, Juror 186, Lawryn Henderson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing?
JUROR: I am good.
THE COURT: Ma'am, you are under oath. Your name is Ms. Henderson?
JUROR: Yes.
THE COURT: I am going to get you to spell your first and last name for Ms. Holston's record.
JUROR: Okay. It is L-A-W-R-Y-N, H-E-N-D-E-R-S-O-N.
THE COURT: Ms. Henderson, I placed you under oath Monday and readmitted the oath this morning. Part of the oath Monday was to not talk about the case, discuss the case in any fashion or let anybody discuss the case with you. Has anyone tried to discuss the case with you?
JUROR: No.
THE COURT: Have you discussed the case with anyone?
JUROR: No.
THE COURT: Other than I have got to go to court?
JUROR: Right.
THE COURT: With your family?
JUROR: Right.
THE COURT: And that is perfectly fine. I published the indictments Monday, gave you some very brief facts and the allegations the State is making in this case. There has been publicity in this case since Monday, which I told you to minimize your contact with. There was publicity before that. I can't tell you to go back and get what you read or heard but there was publicity some four years ago. From where ever the facts came, I don't really care, but if you heard, seen, read or seen any publicity, the allegations I made also, from any source whatsoever. Has any of that information, accumulation of all that information caused you to form an opinion as to what happened in this case?
JUROR: No.
THE COURT: You haven't form an opinion?
JUROR: I have not formed an opinion. I haven't heard any publicity.
THE COURT: Okay. You haven't heard any publicity?
JUROR: No.
THE COURT: Okay. Now, I am going to ask you about your work schedule, personal schedule. If you are selected as a qualified Juror the trial is likely to start next week sometime and will take several weeks, two, maybe three weeks, carried into early June. Would that commitment of the Court asking you to sit as a Juror for some three weeks, would that impose on any schedule you have at home, whether it be personal, vacation, work?
JUROR: Starting next week?
THE COURT: Starting next week.
JUROR: Nothing at this moment.
THE COURT: So if you were called to sit as a Juror you could do that notwithstanding the inconvenience to you personally?
JUROR: Yes.
THE COURT: And everyone enjoys that same burden, that is just the way it is, but you could serve, you have got no vacation plans to go to Alaska?
JUROR: No, sir.
THE COURT: Fair enough. Now, the subject matter on this case is relatively graphic. Involves the subject matter of the death of some children. Some of them are graphic and harsh. I don't want to represent to you that it is anything but unpleasant, difficult. Would the subject matter of that type be difficult for you to be a fair Juror because I need you to be fair in considering the testimony, be fair to both the State and Mr. Jones and the Defense. Can you be fair?
JUROR: Yes. I am sorry, we are not talking about me, we are talking about them, right?
THE COURT: Correct. Understanding this, none of the parties here, none of them have told me, I know very little of the facts. I don't know all the facts. I will hear them as the jury does. The lawyers has told me, said this is going to be tough. So with that in mind, it is going to be tough. Understanding that subject matter will be tough can you still be fair and impartial to both sides?
JUROR: Yes.
THE COURT: Now, the plea in this case, I am sorry. Let's go to this. I described to you the preliminary elements of the law, two-stage process of a Capital case, there is guilty which is phase one. If guilt is found it goes to phase two. If the guilt is not found it is not guilty and the case ends right there. But if the State proves its case beyond a reasonable doubt it goes into phase two. And then the jury is imparted with decisions to make, the punishment. They have got two choices, life or death. A unanimous decision on life means they will get a life without the possibility of parole sentence. The jury makes the decision unanimous of death that sentence will be carried out. Now, you have not been told anything other than the allegations by the State. I gave you a sheet describing three types of jurors which assumes the State proves its aggravating factors and there was mitigating facts to consider which will be reasons to not impose the death penalty. Can you identify yourself with one of those three typical types of jurors?
JUROR: I would say most closely type two.
THE COURT: Type two. That means you are kind of already leaning towards or committed to a life without a possibility of parole sentence. Is that right?
JUROR: Yes.
THE COURT: Now, do you have religious, moral or personal belief that the death penalty sentence would be improper, where you couldn't vote for it?
JUROR: I do believe that the death penalty is not something we should be doing.
THE COURT: Not something we should be doing?
JUROR: No.
THE COURT: You are, to me, you are firm with number two. Is that fair enough?
JUROR: Yes.
THE COURT: Okay. That is what I need to know. I need to know your personal opinion and thank you for giving it to me because that is what the lawyers and I are looking for, personal beliefs. You are excused. I don't need you any further.
JUROR: Thank you.
THE COURT: Thank you, Ms. Henderson. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 237. (Whereupon, Juror 237, Peter Kleemoff entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You can be seated.
JUROR: Thank you, sir.
THE COURT: Juror 237, I am not going to take a stab at pronouncing your name. Please say it and then spell it, first and last for Ms. Holston's record.
JUROR: Pete Kleemoff. K-L-E-E-M-O-F-F.
THE COURT: Mr. Kleemoff, my name is Eugene Griffith, welcome back to the courtroom. I gave you an oath Monday to not discuss the case. Has anyone tried to discuss this case with you?
JUROR: No, sir.
THE COURT: Have you discussed the case with anyone?
JUROR: No, sir.
THE COURT: Thank you for following that instruction. Now, there has been publicity including my reading of the indictments into the court record Monday which made allegations of facts that are being made by the State that the jury will consider. There has been publicity since Monday, been publicity before Monday, several years ago in fact. There has been publicity here and there, throughout. I made my comments about the allegations, here they are. Has any of those facts, where ever they came from, whether it be publicity several years ago, recently, this week or otherwise, my comments on the indictments. Have any of those facts, which have been gleamed from you from whatever source, create, made you create or decide or have an opinion in this case as to what happened?
JUROR: No, sir.
THE COURT: You don't have an opinion yet?
JUROR: Not yet.
THE COURT: Now, I ask you to look at your work schedule, personal schedule, home schedule, whatever it is that you have on the horizon, if my qualification process proceeds as it is going, I hope to start the trial early next week. It should go two weeks, maybe three, to the conclusion. That type of schedule will impact anything on your personal schedule?
JUROR: Yes.
THE COURT: What have you got?
JUROR: Vacation rental.
THE COURT: Where are you going?
JUROR: Hilton Head.
THE COURT: When are you going?
JUROR: It is departing 5/18 and coming back 5/25.
THE COURT: I won't be done by then. I don't want to rearrange something you paid for. That is not fair. So that is why I asked that question earlier. I don't want to get into any other issues, don't need to. I am going to excuse you from serving. Thank you for coming and thank you for your patience, enjoy Hilton Head.
JUROR: Thank you.
THE COURT: All right. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring me 177. (Whereupon, Juror 177, Terrie Hanley entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Hanley.
JUROR: Good afternoon.
THE COURT: Would you spell your first and last name for Ms. Holston's record.
JUROR: Yes. It is T-E-R-R-I-E, H-A-N-L-E-Y.
THE COURT: Ms. Hanley, my name is Eugene Griffith for the umpteenth time. I am the presiding Judge, I introduced myself. I have got several questions to ask you. Remember you are under oath, no wrong answers. Now, the oath on Monday, I said don't talk about the case, don't let anyone ask you questions about the case, just don't talk about the case. Have you talked about the case with anyone?
JUROR: No.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: Yes.
THE COURT: Not a surprise. What was your response?
JUROR: I walked away.
THE COURT: Fair enough. That is appropriate. Judge Griffith said don't talk about the case.
JUROR: I first said I can't talk about it and then I walked away.
THE COURT: Okay. That works well. Now, Monday I read the indictments. There are five indictments. I read the facts about the deaths that are being alleged by the State. You have received those facts and I read them out loud. There has been publicity in this case since Monday, I told you to minimize your contact with doing any research or watching social media or regular media. There was media attention before Monday also, there was media attention several years ago. Any media attention, any publicity, no matter where it is from, social media, otherwise. I don't care where it is from. What I want to know, is there any information you have received up to this point, from where ever it came from, has that caused you to form an opinion as to what happened in this case?
JUROR: No.
THE COURT: You have not formed an opinion?
JUROR: No.
THE COURT: Now this testimony, the allegations involve the death of some children. They are young, the testimony is going to be graphic and perhaps even hard. I don't want to represent to you that it will be easy, it will be difficult testimony to hear. Would the testimony involving that type of subject matter make it difficult for you to be fair and impartial to both the State and to Mr. Jones?
JUROR: No.
THE COURT: You can be fair both ways even in light of that testimony or in spite of that difficult testimony?
JUROR: Yes.
THE COURT: All right. Now, I gave you instructions on the law, kind of the procedures regarding a Capital case. A Capital case has two phases potentially. Phase one is the guilt or innocence, determine guilt or innocence, nothing else. Do you understand?
JUROR: Yes.
THE COURT: Now, if the State determines that there is, I am sorry. If the case is proven beyond a reasonable doubt by the State of the guilt and then we proceed to phase two which is the sentencing would then be imposed, in part, by the jury. So they are first required to determine guilt or innocence. If he is innocent the case ends. If it is guilty because the State has proved its case it goes into phase two. Phase two the jury determines the punishment. Two choices, life or death, no other choices. Do you understand?
JUROR: Yes.
THE COURT: The State must prove in phase two the statutory aggravating factor as well as the jury considers any and all mitigating factors that have been presented. I showed you and had you perused a list of three types of jurors. Did you look over that?
JUROR: I did.
THE COURT: And you understood my instructions earlier?
JUROR: Yes.
THE COURT: Can you identify yourself as any one of those three types of potential jurors?
JUROR: Type three.
THE COURT: You are type three?
JUROR: Yes.
THE COURT: And that means in my opinion, that you want to hear everything before you make a decision?
JUROR: Yes.
THE COURT: Is that right?
JUROR: Yes.
THE COURT: Remember, no wrong answers, I want you to continue to being candid with me. I will give you some additional things, considering this, considering that can you be fair. In the phase one portion, guilt or innocence. The State has to prove guilt beyond a reasonable doubt of murder. Now there are some statutory defenses which people are allowed to claim if they wish to. I am going to read the statutory defenses and I have already told you that Mr. Jones is claiming at least one of them. He has plead not guilty by reason of insanity. So other potential defenses which could be presented, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are all statutory defenses that a person may present during a trial. The State has got to convince you beyond a reasonable doubt of the Defendant's guilt. The Defendant can present on those defenses. I will instruct you on those defenses. Now, can you give meaningful consideration to any and all facts and evidence received, testified to during the trial, be fair and impartial, understanding the State has the burden of proving guilt beyond a reasonable doubt and give meaningful consideration to all forms of evidence and the Court's instruction and continually be fair and impartial to both sides
JUROR: Yes.
THE COURT: Understand this, by Mr. Jones' plea of not guilty by reason of insanity there are potentially four verdict forms that could be presented to the jury to make a decision on. Four forms would be guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty whatsoever. Of those four potential verdict forms can you, if selected as a Juror, can you give meaningful consideration to each and every one of those potential verdict forms?
JUROR: Yes.
THE COURT: Like I said, if the jury finds that the State has not met its burden of proof then the case is over and it ends. If the jury believes the State has proven its case beyond a reasonable doubt of the murder the case goes into phase two. Phase two is the penalty phase. In that phase the State is then required to prove an aggravating factor outlined by our statutes beyond a reasonable doubt. Aggravating factors, I will give you several that are listed in the statute would be murder of a policeman, rape of murder, kidnapping of murder, murder of a child, multiple murders. Those are five potential statutory aggravators. The State must prove one of those beyond a reasonable doubt. Now, during the penalty phase a Defendant is allowed to present on mitigating factors. You may hear them in both sides of the case. They could come up any time. Mitigating factors, some are allowed by the statute, these are reasons a Juror would want to find a life without parole sentence.
Potential statutory mitigators, a Defendant had 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 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 or any factors a Juror hears, believes, impacts a reason to vote for life without parole such as the Defendant's walk in life, he had a rough childhood, come from a broken home, any aspects of that can also be considered and are allowable. So my question to you is, can you give meaningful consideration to the testimony and evidence knowing the State has got to prove an aggravating factor beyond a reasonable doubt as well as any and all evidence of mitigation presented. Can you give meaningful consideration to all of that evidence, considering my instructions on the law and reach a fair and impartial verdict for each side. Can you do that?
JUROR: Yes.
THE COURT: Also, do you have, in the sentencing phase there are only two potential verdicts, life and death, no middle ground. One of the two. The death penalty is not automatic. Once you get to the sentencing phase the State has got to prove its aggravating factors, mitigating factors are presented which there is no requirement that they have got to be proven, they are shown. So you hear about it, he had a tough childhood. That is proven by just presenting. Okay. You don't have to consider, you consider whatever you like of mitigating factors. Do you have any religious, personal or moral belief which would prevent you from signing a verdict of punishment by death?
JUROR: No.
THE COURT: Do you have any religious, moral or personal belief at all which would prevent you from finding a sentence of punishment of life without the possibility of parole knowing that would mean live out the balance of your life in jail?
JUROR: No.
THE COURT: You could find any one?
JUROR: Yes.
THE COURT: Do you know of any reason whatsoever that you couldn't be fair and impartial to both sides?
JUROR: No.
THE COURT: I think that is all I have got. Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: How are you doing today?
JUROR: I am doing all right.
ROBERT MADSEN: You understand what the Judge was telling you that at this point and time it is my chance to talk to you and there is no right or wrong answers. Just trying to find out what your feelings are. Okay?
JUROR: Okay.
ROBERT MADSEN: I noticed looking at your Juror sheet that you work outside of the home but you have three young children and you understood that we will run court from 9:00 to 5:00 or 5:30 every day. Would you be able to do that over the weeks that it would take?
JUROR: Yes.
ROBERT MADSEN: Can you just kind of tell me your general feelings on the death penalty?
JUROR: Well, never really had to think about it honestly. I don't have any.
ROBERT MADSEN: Let me ask you this. Let me kind of put you on the spot. Say we waive a magic wand and we make you Governor for the day in South Carolina and there is a Bill on your desk that says we can have the death penalty. And there is a Bill on your desk that says we are going to get rid of the death penalty. Which, as the Governor, would you sign?
JUROR: I would keep it, I would have the death penalty.
ROBERT MADSEN: Why?
JUROR: Sometimes it is mandatory, sometimes it is not.
ROBERT MADSEN: Well, you said sometimes it is mandatory. You understand in South Carolina it is never mandatory.
JUROR: Well, yes. Poor choice of words.
ROBERT MADSEN: And when you say, would you say the death penalty is kind of reserved for the worst of the worst?
JUROR: Yes.
ROBERT MADSEN: Let me change up a little bit. You heard the Judge kind of tell you the different potential verdicts. The Judge told you that Tim has plead not guilty by reason of insanity?
JUROR: Yes.
ROBERT MADSEN: And that basically means a person who pleads not guilty by reason of insanity, admit they did the killing but they said that because of a mental disease or defect that they cannot appreciate the legal or moral wrongfulness of their actions. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: Is that something that you can give meaningful consideration to?
JUROR: Yes.
ROBERT MADSEN: Because some people will say, hey, you have got someone who says they did this crime but because they don't know the legal or moral difference between right or wrong. That is just kind of an excuse or a copout. That is not you?
JUROR: No.
ROBERT MADSEN: So I want to talk to you a little bit about your feelings on punishment for a guilty murderer. And what I mean by that is, you understand, as the Judge told you there is kind of two different parts of a Capital trial. You have got the first part where the guilt or the innocence is determined. And then you have got that second part with the penalty phase on whether it is a life penalty or whether it is the death penalty. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And understand, you know, we are not saying we are getting to the second so we are kind of putting the cart before the horse which is kind of weird at this point and time before it is ever started but you understand that, right?
JUROR: Yes.
ROBERT MADSEN: So in a situation where you have got, you understand that murder means the malicious killing of an innocent person?
JUROR: Yes.
ROBERT MADSEN: You understand that. So we are not talking about someone who didn't know the different between right or wrong. If you heard any evidence of any kind of mental illness you have rejected that and so, no, they knew what they were doing. You understand that?
JUROR: Yes.
ROBERT MADSEN: And we are not talking about any kind of idea. I mean we know that this is the person who did it. Correct?
JUROR: Yes.
ROBERT MADSEN: And we are not talking about self-defense, we are not talking heat of passion. You know, if you have anything on any of those defenses you have rejected all of that. So this person, I mean we know that this person did that murder, intentionally kill that innocent victim. Are you with me?
JUROR: Yes.
ROBERT MADSEN: So my question to you, is in that situation where you have that person who is guilty of that intentional murder of an innocent victim what is your feeling as the death penalty is the appropriate punishment for that guilty murder?
JUROR: Can you repeat that question again.
THE COURT: Simplify it a little bit.
ROBERT MADSEN: Okay. So you understand that you have, you have got someone who is, let me change it. So you have heard defenses and you have rejected those and you have decided this person is guilty of an intentional, malicious murder of an innocent victim. What is your opinion as the death penalty is the appropriate sentence for that guilty murderer.
SUZANNE MAYES: Your Honor, I am going to object to the form of the question.
THE COURT: I understand your objection, I will let her answer. What is your opinion under those circumstances.
JUROR: My opinion, I don't know. I guess it depends on the evidence really, like, are we talking about the first part or the second part?
ROBERT MADSEN: We are saying you have basically gotten past that first part.
JUROR: Past the first part.
ROBERT MADSEN: You have gotten past that first part, you found that this person did an intentional murder. So we know that they are a guilty murderer. And then my question to you is, if you take, what is your thought for the death penalty for that guilty murderer. We know they did it, we know they are guilty, they intentionally murdered an innocent person. What is your feelings about the death penalty?
JUROR: I am all for the death penalty for someone who is guilty of murder, innocent murder.
ROBERT MADSEN: So in that situation where you have got someone that you know has intentionally killed someone and they don't have any justification, no excuse, anything like that. Are you, for that guilty murderer, are you just for the death penalty for that person who intentionally killed another one all the time?
JUROR: No. I mean, that is what I, I am biased, I am not all for the death penalty so I am okay with someone having life without parole. But I am still okay with the death penalty as well.
ROBERT MADSEN: Okay. Let me ask you. When you hear those facts of that guilty murderer, you kind of start off and say, hey, it is death penalty for me and you have got to convince me that the life penalty is appropriate or do you start off in the middle or you start and say, start off with life and I kind of go from there.
JUROR: Start off with life and kind of go from there.
ROBERT MADSEN: So can you kind of think of any types of cases in your mind that the death penalty, I mean it just seems it is the only appropriate punishment.
SUZANNE MAYES: Objection, Your Honor, to the question and the word, only.
THE COURT: Rephrase that question. I am going to sustain that objection to the form of the question.
ROBERT MADSEN: Can you think of any type of case in your mind that just screams the death penalty?
JUROR: No.
ROBERT MADSEN: And so you would want to hear other things?
JUROR: Yes.
ROBERT MADSEN: Someone's background or upbringing be relevant to you in deciding what the penalty was?
JUROR: Yes.
ROBERT MADSEN: Do you think that a life without parole sentence could be a sufficient penalty for a guilty murderer?
JUROR: Yes.
ROBERT MADSEN: How about in a situation where you have got a guilty murderer of multiple children. Would you ever think that a life without parole sentence could be appropriate in that case?
JUROR: Can you say that again.
ROBERT MADSEN: Sure. Do you ever think that a life without parole sentence is a sufficient penalty for someone who is convicted of killing of multiple children?
JUROR: I am still going to have to say yes.
ROBERT MADSEN: Like I said, there is no right or wrong answers. Let me talk with you a little bit about, you understand from what the Judge told you that a death sentence is never required?
JUROR: Yes.
ROBERT MADSEN: Not in this case, not in any case and not even the worse case that you could ever imagine. You understand that the law is always okay with a life without parole sentence. You understand that?
JUROR: Yes.
ROBERT MADSEN: And you understand that if you get to that second part of the trial that the State has to prove aggravation beyond all reasonable doubt. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: But there is also this thing called mitigation. And you understand mitigation isn't some kind of excuse or justification. You understand that?
JUROR: Yes.
ROBERT MADSEN: And it doesn't even have to be related to the killings. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And it could be someone's upbringing or background and that might not be related to the killing itself. But you understand, is that something you would want to hear before deciding what the appropriate sentence was?
JUROR: Yes.
ROBERT MADSEN: And you understand that mitigation, unlike aggravating circumstances, mitigation doesn't have any type of burden of proof?
JUROR: Yes.
ROBERT MADSEN: And so what I mean by that, and well, let me stop. Mitigation can also be whatever an individual Juror finds is mitigation. Just a single Juror, do you understand that?
JUROR: Yes.
ROBERT MADSEN: So in other words, this Juror right here could say, you know what, I saw that he has a good relationship with his father. And to me, you know what, that is mitigation that I want to give a life penalty. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And maybe this Juror says, you know what, I didn't see that but you know what I see, I see some mental illness. And for me I want to give that life. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And so while two jurors don't agree they both come with a different reason for mitigation for themselves. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And then there could be a third Juror that says, you know what, I didn't see either of those. But you know what, for me I don't have reason. I just want to give life based on mercy. And each one of those can be right of what they found. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And you are okay with that?
JUROR: Yes.
ROBERT MADSEN: And so you understand that a Juror never has to have a reason to vote for life?
JUROR: Yes.
ROBERT MADSEN: And if you heard a Juror say, you know what, I can't give you a reason why I want to vote for life. Would you be able to respect their decision?
JUROR: Yes.
ROBERT MADSEN: And so when jurors kind of make that decision or come with up with it in their mind, they call it an individual moral judgment. Have you ever heard that before?
JUROR: No.
ROBERT MADSEN: Individual moral judgment might be kind of like what you determine is the appropriate faith for you. And someone else might have determined in their individual moral judgment that they have a different faith that is appropriate for them. And so you would expect them to respect your decision, wouldn't you?
JUROR: Yes.
ROBERT MADSEN: And at the same time you would respect their individual moral judgment about what their faith is?
JUROR: Yes.
ROBERT MADSEN: Is that correct?
JUROR: Yes.
ROBERT MADSEN: And the law basically says that each of the jurors have to make their own individual moral judgment as to what the appropriate penalty is. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And that doesn't mean that you don't talk or deliberate or respectfully talk with someone else. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: But that means that if someone has come up with their individual moral judgment as to what they believe is the appropriate penalty, that they shouldn't be coerced or bullied or browbeating into changing their own individual moral judgment. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And are you someone that is, you saw someone that was getting bullied out of their individual moral judgment could say, no, no, no, they have the right to their own individual moral judgment, you can't do that?
JUROR: Yes.
ROBERT MADSEN: And if it kept on you, understand you could write a note to the Judge. Judge, this has gone way past civil discourse, can you please help us. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And you understand that your oath as a Juror basically says, hey, if it gets to that point that is what your duty is. Judge, this has just gotten out of hand here. You would do that if you saw that?
JUROR: Yes.
ROBERT MADSEN: Based on the Court's limitations I don't have anything further.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Ms. Hanley.
JUROR: Good afternoon.
SUZANNE MAYES: I am Suzanne Mayes, I am the Deputy Solicitor and as a prosecuting attorney we represent the State in this case. I have a couple of questions for you. One of the things that I heard you say when Mr. Madsen was asking you questions about deciding of punishment. You said I guess it depends on the evidence.
JUROR: Yes.
SUZANNE MAYES: And so in this case, as the Judge told you, there would ultimately be two options in a second phase of the trial for sentencing. That would be life without parole and the death penalty. Can you consider both of those options?
JUROR: Yes.
SUZANNE MAYES: And the Judge explained that there will be aggravating circumstances as well as mitigating factors and that might be anything offered by the defense regarding the Defendant's background. Are all of those things that you could consider in reaching a decision on punishment?
JUROR: Yes.
SUZANNE MAYES: So when you said, I guess it depends on the evidence, you meant the evidence from both sides?
JUROR: Yes.
SUZANNE MAYES: And ultimately if you heard all of the evidence and all of the factors presented and you decided that life without parole was the appropriate choice, is that a choice that you could make in this case?
JUROR: Yes.
SUZANNE MAYES: And if you heard all the evidence and you determine that the death penalty was the appropriate punishment, is that a verdict that you could reach in this case?
JUROR: Yes.
SUZANNE MAYES: A verdict for the death sentence?
JUROR: Yes.
SUZANNE MAYES: With that verdict, if that were to ultimately be the decision of the twelve jurors unanimously for the death penalty, there would be a sheet that goes along with that verdict form where each Juror would have to sign it acknowledging that they agree with and vote for the death sentence. Is that a form that you could sign?
JUROR: Yes.
SUZANNE MAYES: You could sign your name to that?
JUROR: Yes.
SUZANNE MAYES: Nothing further.
THE COURT: Anything further?
BOYD YOUNG: No, Your Honor.
THE COURT: Anybody want to be heard?
BOYD YOUNG: No, Your Honor.
RICK HUBBARD: No, sir.
THE COURT: Ms. Hanley, you are now qualified as a Juror. What that means is you will move into now rechecking the website for qualified jurors instructions. The instructions will be one of two things. Check back tomorrow, check back tomorrow, finally you are going to see, please report back to the courtroom on some date and time. It may be early morning or afternoon. Follow that instruction on qualified Juror as you are now. So you are qualified in the case as a potential Juror. When you come back in the parties will decide which jurors will be on the jury. Until that time I see you again your oath remains, don't talk about the case, do not let anybody interrogate you about the case, do not answer questions about the case. Don't answer questions about the process today. Judge Griffith says don't talk about the case. Don't investigate, social media, otherwise, comment on the case. Do not, be mindful that media is going to be making reports. I don't want those reports, publications or social media or on the television, I don't want those to impact your ability to be fair and impartial so minimize, you see a report involved in this case don't watch it, don't read it, don't listen to it. I want you to make your decision on what you hear in here with the other jurors. I will see you back when we summon you back. Thank you for coming.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We will take a lunch break. See y'all at 2:00.
(Whereupon, a lunch break was taken.)
THE COURT: Bring me 338. (Whereupon, Juror 338, Rachna Prasad entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: I am going to ask you to spell your first and last name.
JUROR: R-A-C-H-N-A, P-R-A-S-A-D.
THE COURT: All right, Ma'am. Thank you for your patience. I think the Clerk fed you?
JUROR: Yes. Thank you for that.
THE COURT: I placed you under oath Monday so I am going to ask you a bunch of questions. You are under oath to tell the truth. Some of these questions and your responses are going to be opinions, no right or wrong answers on your opinions. It is just who you are. Now, Monday I said take an oath and promise me to not discuss the case with anybody, don't let anybody discuss the case with you. Has anybody tried to discuss the case with you?
JUROR: Discuss the case, no.
THE COURT: Have you discussed the case with anyone?
JUROR: No.
THE COURT: There has been facts alleged when I read the indictments Monday. So you heard those, if you were in the courtroom and following my instructions to listen, I gave some facts about the allegations the State has made. There has been publicity of all sorts since Monday and before Monday. So before you took your oath certainly there was some publicity that could have been seen or heard by you, even several years ago. I am not concerned about when or how but if you considered and all of the publicity, the facts outlined by the Court and the allegations on the indictments, considering any of those things have you formed an opinion as to what happened in this case?
JUROR: I have not.
THE COURT: Anything influence you already that you have seen or heard, I know exactly how to decide that case?
JUROR: No, I have not seen any of the publicity right now. And then I guess when it happened several years back I am sure I had seen the headline but I don't remember anything from it.
THE COURT: Fair enough. Personally on your work schedule, home schedule, family obligation schedule, if you were selected as a qualified Juror, potentially the trial would start next week and it would last two, maybe three weeks, so into early June. Do you have anything on your personal schedule of any type that if you were selected that it would really impact your personal calendar?
JUROR: Personal calendar, no.
THE COURT: Everybody has the inconvenience of not working and you are kind of out of your routine. I understand that but that is not what I was asking about. Right now you could serve if so selected?
JUROR: Yes.
THE COURT: Very well. Now, I gave you some instructions as a group about the process, the criminal procedures, the aspects of the criminal law regarding this case. I didn't ask you particularly, the allegations in this case involved allegations of the death of some children. The subject matter will be difficult and unpleasant and perhaps graphic and harsh. I don't want to represent to you that it is anything other than difficult. Would subject matter of that type create an issue for you personally where you could not listen fair and impartial, you would have a hard time being fair to both sides?
JUROR: That is a little hard to answer because obviously it would be hard to hear. But as far as being impartial to the facts I don't think that would be a problem.
THE COURT: And all of the parties, I have not heard much of the testimony, a little bit of preliminary hearings I have heard some testimony. But the lawyers have told me, Judge, this is going to be tough. That is kind of in their words. So understanding they have represented to the Court that it would be tough. Certainly you wouldn't ask to go see it, maybe you would but it is difficult but you could listen and then evaluate it fairly and be fair to both sides?
JUROR: Yes.
THE COURT: Now, I read you that script about the Capital trial and how it is in two phases if necessary. Phase one is guilt or innocence and phase two is the punishment phase. So, if you were selected as a Juror and if the State proves guilt beyond a reasonable doubt, if innocent or not guilty was found the case ends, it stops right there. But if it goes into phase two, because of a unanimous of guilt is found, because the State proved it beyond a reasonable doubt then you are sitting in phase two as a Juror. I handed to you to review a script of three types of potential jurors, type one, two and three. Not knowing any more than you know, we don't know very much, you and I know basically the same about the case, allegations only. But the State proves its case, aggravating circumstances get proven, mitigation facts get presented. What type of Juror do you identify yourself as being of those three types?
JUROR: I would say the third one.
THE COURT: Third one. And that type of Juror is someone who wants to hear everything. I have not made up my mind, I don't have a preconceived notion. I want to hear everything and then make up my mind.
JUROR: Correct.
THE COURT: Now, in this case, I am going to go back and describe, I haven't asked you about the jury list. Did you examine the jury--
JUROR: I did.
THE COURT: Not the jury list, the witness list. Potential witnesses, I can tell you not all of those witnesses are likely to be called. A lot of them but not all of them. Nevertheless we are required to disclose all potential witnesses. Do you know any of them?
JUROR: I do not.
THE COURT: All right. So they couldn't cause you to be fair and impartial nevertheless, could they?
JUROR: Correct.
THE COURT: All right, phase two, phase trial. Phase one, the guilt or innocence. There are some potential defenses that are allowed to be heard or presented by people accused. I am going to read you the statutory defenses and then come back and ask you another question. These are all statutory defenses, I am not going to represent to you that all of them are applicable to this case. But some of them could be. Potential defenses are identification, accident, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. Now, I do also tell you that the case will be presented, phase one, the State has got to prove the elements of murder beyond a reasonable doubt. Aspect of defenses will be presented during that phase also. Can you give meaningful consideration to the testimony and evidence the State presents regarding its attempting the murder and the elements thereof as well as any defenses and facts presented supporting those defenses that the parties make. Can you give consideration, meaningful consideration to all of those defenses and be a fair and impartial Juror in this case?
JUROR: I would to the best of my ability.
THE COURT: Fair enough. Mr. Jones has tendered a plea of not guilty by reason of insanity and by that plea, that doesn't rule out some other defenses that could be presented. Potentially by way of his plea the jury could get a verdict form that they would have to sign one of these four verdicts. Guilty, guilty but mentally impaired, not guilty by reason of insanity and not guilty at all. Those are four potential verdict forms. Could you give meaningful consideration to all of those four potential verdict forms and be fair and impartial and evaluate the testimony and evidence from the State and the defense and be fair to both sides?
JUROR: Yes.
THE COURT: And considering the testimony consistent with my instructions?
JUROR: Yes.
THE COURT: All right. As I said, if the case is not proven by the State or the Defense has proven and it is a not guilty verdict the case is over, it ends right there. If the State meets it burden and proves the murder then it goes to phase two. At that point the jury is then tasked with imparting punishment. Got two choices, life without parole or death. And if a jury reaches a verdict unanimously on either one that sentence will be carried out. So unanimous to death, the death penalty is carried out. If the jury is unanimous on life then life without parole is carried out. That means the balance of their life and don't get out. In that case the State then has to prove an aggravating factor in this punishment phase. Aggravating factors outlined by the statute, I am going to name off several of them. Some of them may not be applicable, the State has to prove one of these. Murder of a police, rape of murder, kidnapping with murder, murder of a child, multiple murders.
Those are potential aggravating factors. The State has got to prove one of those beyond a reasonable doubt during the sentencing portion. Additionally there are mitigating circumstances include 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 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 below the age of 18 at the time of the crime. The Defendant was provoked by the victim in committing the murder.
And lastly, the Defendant had mental retardation at the time of the crime. Those are statutory mitigating factors. There are also non-statutory reasons. Any evidence, any reason whatsoever that you may vote for a life without parole is a mitigating factor such as the way he was raised, broken home, troubled childhood, whatever. Anything that sort can also be considered by jurors. Thus my question to you now, can you give meaningful consideration to the State's burden of proof to the aggravating factors beyond a reasonable doubt as well as consider any mitigating factors that are presented, consider my instructions on the law and make a decision for punishment considering my instructions in the law and mitigating factors and circumstances you have seen or heard.
JUROR: I could to the best of my ability.
THE COURT: Do you have any religious, moral or personal belief which would prevent you from finding a verdict of punishment of the death penalty?
JUROR: No, to be honest I have not given the death penalty much thought aside from--
THE COURT: You just know it exist?
JUROR: Yes, aside from you, you know, cost expense, risks.
THE COURT: Okay. Do you have any religious, moral or personal belief why you could not impose a life without parole sentence?
JUROR: I do not.
THE COURT: All right. Now, there is, the death penalty is not automatic. Two options, life or death. The jury gets to decide one of the two. Can you give meaningful consideration to all the evidence and factors, instructions of the Court and act as a fair and impartial Juror to both the State and the Defense?
JUROR: Yes.
THE COURT: And consider the subject matter which will be difficult?
JUROR: Yes.
THE COURT: I think that is all of my questions. Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon.
JUROR: Good afternoon.
BILL MCGUIRE: Excuse me, I am a little hoarse today. My name is Bill, Bill McGuire, I am one of the lawyers on the case. Is it Ms. Prasad.
JUROR: Prasad.
BILL MCGUIRE: Prasad.
JUROR: Yes.
BILL MCGUIRE: Okay. In response to the Judge's last couple of questions about the death penalty, you threw out that you sort of generally knew it existed and you had some thoughts about cost expense and risks. I am going to take them one at a time. When you said, I will go backwards. When you said risk, what did you think, what were you thinking about?
JUROR: I guess more so risk of, a risk to society and that is why you would move forward with the death penalty.
BILL MCGUIRE: Okay. And that is because if, totally incapacitated the person, they are not capable of doing anything violent again?
JUROR: Or that they would be violent and so the matter of potential escape or potential freedom.
BILL MCGUIRE: Okay.
JUROR: And continuing to be violent so the better option to eliminate the risk.
BILL MCGUIRE: Okay. Maybe an assault on a guard or another inmate or escape, something like that?
JUROR: Right, yes.
BILL MCGUIRE: Okay. And that weighs in favor of the death penalty with you?
JUROR: Right.
BILL MCGUIRE: And expense, what did you mean about expense?
JUROR: So to not do the death penalty there is a cost to, you know, provide facility and security for those that have been accused and convicted.
BILL MCGUIRE: And that cost is greater than putting somebody to death?
JUROR: I don't know which, is the cost greater than the risk or is the risk greater than the cost. That I am not sure.
BILL MCGUIRE: Lawyers are a lot more expensive then--
SHAWN GRAHAM: Objection, Your Honor. I don't know that this is relevant. He is trying to answer questions as well.
THE COURT: Sustained, moving on. Understand what she does as an insurance, that is kind of, I understand her answer and your follow-up, move on.
BILL MCGUIRE: That is the only question I had on that. Thank you, Judge. And, okay, what I want to do is just ask you, one-hundred percent, your personal opinions, don't tell me what I want hear or what you think I want to hear or the Judge. This is just one-hundred percent your personal opinions and beliefs. Okay. This is one day where everything you say is right along as it is truth.
JUROR: Okay.
BILL MCGUIRE: If you were Governor for the day and you had a Bill on your desk and you could sign it and we would either keep having the death penalty or we would not have the death penalty which one would you sign?
JUROR: Without any kind of information, I don't think that I could sign either one of them.
BILL MCGUIRE: Okay.
JUROR: So ask me at this moment, I honestly don't know which would be or wouldn't be the better option. I would hate to sign that death penalty, should be without really knowing which way I sit on that one. If that makes sense.
BILL MCGUIRE: It does make sense. Like I said, this is the day where everything is right as long as it is truthful. Some people might say, you know, some offenses, some crimes are just so bad, so aggravating, that maybe the death penalty should be pretty much automatic for them. Like a rape, a sexual assault in a murder, killing of a police officer in the line of duty, that sort of thing. If somebody were to come to you, at work at the water cooler and say, you know what, if the person really did it, not an ancient, not self-defense and intentionally took innocent lives, meant to do it, chose to kill, knew right from wrong and the victims were innocent children, killed one after the other. In that situation, and that person said, you know, I think that should be automatic for the death penalty. What would you say in response to that?
JUROR: In a perfect world maybe but I am not sure how I feel about a life for a life. So I am not sure to be honest.
BILL MCGUIRE: Okay. And we have heard phrases like life or a life or if you take an innocent life you forfeit yours or an eye for an eye. Do these things resonate with you, they don't describe you?
JUROR: I would say, yes. I guess the difficult part is, particularly, yeah, when somebody does something that heinous you don't want them to be part of society. But then again, are you kind of almost being hypocritical where you are, okay, if they did this to someone now you do this to them.
BILL MCGUIRE: Sort of the, if we are going to kill somebody to teach the world that killing is wrong doesn't really make sense?
JUROR: Right. It is almost a catch twenty-two type of situation.
BILL MCGUIRE: It is. I agree with you, a lot of people say that. Now, in this case there is a plea of not guilty by reason of insanity. And some people might say, if somebody knew right from wrong or let me rephrase that. Just knowing the, like the Judge said, we don't know a whole lot of facts here. Just the death of innocent children and not guilty by reason of insanity would mean that a person would admit to the killing. And the only way they could be found not guilty by reason of insanity is if you found the person, because they had some mental defect or disease that they couldn't distinguish legal or moral right from wrong. Does that make sense?
JUROR: It does.
BILL MCGUIRE: And some people might say, if the evidence is there and the person definitely did the killing that is not an issue, I can't really consider a not guilty by reason of insanity. It sounds like kind of letting somebody off. Do you agree with that?
JUROR: I guess, my questions would be behind the insanity of what is the measure of insanity, what are you defining as insanity. Was insanity, you know, what was the mind-frame during that time that the actions were taken. So in my line of work measurement is huge. So what does insanity actually mean.
BILL MCGUIRE: If you were to hear testimony from expert witnesses describing what that meant and evidence supporting that, is that something that you could truly consider?
JUROR: With that type of information, sure.
BILL MCGUIRE: And if you, if in your mind you thought they did present enough information to support that verdict, is that a verdict you could really consider or would you still have some hesitation because it would kind of be letting someone off still?
JUROR: It would depend on the information provided and the plan of action after that. So obviously you, claimed insanity you wouldn't just become part of society again. What would then be that plan. So you have been declared insane and then what, now what, essentially. Does that make sense.
BILL MCGUIRE: Some people might fear that if they don't really know, if they are not told what that means it kind of lets the guy out into society. Do you think that?
JUROR: So you are saying if they have been declared insane they should still be part of society.
BILL MCGUIRE: No, I am saying if you found--
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: Hang on a second.
SHAWN GRAHAM: Your Honor has already ruled on this area and where it goes and where it stops. And I think we are past that.
THE COURT: Rephrase your question.
BILL MCGUIRE: Sure. What I am saying is, if you and eleven other jurors, let's say you all voted not guilty by reason of insanity, some people might have a fear in voting that way because they think the person gets put out back in society like you said. Is that a fear that you have?
JUROR: So here is my question and maybe I don't understand.
SHAWN GRAHAM: Your Honor,--
THE COURT: Hang on. Let's clarify this and let her step out real quick just so we know where we are going because this is one of the issues it took so long to get started. Let me clear up, you are doing fine, I just need to talk to the lawyers. Step out real quick and we will have you right back in here. A All right. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Finish that question and let's hear it and then I will hear Mr. Graham on why he is objecting to it. He may not object to it if you finish it.
BILL MCGUIRE: Sure. The way I started was, in considering the not guilty by reason of insanity verdict, some people might have a fear that that could be, she stated earlier, letting somebody back out into society. Ma'am, would that be a fear that you would share. This is in response to her comments about I would have concerns about what the plan was.
THE COURT: She is a risk reward panelist because what she does for a living, she evaluates the risk and reward and benefit, all the costs, all of that. She talks like a person who works for the insurance company because she is.
BILL MCGUIRE: Right. And she said she would have some concerns about not knowing what the plan would be, the resulting plan after an NGRI verdict. And I have sort of, I have stayed away from the stuff we have talked about earlier, just ask her, you know, some people have a fear, considering that because, as you said, it would be letting somebody back into society. Do you share that fear.
THE COURT: All right, Mr. Graham.
SHAWN GRAHAM: We have delve into that area, it is beyond what her job as a Juror would be. Right or wrong. What happens, it never tells a Juror what happens. I don't think it is appropriate to go down this line of questioning. Even if she has that question voicing to engage in I think is improper.
BILL MCGUIRE: And, Judge, we are not saying, let me tell you what will happen. We are not suggesting anything like that. I am just asking her, would she maybe not fully consider NGRI because she might have some fear about not knowing what would happen. They don't get to have it both says, let's keep her in the dark and not ask about that and her fears based on being in the dark and let's not tell her what really happens. And so we can't tell her about that. I mean they can't have their cake and eat it too.
THE COURT: Then she asked the next question, exactly what would the plan entail and give me the details of it. That is the type of person she is. If she reask that question--
BILL MCGUIRE: I will say--
THE COURT: It won't surprise me.
BILL MCGUIRE: I will say, I am not allowed to say that.
THE COURT: How about this. Blame it on me but the Court--
BILL MCGUIRE: I am happy to blame it on you.
THE COURT: You can blame it on me.
RICK HUBBARD: Judge, do we even really want to get there.
THE COURT: I really don't. I think you have asked her does she have a fear because it sounds like you are getting off scott free and she says, she is kind of, she is a little bit, she is unsure as to what the result is or how to ask the question.
BILL MCGUIRE: I think the Defendant has the right, she has some fear or reservation or hesitation.
THE COURT: Mr. Graham.
SHAWN GRAHAM: She has answered that question, she does have a fear of it.
BILL MCGUIRE: She hasn't, she just said she would be concerned about not knowing the plan. But I didn't tie that up to not considering NGRI as a verdict because of that fear. That is the question. And if she says, yes, I want to know what happens, what happens, Mr. McGuire. I will say, the Judge said we are not allowed to say that.
THE COURT: Yes, not allowed to go into that.
BILL MCGUIRE: Right.
SHAWN GRAHAM: My opinion is he has already asked, he has already got the information, we shouldn't get into any further. All Your Honor is ever going to be able to tell her is you are going to give the law that applies to the case and she is going to have to apply it. You are never going to answer the question for her about what happens.
THE COURT: How about this. And I will let him do this. Because you have a concern as to what the plan may be and I can't say what the plan is. Could you still consider--
BILL MCGUIRE: I will do that.
THE COURT: That is a fair question, leave it alone.
BILL MCGUIRE: Sure.
THE COURT: Bring her back in.
(Whereupon, the Juror entered the courtroom.)
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: So we left off, we were talking about the potential verdict of not guilty by reason of insanity. And it sounds like you had a concern about that, not knowing what would happen if somebody was found not guilty by reason of insanity. And not knowing what would happen, would that cause you to perhaps not consider that verdict?
JUROR: I would need to know what happened to consider that verdict.
BILL MCGUIRE: And what if I was to tell you that the rules of the Court and the Judge would never let us tell you what happened in the case of not guilty by reason of insanity verdict. Is that something that you could consider--
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: I understand your objection.
SHAWN GRAHAM: I would ask Your Honor to give any direction that needs to be given at this point about what the law is and how to apply.
THE COURT: I am going to allow the question to go. And I agree, the next Juror will be so, I am sustaining your objection but let her answer that question subject to, I always give instructions. That is what the Court's and they explain the law and so that is where the lawyers are kind of wondering, shouldn't I be telling you, all right, if y'all do this then that. The end result plan is not allowed to be given in a trial. Okay. It is not. So he is asking you, if that were the case then would that affect your ability to consider it. So you are not going to have.--
JUROR: Can I ask a question?
THE COURT: You may. A So in the case of the death penalty, you know death is the result.
THE COURT: That is the result. A And if you know the life sentence without parole, you know that is a result.
THE COURT: Correct. A But in the case of not guilty by insanity, you don't know the result.
THE COURT: Don't know the result. A I don't understand.
THE COURT: That is just the Court rules.
BILL MCGUIRE: So the result of that you would always be in the dark with regard to the result of a not guilty by reason of insanity verdict. Knowing you would always be in the dark about that, not knowing what would happen, would that cause you to maybe not consider that verdict as a true verdict. Would you vote for it not knowing what would happen?
JUROR: I have no words honestly because without knowing what the result is how can you choose that option.
BILL MCGUIRE: So it sounds like you do have some reservations about choosing that option, not knowing the result.
JUROR: It is just not knowing the result. You know the result of the other options but you don't know the result of that option.
THE COURT: Okay. She has answered that sufficiently. Move on.
BILL MCGUIRE: Okay. I don't want to put you in the position of, let's say you are already selected to be on a jury. You and other, eleven other jurors found the person guilty beyond a reasonable doubt, they definitely did it, knew right from wrong, chose to kill innocent children. Is the life penalty, life without parole, is that sufficient to punish that kind of killing?
JUROR: I can't say I have an answer for that right now. It depends on all of the facts and all of the information.
BILL MCGUIRE: Okay. That is exactly where I was heading. Do you believe the background of the person who actually committed the killings, like his childhood, his history, could that be, should that be relevant in fixing punishment for this intentional killing of innocent children?
JUROR: I am not sure if it should be relevant for punishment but I think it should be relevant for evaluation. Like information to consider.
BILL MCGUIRE: Okay. Well, I guess that is my point. Could something in someone's background not connected to the case, the offense, the incident, something that happened when they were growing up as a child, their walk in life, I think the Judge talked about a really hard childhood or maybe growing up in poverty, these things. Could these things be relevant in trying to fix the punishment for the Defendant, for the killer, if it had no connection to the crime?
JUROR: So I think an upbringing of a child does determine whether they know right from wrong, going into an adult. Whether that plays into the punishment of an act that they have committed, I want to say yes because you are still essentially, whether you know right from wrong you still harmed others and you are still potentially a risk to society if that makes sense.
BILL MCGUIRE: So would you be looking at factors that would sort of predict maybe someone's future danger to society?
JUROR: Not so much someone's future danger but what you have done.
BILL MCGUIRE: Okay. Let me ask you about the concept of mercy. Is mercy something that somebody has to earn or is mercy something that is freely bestowed, in your view, your personal opinion?
JUROR: Mercy freely earned or something bestowed.
BILL MCGUIRE: Does somebody have to earn mercy or is it something that is just freely given to somebody, kind of like grace or forgiveness. Is that something you have to earn or is that something we, as humans, just freely give to somebody, in your personal view?
JUROR: I think that is something we, as humans, choose to give or not to give.
BILL MCGUIRE: Okay. I want to talk to you a little bit sort of the process, how this works. And I am going to start off with, did you know that the death penalty is never required in any case, not this case, not the worse case?
JUROR: I did not.
BILL MCGUIRE: A lot of people show up and think, well, if the Government proves A and B and C that there is just one result and that is the death penalty. That is not the way it works so I am going to walk through this with you. If there is something that I say that is confusing stop me and you start asking me questions. Okay?
JUROR: Okay.
BILL MCGUIRE: If we get to a sentencing phase, the punishment phase, determining if Mr. Jones, life without parole in prison or he would die in prison or does he get the death penalty, no Juror ever has to vote for the death penalty in any situation. Did you know that?
JUROR: Can you ask the question again?
BILL MCGUIRE: Yes. It was poorly worded. So a lot of people think that when we show up for a jury trial and the Government is asking for the death penalty, a lot of people thinks that, well, has the State proved this and they proved this and they proved this, we check those boxes off on the verdict form and then the result is, well, they proved everything so it has to be death. Is that what you thought before you got here?
JUROR: To be honest, I didn't think much before I got here.
BILL MCGUIRE: You really haven't contemplated the death penalty or how it works?
JUROR: No.
BILL MCGUIRE: Do you think it is used about right or too often or not enough?
JUROR: I definitely think it is not something that should be used lightly. But I also am not sure which is the better option, life in prison without parole or the death penalty.
BILL MCGUIRE: Okay. Well, let me tell you a little bit about how it works and see if you can, if you have an opinion about these legal principles. So the way it would work, like the Judge said, if we got to a second phase, the punishment phase you would have twelve individual jurors and the law requires them to reach what is called and described as their individual moral judgment. Life penalty, death penalty and you would expect some disagreement there in a matter so grave whether a human being lives or dies. So that is the starting point, that it is twelve individual jurors, they all get to have their own conscientiously held position. And the way that that can work is sort of that concept of mitigation that the Judge told you. Mitigation is really any reason that any Juror would choose to vote for the life penalty, life without parole and not the death penalty. So it can be just anything. And say one Juror, the first Juror sitting here might say that I saw that a Defendant had a condition of mental illness and I found that significant, that resonated with me and I am not going to vote to put that person to death. And that is their individual reason. And they might have more reasons but they can say that is my main reason. Somebody else could say, when looking at his background, growing up, adulthood he had and the relationship with family members, maybe his father and I saw a spark of humanity in that, some hope of redemption and that is my reason, that resonated with me. And those two jurors don't even have to agree with each other, everybody can have their own different reason, nobody has to agree. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Does that sound right to you, like fair?
JUROR: Yes.
BILL MCGUIRE: Okay. And another Juror might actually say, I don't have a reason, the Judge said we could vote for the life penalty for any reason, no reason or mercy alone. And somebody might say, after hearing everything, after seeing everything, it just doesn't fit with me. You know, after I contemplate the rest of my life, I don't want to have the burden of having killed another human being. And I just don't want to do it. And they could actually say I don't really have a reason to put in words. Does that sound fair that people could say that?
JUROR: No.
BILL MCGUIRE: They should have a reason?
JUROR: Your life in this trial doesn't matter. So your opinion, your, I don't want to think belief, but your belief of how it is going to affect you as a person isn't, is not what, is not what is at stake right now.
BILL MCGUIRE: Okay. What if they say it is not my future that is my problem, I am not thinking about my burden. What if someone just says, I heard it all, I saw it all and I can't put it into words but the death penalty is just not right for me, I want to vote for the life penalty, life without parole. Does it sound fair that they could say that and have no reason?
JUROR: I don't know whether it is fair or not but I understand that it is possible that they could say that.
BILL MCGUIRE: Okay. Well, some people are better at expressing themselves and sticking up for themselves than other people. And some people might not be able to put their emotions into words. But if they just said, my consciously held belief, it would hurt my conscience if I had to change my position. My position, life without parole penalty, could you let them have that, stick with it, does that sound fair that they should be able to say that, retain that position if they don't even have a reason?
JUROR: No.
BILL MCGUIRE: I want to go back to one question that I forgot to ask you at the very bargaining. Do you know anyone else that was called for jury duty?
JUROR: Like personally?
BILL MCGUIRE: Yes, friends, coworkers, anybody?
JUROR: I do not.
BILL MCGUIRE: So there are a lot of rules in court. Some of them are for Mr. Jones, some of them are for lawyers but some of them actually are for jurors. And there is a principle of law, let's say some Juror comes to their individual moral judgment and says the life penalty, that is the penalty I want to vote for and they have a reason. It is actually unlawful, it is agonist the rules for them to change that position and throw in with the majority--
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: Rephrase that question.
BILL MCGUIRE: So if you were to be selected on the jury, the jurors would take an oath and that means they have to decide the case on the law and the Judge's instructions. Part of those instructions require jurors to reach their own individual moral judgment based on whatever they are seeing. And it is actually against the Juror oath, it is unlawful for a juror--
SHAWN GRAHAM: Objection, Your Honor, if we can approach.
THE COURT: You may. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
BILL MCGUIRE: So we were talking about the Juror oath and the way that works is, once an individual moral reaches their individual moral judgment, that is how it is described under the law, once that becomes a consciously held belief that would harm their conscience to change it, they have a duty and obligation to stick with that position. Did you know that?
JUROR: I don't think so.
BILL MCGUIRE: Does it sound fair?
JUROR: No.
BILL MCGUIRE: Why?
JUROR: Because, again, it is going with one person's belief when it really should be going based on the facts and the evidence to lead to a certain result. What you believe can be different than what somebody else believes but your belief is not what is on trial right now.
BILL MCGUIRE: Well, a lot people will describe the first part of the trial as part of the trial is based on science, fact and evidence because something either happened or didn't, got the right guy or didn't. But can you see how different jurors from different walks of life would come here and have different positions on the ultimate question of whether a human being lives or dies?
JUROR: Yes, I understand that.
BILL MCGUIRE: And maybe, well, and just the law is that once somebody has that belief and it is conscientiously held and it would harm their conscience to change their view, their position, that the rules of court say that it would be wrong to coerce or force or bully somebody to give up their belief as to whether Mr. Jones lives or dies. Does that sound fair?
JUROR: To convince someone to change their stance on a position. Is that what you are asking?
BILL MCGUIRE: In a coercive manner, meaning that, sometimes you can just look at somebody and say, you know what, that is their belief, they really think that, that they seem to hold onto this in a really conscious manner, it looks like it would harm their conscience to get them to change their position and yet other people would still try to force them to or coerce them. It would be wrong for that Juror to give up their position just because they were coerced. Does that make sense?
JUROR: It does make sense.
BILL MCGUIRE: Okay. If you saw that going on, whether people were coercing somebody to change their position unless they, for example, their position was they were going to vote for life without parole and you could see it on their face, they really believe that is what they wanted to do, that was their personal individual moral judgment. And things got beyond civil discourse, in deliberations it became coercion. The rules say that is wrong. Would you jump in and stop that?
JUROR: I want to say yes. A lot of the work that I do currently, because you, you don't want to wrongfully change someone's mind. You want to make sure you are changing their mind based on the information that you have. And the reasoning why they have chose their decision.
BILL MCGUIRE: Okay. That sounds right.
JUROR: My method would actually be, instead of trying to convince you to follow my path, I would understand why you chose the path that you chose.
BILL MCGUIRE: Okay. And, again, some of the rules of court are for jurors and each Juror is entitled to absolute respect for their position. And if somebody had a position different from yours you could absolutely respect that?
JUROR: Yes.
BILL MCGUIRE: And you would want your position respected?
JUROR: Right.
BILL MCGUIRE: Okay. And if respect left the jury room and things got beyond civil discourse, became coercive, one of the things you could do is send a note out to the Judge saying I believe things are getting in a coercive environment, fairness, dignity, decorum has left these proceedings. Could you do that?
JUROR: Yes, absolutely.
BILL MCGUIRE: If I can just have one second, Judge.
BILL MCGUIRE: That is all I have for you. Thank you very much.
SHAWN GRAHAM: Your Honor, can we approach?
THE COURT: You may. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Ma'am, I am going to put you outside, I am going to put something on the record the lawyers have alerted me to. Nothing you have done wrong. The question I asked you earlier, not being able to give you an answer. I want to put something about that on the record. Step out and I will have you right back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Graham, you asked for a sidebar, let me hear you.
SHAWN GRAHAM: I approached at sidebar, Your Honor, to tell you that it is the State's belief that she was not going to be qualified. That she has already said that, when she was questioned about not guilty by reason of insanity, that she wanted to know what was going to happen if she found that verdict and that would be important to her in deciding it and Your Honor is never going to be able to tell her that. So she is going to have an unanswered question and I don't believe that that, I don't believe, I think that she expressed that she would not be able to consider that verdict sufficiently enough without us having to delve further into it.
THE COURT: Mr. McGuire.
BILL MCGUIRE: Well, first off, I will address her comments and statements. I don't believe she ever said, I cannot consider not guilty by reason of insanity. She indicated that she would have some concern not knowing, she said it did not make sense to her. But, you know, all twelve votes in, it will be death; all votes for life there will be life. But we don't know if we vote this other one. And we had to just say, yes, the rules don't allow you to know what would happen and she said, I don't think she, her ultimate response to that was, not I can't consider it. She just said, I would have a concern. Well, people have a lot of concerns in this case, a lot of people would have a lot of concerns. That is not a disqualified issue. If she is substantially impaired, she has got to go but that was not her statement, that wasn't her comment. So based on what she said, taken this up in order, she is qualified. We are in this position because the State doesn't want anyone to know what happens so we are kind of shooting in the dark and if they are in the dark is it fair for someone to have a concern. Sure. Our position was, you could tell them, you could tell them exactly what happens by statute or you could say something along the lines of, we can't tell you exactly what would happen but we can tell you there is a plan, a vehicle in place to take care of that per statute under South Carolina law. So something would happen, there would be a plan, we just can't tell you the details. I am happy if you want to tell her that.
THE COURT: What do y'all say on that instruction, that is she, I mean, this is going to come up again. How would, so far I have said nothing, can't go into it. But there will be some monitoring, a plan of supervision monitoring, whatever you want to call that.
RICK HUBBARD: Here is the problem, Judge, what I see happening. They are asking all of these question and then they are going say, Judge, during the trial they want to be able to ask our experts what happens. And then they want to be able to bring this up again, this is going to keep going on, Judge, and this is all off the table here. We are way out off the path where we are suppose to be. That is the problem here, that is the problem. And now because we got off the path, she asked a very bright question. She said, well, what happens in this situation. And unfortunately Your Honor can't answer it. And if the jury sent a question out you couldn't answer it. And our problem is, what she said is, in order to consider that she wants that information. So that is why, Judge, if she gets on the jury and we get a conviction and we get death obviously there is going to be other lawyers over on this side and will go, why wasn't that addressed. Why wasn't the State arguing for this and not the Defense. I think it is tainted at this point, that is the problem. She seems to be a very fine person trying hard. But you have got something on the record now, Judge, I think, you can't erase it now. I think it is a problem and it is a problem that if it isn't addressed now it is going to come back to bite us later.
BILL MCGUIRE: Well, this is just due to the peculiar nature that we don't want jurors to pass upon NGRI. We would renew our motion to inform them in some sort of fashion that, as the consequence of their NGRI verdict, whether it is just the full statute, you just say this is the statute, read the law word for word as it is in the code books or we agree with something that gets the message across that this is not putting this guy into society or on the street. You know, a reference to we have State laws that deal with this. If you want to go ask specific, a person would always be committed to the South Carolina Department of Health pursuant to statutory guidelines and procedures. We can do that. There are a lot of ways to cure this but this is, I agree with Mr. Hubbard, this is going to come up continually whether they are in voir dire or you are going to get a note from the jury room, from the Foreman, and we have to figure out how to intelligently answer this. And you have two choices, let's keep them totally in the dark which, we believe it would be error if we keep you in the dark and they don't know the consequences of their actions with regard to NGRI pursuant to Simmons, Kelly, Shafer, Poindexter, I will put that on the record. The State wants to keep you in the dark but then when something comes up about the dark and they are confused, well, let's not tell. You know, it is sort, we are sort of in this spiral of having this question come up again and again and again and we have got, I think we have to find, we need to talk about some resolution.
RICK HUBBARD: And that is why I keep going, they keep saying the State wants to keep you in the dark. The law says they can't go there.
THE COURT: I agree. And, you know, if you start looking at all of the things that jurors aren't told, let's make certain Mr. Jones is not shackled, orange, we are not telling them he is in custody, I mean there is a lot of things that jurors aren't told because it would impact their decision.
RICK HUBBARD: Right.
THE COURT: We want to decide, what they decide based upon what they are presented with.
RICK HUBBARD: Unfortunately with this potential Juror, we got so sidetracked and now there is something on the record that she said she would need to know in order to consider that form of verdict. And, Judge, as much as I don't believe that is what the verdict should be I am in the strange position of saying, because she can't consider it based on what she said, we are in a position now, no matter, if she gets on and there is a conviction and certainly if there is death we are going to be doing this again. That one person from this.
BILL MCGUIRE: And, Judge if I can respond to that. First off she responded to Your Honor's questions. She could consider all the verdicts. There was one verdict she had a problem with. She said that she would have concern not knowing the results of it but she never said that is a verdict that I can't consider. She never said that.
RICK HUBBARD: No, she said she needed that information in order to make that determination. So that is, the way I read that, Judge, is she can't make that determination without information that Your Honor even said you can't give her. So that is the problem, that is the problem. And this is the first Juror that has happened to. But, Judge, we went down that road for, we have so far with other jurors, that is why I think, I would like it scaled back to keep jurors, the other jurors when we are talking to them that their focus on the two options that you gave. Because as you stated it, you had her on course, just like all these jurors. There is only two options when you get to that second phase. That first phase, you have got four, potential four options. But by walking down this road and why they wanted to do it with this Juror, I don't know but they did. And now here is where we are.
THE COURT: Okay. I have heard enough.
BILL MCGUIRE: Let me just say one more thing and I will be through.
THE COURT: You missed all of that stuff Friday afternoon late.
BILL MCGUIRE: Was it about brevity.
THE COURT: Yes, it was.
BILL MCGUIRE: That was a bad lecture for me to miss.
JUROR: good way to look at this would be, what if a Juror said, well, so all twelve death, all twelve life, we know what happens, what happens if we, what if we don't agree, we have a non-unanimous jury. What happens then.
THE COURT: You are bringing up something we have not even discussed.
BILL MCGUIRE: I am saying that is a good way to look at it.
THE COURT: No, it is not.
BILL MCGUIRE: Well, because that person would always be eligible to serve and would always be qualified even if they had that concern just like this Juror.
THE COURT: All right. I agree that both of y'all have concerns. Bring her back in, please.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Ms. Prasad, I and the lawyers have been talking and of the answers and questions that I did not give you an explanation of what would happen on all four potential verdicts and haven't done that to the other jurors either. You ask very good questions.
JUROR: That's my job.
THE COURT: Well, since I can't answer your question and that is a big concern of you being able to go forward and make a decision I am going to excuse you from jury service and let you go and thank you for your help and thank you for your patience.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I excused her because I couldn't answer her question.
(Whereupon, a bench conference was held.)
THE COURT: Are y'all ready to go to the next panel.
RICK HUBBARD: Are they here.
THE COURT: Yes.
BILL MCGUIRE: Judge, can we put our objection on the record?
THE COURT: You may.
BILL MCGUIRE: Your Honor, with this Juror we believe that her answers qualified her. She is very logical, rational, expressed a concern not knowing what would happen as a result of the NGRI verdict. She was having concerns in this case and just having concerns doesn't disqualify somebody. And we would just cite back to the cases--
THE COURT: Poindexter and all of that.
BILL MCGUIRE: And I cited them earlier before she was excused. Just for the record we object to you excusing her.
THE COURT: I understand. I took the safe way on that one. So, I understand. Let's bring the next panel. (Whereupon, Juror 249, Sharon Lindler; 254, Jeffrey Long; 19, Emily Atkins; 241, Toshia Latimer Addison; 10, Edgardo Alvira; 363 Johnny Rowell; 273, Gail Massaro; 496, Antonio Wright came into the courtroom.)
THE COURT: All right, folks, good afternoon, sorry for the few minutes delay but we are moving a little quicker today. And so it has been a little better organized hopefully because of my better efficiency. A couple of things for you. We will place you under momentarily as a group. Go ahead and do that right now, Madam Clerk.
(WHEREUPON, the jury was sworn at 3:15 p.m.)
THE COURT: I am going to read you a statement of criminal procedure, a little bit of criminal law, a little bit of the aspects of a Capital case and then send you back in the jury room and call you back in one at a time. While y'all are back in the jury room I don't want you talking about the case. Y'all know a little bit about it because I read some of it to you Monday. But you need not discuss that back in the jury room when you come in. Before you come in the Bailiff will give you a list of potential witnesses, not all will be called at trial but could be. Also another sheet where it describes three type of jurors and I want you to review that before you come in. Understanding you are under oath, what you will be asked today is more or less your personal beliefs and opinions which is no wrong answers, just candid and honest answers is what I am looking for.
And I need to know a little bit about your availabiity and any impact of a personal vacation already paid for or graduation or big project, something like that, for availability purposes I will ask you that when I bring you back in. So I will read this statement and send you back and call you in one at a time. You have been summoned as a potential Juror in the case of the State versus Timothy R. Jones, Jr. My name is Judge Eugene Griffith, Jr. and I will be the presiding Judge in this trial. Mr. Jones is charged with five counts of murder. And in South Carolina murder is defined as the killing of any 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. 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 entire trial a person accused with a crime is always presumed innocent of each element of the crime which he is charged. The State must prove each and every element of the crime charged by a standard of proof called beyond a reasonable doubt. In most criminal cases Judges determine the punishment upon a conviction. But in a Capital penalty case the jury determines the punishment. In a Capital case the trial is divided in two parts potentially. The guilt or innocence phase which will be the first part then if necessary phase two which will be the punishment phase. The first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If the jury finds an accused guilty of murder then the trial proceeds to the second phase.
In the second phase, if the State proves statutory aggravating circumstances beyond a reasonable doubt then the jury considers aggravating and mitigating evidence in deciding the punishment, whether it be either, one of two, life without the possibility of parole or the death penalty. 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 at least one of the statuary aggravating factors beyond a reasonable doubt. 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 which 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 a life without possibility of parole sentence then the sentence will be imposed just that, life without the possibility of parole. 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 in this trial. I will instruct you as to how to consider and evaluate the 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.
Until the testimony and evidence is presented I am not able to tell you exactly what the instructions I will give you. But can you, let me ask this question. Can you accept an oath to meaningfully consider all the testimony and evidence, apply as the law as I instruct it to you and consider all evidence consistent with my instructions on the law. Y'all will be asked that when you come back. So those are my preliminary instructions, procedure and a little bit of law along with I want y'all to study the witness list, types of jurors as well as personal things on your calendar. Step back in the jury room and don't discuss the case and the facts and I will get you back here one at a time. (Whereupon, the jurors were excused from the courtroom.)
THE COURT: Bring in number 249. (Whereupon, Juror 249, Sharon Lindler came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Lindler.
JUROR: Hi.
THE COURT: My name is Eugene Griffith again. You are under oath, we want candid responses, your personal opinions, personal beliefs. It is fine to have an opinion, we just need to know it. So I will ask you several things. First and foremost, did you have anyone try to communicate with you, did you talk to anybody about the case since Monday?
JUROR: No.
THE COURT: Did anybody ask you about the case?
JUROR: No.
THE COURT: Now, there was a great deal of publicity before Monday. I gave you some facts in the indictments when I read the accusation made by the State of the five murders. Has anything you have heard, where ever it is, four years ago, two years ago, a week ago, my comments. Have any of those things you heard, whether it be through publicity or from my comments, from any source whatsoever caused you to form an opinion about what happened in this case?
JUROR: No.
THE COURT: No opinion. Now, I gave you a list of potential jurors, did you review that list?
JUROR: I did.
THE COURT: Did you know any folks on that list?
JUROR: One name I recognized.
THE COURT: Who would that be?
JUROR: Mary Beth Hill.
THE COURT: Ms. Hill?
JUROR: Yes.
THE COURT: And you are friends with her or somebody--
JUROR: I am not friends. Her daughter and my daughter were friends in school.
THE COURT: Your daughters are friends to some degree?
JUROR: I am sorry?
THE COURT: To some degree your daughter and she are friends?
JUROR: Back in the '90's, it hasn't been recent. She graduated in '05 so it has been a long time.
THE COURT: Your daughter's friendship with her, would that create an issue for you to be fair and impartial though she is a potential witness?
JUROR: Oh, no.
THE COURT: Very well. Now, Ma'am, do you have anything on the horizon, on the calendar that this, if you were selected as a Juror that that would impact some personal plans or obligations you already have?
JUROR: No.
THE COURT: Okay. So if you were selected potentially you could serve?
JUROR: Yes.
THE COURT: Very good. Now, the lawyers has represented to me to ask this question. This subject matter or this case involves the death of some children. The subject matter is difficult, it is unpleasant and perhaps graphic and harsh. I don't want to represent to you that it is going to be easy. It is not. Would the subject matter of that type make it difficult for you to be fair and impartial to both the State and the Defense?
JUROR: I wouldn't have too much a problem with it, no.
THE COURT: Okay. You could do that?
JUROR: Yes, I could.
THE COURT: Now, understanding my instructions I gave you earlier on the aspects of the Capital case and how it is in two phases, there is the guilt or innocence phase. The jury has got to reach a verdict in that phase in order to be entitled to go to phase two. So if it is a not guilty verdict in phase one the case ends. If the State proves its case beyond a reasonable doubt it goes into phase two, then it goes into phase two which is the punishment phase. In the punishment phase, there is two options. The jury imposes punishment, one being life and one being death. No in between, no other choices. I gave you a summary, a little short paragraph summary of three types of potential jurors just asking a question that if it were a Capital case, if the State proves its case of murder beyond a reasonable doubt and we are in phase two, you consider aggravating and mitigating circumstances then and the State has prove the aggravating factor beyond a reasonable doubt. Can you describe yourself and find yourself as one of those three types of jurors?
JUROR: Number three.
THE COURT: Number three. And that number three is a type of Juror who would want to hear more and all of the evidence, facts and circumstances before imposing either sentence.
JUROR: Correct.
THE COURT: Does that describe you?
JUROR: Yes.
THE COURT: All right. Now, I am going to go back to phase one and get some more aspects of the law that potentially that you could hear because that is my job is to instruct you on the law as to the law of South Carolina states that, requires this. It imposes a duty for the State to prove its case, presumed Mr. Jones -- that's what I do is to instruct on the evidence and the law. Now, if this case, when it goes to trial the State has got to prove the murder first. They have got to prove the elements of murder, the killing of another of malice beyond a reasonable doubt. Now, also in that phase there are some defenses available to people accused. There are several statutory defenses and I am going to read most of them to you. Potential defenses include identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Considering those are potential defenses can you give meaningful consideration to any and all of those defenses if they are so presented by the Defense and instructed by the Court and also consider the State's burden of proof beyond a reasonable doubt of the elements of the murder that they are indicting and charging, accusing in this case. Can you give meaningful consideration to all of those factors, the elements of the crime as well as any potential defenses and the Court's instruction and make a fair and impartial Juror in this case?
JUROR: Yes, sir.
THE COURT: If the State fails to meet its burden of proof and does not prove it case beyond a reasonable doubt the case ends. In this case because Mr. Jones has claimed one of the defenses and has entered that plea there are four potential verdicts that could be reached by the jury in phase one. There is guilty, guilty but mentally ill, not guilty by reason of insanity and then not guilty at all. Can you give meaningful consideration to any and all of those potential verdict forms in this case, considering my instructions on the law, as to how those two aspects of the law were to work, apply and find facts and evidence which has been presented to you and be fair and impartial in that phase of the case?
JUROR: Yes.
THE COURT: So you can consider my instructions, testimony and evidence presented and be fair and impartial to both the State and Mr. Jones?
JUROR: Yes.
THE COURT: Now, if the case goes from phase one into phase two and there is a guilty verdict found. At that time the State has then got to prove statutory aggravating factors. There are several and I will name off a couple. Murder of a police, rape of a murder, kidnapping of a murder, murder of a child, murder of multiple people. Those are aggravating factors. The State is required to prove at least one of those factors beyond a reasonable doubt to a jury to be allowed to ask for the death penalty. That is in sentencing, phase two. During that phase the Defendant is also allowed to present mitigating factors and mitigating evidence which are reasons to impose the life sentence. Do you understand that mitigating circumstances by statute are allowed as follows. 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 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 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. Those are statutory mitigators and there are also others. How he was raised up, did he come from a broken home, have a hard childhood. Those sort of things are also mitigating factors that jurors consider. Can you meaningfully consider any aggravating factor testimony, the State has got to prove an aggravating factor beyond a reasonable doubt. And likewise consider any mitigating evidence, reason to give a life sentence, give meaningful consideration to all of that testimony. Also apply the law as I instruct it and find a sentence consistent with my instructions on evaluating the testimony and evidence you have heard. Can you do that?
JUROR: Yes.
THE COURT: Now, you understand during the sentencing portion there are only two choices. There is no middle ground. Now the death penalty is not automatic. When it gets to the sentencing after guilt if proven the death penalty is not automatic. The State has got to prove the aggravating factor and the jury has got to consider any mitigating evidence. Two sentences, life without parole or death. Do you understand that?
JUROR: Yes, sir.
THE COURT: So if a jury were to unanimously find for life without parole the life without parole sentence will be imposed. Likewise if the jury unanimously finds that death is the appropriate punishment then the death penalty would be carried out. Do you understand?
JUROR: Yes, sir.
THE COURT: Do you have any reason, moral, personal, religious belief that would prevent you from finding the death penalty?
JUROR: No.
THE COURT: Do you have any religious, moral or personal reason or belief that you could not find a sentence of life without parole?
JUROR: No.
THE COURT: You could do that also?
JUROR: Right.
THE COURT: You know any reason whatsoever you couldn't be a fair and impartial Juror in this case?
JUROR: No.
THE COURT: Mr. Secor. EXAMINATION.
By Mr. Secor:
CASEY SECOR: Ms. Lindler, how are you?
JUROR: Hi, fine.
CASEY SECOR: I just want to ask you some questions, if I may. And the Judge was talking to you about you are going to be fair and impartial and follow the law. I want to talk to you about how you feel personally based on your life experience. And I don't want you to be constrained by the idea of trying to say I would follow the law. I just want to know how you feel. Is that okay with you?
JUROR: Sure.
CASEY SECOR: As the Judge said, this case involves the possibility of a verdict of not guilty by reason of insanity. That is the plea that has been entered. And did you know that when someone makes a plea of not guilty by reason of insanity that means that they are saying that they did the act in question, meaning in the case that they are charged with murder, they are saying I did the killing. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: They are saying that because of a mental disease or defect prevented me from knowing right from wrong, I am therefore not culpable in the way that a sane person would be?
JUROR: Right.
CASEY SECOR: Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Okay. And some people feel like that kind of a plea is just sort of an excuse or a copout. Is that you. Is that how you feel about that plea?
JUROR: No.
CASEY SECOR: So you would seem like, a legitimate plea to enter?
JUROR: Yes.
CASEY SECOR: You are open to that?
JUROR: Yes.
CASEY SECOR: Okay. Thank you. Let me just go back quickly and forgive me if I have asked this. Did you say you never heard anything about this case even in 2014 when it first happened?
JUROR: I honestly do not remember much about it, I was going through a -- I was preoccupied at that time.
CASEY SECOR: Yes, ma'am.
JUROR: And I remember just bits and pieces but no details about it.
CASEY SECOR: That's fine. And do you remember any feelings, emotions, reactions you had at all?
JUROR: No, I hated to hear something like that happened but, you know, I didn't, I am not one that listens to the news and I did not, I just kind of remember it happening but I don't know any of the details about it.
CASEY SECOR: Okay. I want to talk to you now about your feelings about punishment for a guilty murderer. Okay. So I want you to think a person who has gone to trial and has been proven guilty beyond a reasonable doubt, unanimously, there is no question about it. And as the Judge told you, murder means the malicious killing of a innocent person. So it would mean a person that knew right from wrong, who had no excuse, justification or defense and maliciously killed multiple children. That is the situation that we are talking about. And knowing that there are two options for sentencing for somebody who would be convicted of that, what I am interested in knowing, just based on that, when you know somebody is absolutely guilty of that, what are your feelings about the death penalty as the appropriate penalty for that guilty murderer.
JUROR: If it is proven that it was just hateful, meanness and, I could see myself going towards the death penalty. But if they were mentally unstable then I would lean for life.
CASEY SECOR: Yes, ma'am. I understand. And I want to make sure I am clear. If you were to find the person not guilty by reason of insanity there would be no penalty phase. Does that make sense?
JUROR: Okay. Yes.
CASEY SECOR: So if you found a person not guilty or if you found them not guilty by reason of insanity the trial ends.
JUROR: Okay.
CASEY SECOR: It is only if they are found guilty that we go to the second phase.
JUROR: Right, right. I understand that.
CASEY SECOR: So if you found a person guilty, so you would address the issue, insanity, and said he is not insane. All the jurors say he is not insane, he is guilty of murder, malicious killing of innocent children. At that point how do you feel, just you, how do you feel about the death penalty as the appropriate punishment.
SUZANNE MAYES: Your Honor, I believe this question has been asked and answered with the previous question.
THE COURT: I will let her answer but I agree with you, very similar to the prior question so I am going to overrule and let her answer this one time or the second time.
JUROR: I have never thought about the death penalty before. I have never been placed in the predicament where I would have to choose anything like that. It would be hard for me to impose a death penalty but in certain circumstances I could see myself doing that.
CASEY SECOR: Are there any circumstances for you where you think it should be automatic?
JUROR: No. I wouldn't think it would be an automatic thing, no.
CASEY SECOR: And for you and fixing punishment for a guilty murder, does the person's character, background, their walk in life, where they came from, does that stuff matter to how they are punished to you?
JUROR: Yes, it does to me.
CASEY SECOR: And I appreciate that. And I know these are hard questions and I don't mean to give you a hard time. But and don't let me put words into your mouth but it sounds to me like you think the death penalty does serve a purpose in society. Is that fair to say?
JUROR: Yes, it does. In certain circumstances, yes.
CASEY SECOR: I want to go through some principles of law that govern the penalty phase in these types of cases. Okay. Again, the penalty phase being the person was already found guilty and they know they did it, we are at the point where you are accessing whether they are going to live or die. Did you know that in South Carolina the death penalty is never required in any case?
JUROR: No.
CASEY SECOR: That is the case in South Carolina and the entire United States. There is no case for which the death penalty is required, meaning the law is satisfied with a sentence of life without parole in any case, the worst case you can possibly imagine. Does that seem reasonable to you?
JUROR: Yes.
CASEY SECOR: Does that seem like the way it should be?
JUROR: Yes.
CASEY SECOR: And the way that a Juror goes about accessing the determination of life or death is, as the Judge told you, between aggravating circumstances and mitigating circumstances. Aggravating circumstances are things that the State has to prove beyond a reasonable doubt to the entire jury. And there are things that the State suggest are reasons for a sentence of death. Does that make sense?
JUROR: Yes.
CASEY SECOR: Okay. And the other side is mitigating circumstances. Mitigation is any reason to vote for life. Does that sound reasonable to you?
JUROR: Yes.
CASEY SECOR: All right. And mitigation, it is important that I tell you, mitigation is not an excuse or a justification. As we talked about, it could be completely unrelated to the murders that you found a person guilty of, right?
JUROR: Right.
CASEY SECOR: And mitigation also doesn't have to be proven beyond a reasonable doubt and it doesn't have to be proven unanimously. And that is because the law says that a Juror can vote for life for any reason, no reason or based on mercy alone. And any reason would be like the things we were talking about, mitigating factors that a Juror finds. And one Juror might find, they say it is mitigating to me that the person had a good relationship with their father. I am going to choose that to vote for life. Another Juror might say, well, I didn't see that but I thought he had some mental health problems, for me that is mitigating, I am going to vote for life. They don't have to agree, they can have their own reasons. And you could respect each jurors authority and right to find their own mitigation?
JUROR: Yes.
CASEY SECOR: Okay. And a Juror also has the right to vote for life for no reason and you could respect a Juror that said, I have heard everything, I have considered everything, I can't say exactly what it is, I can't put it into words but for me in this case the right sentence is life without parole. You could respect a juror's right to do that?
JUROR: I could.
CASEY SECOR: And lastly, a Juror is always empowered to give life for mercy and if you saw a Juror who said, I have heard everything, I have considered everything and I have just decided to give mercy in this case and that is my decision and I am giving life for mercy. And you could respect a juror's right to do that, right?
JUROR: Yes.
CASEY SECOR: The ultimate decision in whether a Juror decides whether another human being lives or dies is based on the juror's individual moral judgment. That comes from your moral compass, your sense of right from wrong, your walk in life. Does that make sense?
JUROR: Yes.
CASEY SECOR: And I assume you would agree that there are people that make moral decisions that are different from yours but you respect the fact that they have the right to make moral decisions for themselves.
JUROR: Sure.
CASEY SECOR: Likewise you expect people to respect the moral decisions that you make for yourself?
JUROR: Right.
CASEY SECOR: And the same is true and the law required the same in the penalty phase deliberations of a Capital case that peoples individual moral judgments be respected. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: And once a Juror arrives at their individual moral judgment on penalty it would be unlawful for them to be bullied or pressured to change their individual moral judgment. Do you agree that that is the way that it should be?
JUROR: Could you repeat that?
CASEY SECOR: Yes, ma'am.
JUROR: I just want to make sure I understand what you are saying.
CASEY SECOR: My fault. It was probably not very well said. In the penalty phase the decision, each juror's decision on life or death has to be their own individual moral judgment?
JUROR: Yes.
CASEY SECOR: And once a person arrives at their individual moral judgment they say, I have arrived at my individual moral judgment and it is life?
JUROR: Right.
CASEY SECOR: It would be illegal for them to be bullied or pressured or coerced out of that individual moral judgment?
JUROR: Correct.
CASEY SECOR: Does that make sense?
JUROR: Yes, it does.
CASEY SECOR: And if you saw that happening to somebody you could bring it to the Judge's attention and say, somebody is being pressured or bullied, this is improper?
JUROR: Correct.
CASEY SECOR: Okay. Do you have any idea if you know anybody who has been called for jury duty or seen anybody that you know coming to the Court House?
JUROR: From last Monday?
CASEY SECOR: Yes, ma'am.
JUROR: Yes, I did know of two people.
CASEY SECOR: Just from church or--
JUROR: One I worked with and the other is just like a friend of a friend.
CASEY SECOR: Okay. Thank you. Subject to the Court's prior rulings I will stop now. Thank you.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Ms. Lindler.
JUROR: Hi.
SUZANNE MAYES: My name is Suzanne Mayes, I am one of the prosecuting attorneys in this case. I am just going to have a couple of questions for you mainly to just follow-up on some of the questions that you just answered.
JUROR: Okay.
SUZANNE MAYES: One of the questions that you got asked was about your views on the death penalty and you said you had never really thought about it before.
JUROR: That's true.
SUZANNE MAYES: So until you came in or until you came in last Monday and found out that this was, in fact, a death penalty case did you have any views on the death penalty?
JUROR: I haven't thought a whole lot about it. I realize that I would probably be asked that question. And I have thought some about it, I guess I could, I would just have to listen before I made a decision. I can't say if I would say yes, I could go with the death penalty until I heard the case. I couldn't make a decision, I can't.
SUZANNE MAYES: So let me follow-up a little bit more on that then. When the Judge spoke to you about the three types of jurors and you said you were Juror number three. Juror number three is a Juror that can give either life or the death penalty?
JUROR: Right.
SUZANNE MAYES: Juror number two is a Juror that just doesn't feel comfortable with the death penalty at all. So I want you to take a moment and think about that so that you can distinguish which one you may actually be.
JUROR: I would admit it would be hard to give a death penalty but if it was without any other circumstances and the person just seemed hateful and intent on doing that with, I could see myself maybe choosing that.
SUZANNE MAYES: Okay. And I need to follow-up a little bit more.
JUROR: I know, I am still indecisive on it because it would be taken someones life is, would be a hard thing to do.
SUZANNE MAYES: And so that is why I want to follow-up a little bit more. Because now we are at the stage where you kind of can't be in between.
JUROR: I know, I understand.
SUZANNE MAYES: You are indecisive.
JUROR: I understand. I just feel like after I listen to the case and I would just know better.
SUZANNE MAYES: But you don't know for sure if you could actually vote for the death penalty--
JUROR: I could if I had enough to point to that direction. I mean, I could possibly choose that.
SUZANNE MAYES: You could possibly choose that?
JUROR: Yes, I could.
SUZANNE MAYES: Another question now I want to follow-up on is when we talk about potential verdicts being life or the death penalty, the death penalty, if you are number three as opposed to Juror type number two, the death penalty would be something that you don't just consider but you would actually have to be able to do if you found that to be appropriate. So you would actually have to render a vote for it. Does that make sense?
JUROR: Yes.
SUZANNE MAYES: So in addition to that, if a jury were to determine at that final stage that the death penalty was appropriate and it was a unanimous decision among jurors, every Juror would then have to sign what would be termed the death verdict acknowledging your name and by signing that you are acknowledging the sentence of death. Can you state with complete certainty that you are capable of rendering that vote if the circumstances warranted it?
JUROR: Yes.
SUZANNE MAYES: You could sign your name to that?
JUROR: Yes.
SUZANNE MAYES: Now, one of the questions that you were asked earlier was about considering evidence of insanity or mental illness, things of that nature. You stated that you could consider that type of evidence. If the State potentially were to offer evidence to the contrary would you be able to give that equal weight and consideration?
JUROR: Yes.
SUZANNE MAYES: To the contrary?
JUROR: Yes.
SUZANNE MAYES: Another thing I wrote down is when defense counsel asked you if the death penalty served a purpose in society you said that, yes, it does, in certain circumstances.
JUROR: Yes.
SUZANNE MAYES: So do you agree that the law should be to have the death penalty or would you prefer laws where the death penalty couldn't be imposed at all?
JUROR: I can see reasons to have the death penalty, yes.
SUZANNE MAYES: So you would be in favor of keeping the law exactly as it is now where the death penalty is one of the options?
JUROR: Yes.
SUZANNE MAYES: In certain cases?
JUROR: Yes.
SUZANNE MAYES: And then about your response where you said, yes, you would consider the death penalty, even vote for the death penalty in certain circumstances. Are there other cases that you have seen or you recall historically, whether in this State or across the Nation, where you found that those circumstances existed?
JUROR: Yes.
SUZANNE MAYES: What are some of those cases?
JUROR: You just want me to name a case that I can, Pee Wee Gaskins.
SUZANNE MAYES: That is a case you remember historically right here in South Carolina?
JUROR: Right.
SUZANNE MAYES: And that is the case you knew of and felt that the death penalty was appropriate in that case?
JUROR: I did.
SUZANNE MAYES: Thank you, Ms. Lindler.
THE COURT: Anything further, Mr. Secor?
CASEY SECOR: No, sir.
THE COURT: Anybody want to be heard on her?
RICK HUBBARD: No sir, Your Honor.
THE COURT: Ms. Lindler, the Court will find you, based upon the questionnaire and the questions and answers today, to be a qualified Juror. That doesn't mean you are on the jury, it means you are qualified to be selected. Now, you are number 249 and so I am going to tell you, you are still going to remain under oath until you come back and that oath goes with you. You are not allowed to talk about the case with anyone. You are not allowed to answer questions about the case to anyone. I am directing you to not do any independent research, social media, internet or otherwise. What you need to decide the case you will be getting here. Along with the other jurors, you all will get at the same time under the court record, the Judge, here in the courtroom, everybody presented. Things outside of the courtroom are not relevant to the proof required by the State and the Defense in this case. You decide it here. I want you to hear it here. I don't want you deciding it before you come back in because I asked you, have you formed an opinion and you said no. When you come back in that is how I want you to remain. Now, I understand the publicity, I want you to minimize your contact with that publicity and come back in here, that is to all the jurors, has anything happened, run across something which would cause you now to have already formed an opinion. And so I don't want, I want you to be able to answer that question honestly, I don't need you to go out and form opinions. Now, can you go on the internet?
JUROR: Yes, I can.
THE COURT: Go on the website and go under qualified jurors. It will say, qualified jurors please look, back tomorrow, come back tomorrow night and check again. Finally it is going to say, please report to this courtroom at such and such time on such and such date. That is when I will see you again and until that time enjoy yourself. Thank you.
JUROR: All right. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are y'all ready for Mr. Jeffrey Long.
BILL MCGUIRE: Your Honor, can I have Joy to mark this, this is Ms. Prasad's jury questionnaire, if I could mark as a Court's exhibit.
COURT REPORTER: This will be number 73. (Whereupon, Court's Exhibit 73 was marked for identification only.)
BILL MCGUIRE: Number 73. And my argument, Judge, that Ms. Prasad was far more qualified on the issue of NGRI than at least three white Christian men were on considering the verdict of life without parole. And I do believe that their argument is pretext, it is truly really based on the fact she is South Asian. Thank you.
RICK HUBBARD: Your Honor, it is not every day I get called a racist. But I am going to tell you, there is absolutely no place for that here. And she gave an answer and I have the duty as an administer of justice to stand up whether he likes it or not. And to be called a bigot in a courtroom is offensive.
BOYD YOUNG: Judge, in fairness, I need to respond to that. It is sort of a fundamental misunderstanding when we say somebody could be stricken for their race, it doesn't necessarily mean somebody is racist. For instance, there is a prosecutor who I am friends with down in Beaufort who says I am Batson proof because I let my lead detective pick my jury, he is an African American male. And I told him, no, I am sure he is not racist but you might also strike some black folks because who doesn't think they are good jurors and the reason could be race. So my allegation is not that Mr. Hubbard, himself, is racist but he might have a view that this person's background and religion would affect their deliberations and decision making process. I don't mean anything offensive by it--
THE COURT: Well, I mean here is what, I guess, bothers me is that issue was not discussed factually by anyone when she was being presented, no one did.
BILL MCGUIRE: I know, that's my fault.
THE COURT: The question was all about a response that she said, I would like to know the answer to this question. We can't answer that. And she was very articulate and logical and linear in her thinking. I was very impressed with her.
BILL MCGUIRE: She was very rationale and very logical, I agree with that. That is why we thought she was a good Juror. She, herself, is an expert in her field in insurance. And we thought she would give great weight, her testimony, which is, of course, that is what our defense is.
THE COURT: Why would you bring up race when that was not even--
BILL MCGUIRE: I gave it some thought when I knew that all of her answers taken as a whole might have her leaning slightly towards the State as a favorable Juror to them, I kept racking my brain, well I don't understand why they would be trying to strike her. And then I reread her questionnaire and it occurred to me late, that is my fault, I am sorry. I apologize.
THE COURT: Well, I mean, did you miss her testifying?
BILL MCGUIRE: I am sorry?
THE COURT: Did you miss her testifying?
BILL MCGUIRE: No, sir.
THE COURT: Then why did you read the questionnaire to decide what race she was.
BILL MCGUIRE: No, no, no. When I went through her questionnaire again and I was looking over everything and I was trying to think, why would the State strike somebody. I am sorry, why would the State, I misspoke. Why would the State try to keep a Juror on when, let me, I misspoke again. She, the State tried to have her declared not qualified. They wanted to get rid of her and when all of her answers are taken as a whole, I agree with Your Honor, she is very smart, rational, likable and her answers taken as a whole can actually be interpreted as leaning towards the State, an ideal Juror for them. There is some principles that she really didn't agree with that would be favorable to us. So I was racking my brain, why would he try to get rid of her, why were they trying to get rid of her. Now, we thought she would be very good for expert testimony, she is an expert herself. That is where we are putting a lot of weight on. And then I reread the fact that she is Hindu and it makes sense, maybe that is it. I apologize for bringing it up late.
THE COURT: I don't think the State presented any indication race or religion that impacted their, the sole argument presented to me was, what was presented. I can understand Mr. Hubbard is taking offense to it because I didn't feel any of that. I mean,--
BILL MCGUIRE: It was not discussed, it didn't come up but it is information that we have knowledge of. And I was puzzled why they were trying to have her disqualified when her answers seemed very favorable to the State. And then they say things like, Judge, if you put her on, if you qualify her this whole case is going to get reversed. It is actually not true. If we are advocating that she be qualified and you find her so qualified we can't be heard at all. So there is no reversal issue there and they kept telling Your Honor, Judge, you know, if you make this mistake this case is coming back, the whole thing is getting reversed. That is not true. So that is my--
THE COURT: Y'all are making that same argument from time to time.
BILL MCGUIRE: When it is accurate.
THE COURT: Well then, quit blaming them for arguing the law too.
BILL MCGUIRE: I am not.
THE COURT: Sit down, I have heard enough.
BILL MCGUIRE: All right. Thank you.
THE COURT: Bring the next Juror in.
RICK HUBBARD: Just for the record, Your Honor ruled with me and it was on law which is what my objection was on.
THE COURT: And the Court will also state, I did not, could not, did not create a curative question or instruction. I did not create that at that time and that was a basis also for my excusing her is I couldn't figure a way to cure that question because it is a difficult question. And I told y'all, I am working on it. (Whereupon, Juror 254, Jeffrey Long entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Mr. Long.
JUROR: How is it going.
THE COURT: How are you doing?
JUROR: I am pretty good.
THE COURT: You are under oath still since Monday. And I will go back to my Monday instructions to you. Have you talked to anybody about the case since Monday?
JUROR: No, sir.
THE COURT: Okay. Anybody try to talk to you about the case since Monday?
JUROR: No, sir.
THE COURT: There has been a lot of facts presented Monday by the Court, I read the indictments. There are other publicity out there, four years ago, a few months ago, this week, all sort of publicity. Any information out there, under the Court, from where ever source you might have gotten it, have you formed an opinion based upon any of that that those facts and circumstances, reading the indictments, did you form an opinion as to what happened in this case already?
JUROR: No, sir.
THE COURT: No opinion whatsoever?
JUROR: No, sir.
THE COURT: Now, asked about your work, personal schedule. What have you got upcoming through the end of May, early June, the first week of June or so that would be extreme hardship for you to reschedule like a prepaid vacation or something along those lines or medical procedure you have got scheduled. What have you got on your agenda?
JUROR: Just a dentist appointment, I can reschedule that.
THE COURT: It is just a regular dentist appointment?
JUROR: A tooth.
THE COURT: Perhaps we can work around that, depending on the scheduling. All right. So nothing big on your schedule.
JUROR: No.
THE COURT: Did you look over the potential witnesses?
JUROR: Yes, sir.
THE COURT: A lengthy list. The parties are required to tell me all potential witnesses and likely not to call all of them. If they don't tell potential witnesses then the Juror or Court, somebody half way through the trial will go, I know that person and then that creates an issue of being fair and impartial. What I don't want is somebody you are connected to, to any of the jurors, to me, that would create an issue to be fair and impartial. Nobody is connecting to you whatsoever?
JUROR: No, sir.
THE COURT: Did you understand my instructions I gave you thirty minutes ago or so on the aspects of criminal procedure, Capital case that is being in two phases. Did you understand all of that?
JUROR: Yes, sir.
THE COURT: Do you understand that the case will proceed in two phases. The first phase is guilt or innocence and then if necessary the second phase which will be the punishment phase. There are two options, life and death, only two options available to the jurors. Do you understand that?
JUROR: Yes, sir.
THE COURT: And you understand the testimony in this case involves the death of several children. The testimony will be graphic, harsh, unpleasant and difficult, not an easy thing to talk about or see or hear. Would the subject matter of that type, of this difficult testimony, unpleasant, create an issue for you being fair and impartial to both the State and Defense or can you consider for what it is?
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: You can be fair and impartial to both?
JUROR: Yes, sir.
THE COURT: Now, we get to the second phase, the sentencing phase. So I am presuming a verdict of guilty has been found. Mr. Jones is presumed innocent, so nothing has been proven. You have very little facts, other than what I read to you Monday, the accusations of five murders. Do you understand?
JUROR: Yes, sir.
THE COURT: Just assuming those facts, the State proves guilt beyond a reasonable doubt, we go into phase two. The jurors consider an aggravator factor as the State can prove and, or mitigating factors are shown to you. Mitigating factors are reasons to not impose the death penalty. Did you read the three types of potential jurors, that little summary of the three types of jurors?
JUROR: Yes, sir.
THE COURT: Can you identify yourself as any one of those three types?
JUROR: Type three.
THE COURT: Type three. And that means, the way I think it is drafted is that you are the type of person if the State has proven the guilt of the murder, then understand the law requires the State to prove an aggravating factor and then will consider any and all mitigating factors that are presented and make a fair verdict, determination of life or death at that time.
JUROR: Yes, sir.
THE COURT: Does that describe you?
JUROR: Yes, sir.
THE COURT: Now, understand this, in the first phase, going back to phase one, guilt or innocence. Their defenses which people accused of crimes can claim on murder, I am going to read those to you quickly. And I will tell you now, all of them won't be instructed, some, one has plead, the not guilty by reason of insanity is one defense that has already been plead. But there may be another defense that may come into play, depending on the testimony. I have heard the testimony but I can't tell you, okay, that defense also will come into play. I don't know because I haven't heard any of the testimony either. So I will tailor my instructions then. I am going to read all the defenses to you right now. Potential defenses, identification, accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are all potential defenses afforded to people under our statutes. Now, understanding those are out there potentially, can you give meaningful consideration to any of the instructions on those potential defenses, consider the testimony presented by the State, testimony and evidence. The State has the burden of proving the elements of murder beyond a reasonable doubt. The defenses would be considered there to, can you consider that testimony and evidence, my instruction of the law and make findings and a verdict consistent with my instructions and the facts and evidence that has been presented in a trial?
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: So it is kind of a long way to ask. Can you be fair and impartial and consider my instructions sitting as a Juror?
JUROR: Yes, sir.
THE COURT: Listen appropriately and meaningful consider?
JUROR: Yes, sir.
THE COURT: You can do that?
JUROR: Yes, sir.
THE COURT: Now, because of the defense entered by Mr. Jones of not guilty by reason of insanity there are four potential verdicts in phase one. There could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Those are four potential verdicts. The Court will instruct on the respective aspects of what that means. Can you give meaningful consideration to each and every one of those four potential verdicts, depending on the facts and testimony presented to you and my instructions and be a fair and impartial Juror?
JUROR: Yes, sir.
THE COURT: Are any one of those four potential verdicts that you could not give meaningful consideration to?
JUROR: No, sir.
THE COURT: All right. If a not guilty verdict, not guilty by reason of insanity is found the case ends. If guilty is proven by the State beyond a reasonable doubt we go to phase two. Phase two is the determination of the punishment. Two choices, life or death, nothing else, no other in between, one of the two. During that time the State has got to prove, in addition to the murder statutory aggravating factor. There are several, I will list them all to you and then come back and ask you a question. Murder of a policeman, rape of murder, kidnapping of murder, murder of a child, multiple murders. Those are potential aggravating factors the State must prove beyond a reasonable doubt. Also during the sentencing phase mitigation circumstance facts are presented. So understanding that certain mitigating factors can be presented, I am going to read off the statutory circumstances which jurors can consider.
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 and his participation was 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 mitigating factors, those are statutory meaning the statute has outlined those, potentially would be, how Mr. Jones grew up, he had a troubled childhood or a broken home, whatever aspects of his walk in life. Jurors can consider that as a mitigating factor. Thus understanding in the sentencing portion of the trial can you give meaningful consideration to the testimony and evidence of the aggravating factors which the State has got to prove beyond a reasonable doubt and any mitigation circumstances and evidence which are reasons to vote for life, whether they be statutory or just non-statutory. Can you give meaningful consideration to all of that testimony and then consider my instructions on the law, give consideration to the testimony and apply that law as instructed and be a fair and impartial Juror in this case?
JUROR: Yes, sir.
THE COURT: Now, you understand the death penalty is not automatic.
JUROR: Yes, sir.
THE COURT: If twelve jurors vote unanimously for the death penalty all twelve jurors must sign the verdict on the sentencing phase?
JUROR: Yes, sir.
THE COURT: And if twelve jurors unanimously vote for a life without the possibility of parole that sentence is carried out. Do you understand?
JUROR: Yes, sir.
THE COURT: Do you have any religious or moral or personal belief which would prevent you from imposing the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal belief which would prevent you from imposing a life without the possibility of parole sentence?
JUROR: No, sir.
THE COURT: All right, Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Long.
JUROR: How is it going.
BOYD YOUNG: It is going all right. Thank you for your patience with us in this process. Now is my opportunity to just sort of have a conversation with you about your opinions. Okay.
JUROR: All right.
BOYD YOUNG: Fair enough?
JUROR: Yes.
BOYD YOUNG: So if I am doing all the talking I am doing it wrong. Okay?
JUROR: All right.
BOYD YOUNG: I am trying to hear from you. All right.
JUROR: All right.
BOYD YOUNG: Do you know any of the other jurors who were called in on Monday?
JUROR: No, sir.
BOYD YOUNG: Okay. I want to talk to you a little bit about, the Judge has told you that Tim has plead not guilty by reason of insanity. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And not guilty by reason of insanity in South Carolina means that because of a mental disease or defect a person was not able to understand the legal or moral wrongfulness of their conduct. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: So they don't dispute that they did the act, they did the killing. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: When they say, I didn't know, I couldn't appreciate that it was wrong. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Understanding that, some people say, well, that defense for me is sort of a copout, it is just an excuse, it is not something that I could ever see myself finding in a case like this. How do you feel about it?
JUROR: I know there are people with problems.
BOYD YOUNG: So that is something, if I hear you right and don't let me put any words in your mouth. Okay?
JUROR: All right.
BOYD YOUNG: You think that there are people out there that have problems?
JUROR: Yes.
BOYD YOUNG: Okay. I know you are in a hot seat and you are nervous, none of the cameras are on, nobody can report your name or any of your responses or anything like that. Okay.
JUROR: All right.
BOYD YOUNG: Does that make you feel better?
JUROR: Yes.
BOYD YOUNG: I am going to move on and talk about your views of punishment. Okay.
JUROR: All right.
BOYD YOUNG: Can you tell me a little bit about how you feel, just sort of in general about the death penalty?
JUROR: I know you have to do something pretty bad to get it.
BOYD YOUNG: All right. Well, let me talk to you about it this way. I want to make sure we are talking about the same thing. Okay?
JUROR: All right.
BOYD YOUNG: Let's say you were on a jury and you and eleven other jurors sat through a case. Okay?
JUROR: All right.
BOYD YOUNG: And you and everybody else decided that the Defendant in that case was guilty, guilty of murder. And murder, as the Court has defined it for you, is the intentional killing of another with malice aforethought. Right?
JUROR: All right.
BOYD YOUNG: And the Judge has told you what malice means, evil, wicked, wicked hearted, hatred. Right?
JUROR: Yes.
BOYD YOUNG: Of an innocent person. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: It means it wasn't self-defense, it wasn't an accident, any evidence that the Juror heard about insanity they rejected and they said, no, the Defendant in that case knew what they were doing, they knew the difference between right and wrong and they chose to kill an innocent person. Are you with me so far?
JUROR: Yes, sir.
BOYD YOUNG: All right. And then we have that second trial that the Judge has talked to you about, the penalty trial. Okay. And then in that trial it was proven beyond a reasonable doubt to all the jurors that the Defendant had killed multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And I want ask you, what are your feelings about the appropriateness of the death penalty for that guilty murder?
RICK HUBBARD: Objection, Your Honor, with mitigating as well. It is not a fair question.
BOYD YOUNG: I will rephrase.
THE COURT: Rephrase it, sustained.
BOYD YOUNG: At that point in the trial do you have any feelings about whether or not the death penalty was appropriate prior to hearing from, about mitigation?
JUROR: No.
BOYD YOUNG: Okay. You don't have any leanings one way or the other?
JUROR: No, sir.
BOYD YOUNG: Okay. And you understand what we are talking about, someone has been found guilty of murder?
JUROR: Do what?
BOYD YOUNG: You understand that we are talking about somebody who has already been guilty. So that part is done, right?
JUROR: Yes.
BOYD YOUNG: For that guilty murderer what are your thoughts about, should we have a death penalty or should we not have a death penalty, for people who have been convicted of aggravating murder and you are the Governor for the day, you decide we are going to have the death penalty or not have the death penalty. What would you say?
JUROR: I would say have a death penalty.
BOYD YOUNG: Okay. Can you tell me why?
JUROR: Because there is a lot of killing out there just for no reason.
BOYD YOUNG: Is that sort of a deterrence, is that where you sort of come from?
JUROR: There is people that kill and then they kill again and they want to get out.
BOYD YOUNG: Are there any cases that you think the death penalty is the only appropriate punishment?
RICK HUBBARD: Your Honor, I do object to that.
BOYD YOUNG: Your Honor, this is Ms. Mayes question.
RICK HUBBARD: I object to that question. The only punishment. I think we are going down the wrong road.
THE COURT: Rephrase your question. Y'all both used questions very similar in nature. Try to rephrase it, I think I know what you are trying to, the response. Go ahead.
BOYD YOUNG: Any case out there that you have heard about or just sort in your head where you think the death penalty is the appropriate punishment.
JUROR: Like the O.J. trial, if he was, if he was found guilty then, yes. But he wasn't found guilty.
BOYD YOUNG: Right. Do you think you could have learned anything about O.J. where you say, all right, maybe the death penalty is not the appropriate punishment.
JUROR: Like if it is, like background or something was wrong with him.
BOYD YOUNG: Okay. I understand where you are coming from there. Do you think the death penalty is sort of a punishment of last resort?
JUROR: No.
BOYD YOUNG: Do you think it is sort of reserved for the worst of the worst?
JUROR: Yes.
BOYD YOUNG: Can you tell me your views about whether or not we should take into consideration a person's whole life while in deciding whether or not they live or die?
JUROR: Yes.
BOYD YOUNG: Okay. And that is sort of the background stuff the Judge was talking to you about earlier?
JUROR: Yes.
BOYD YOUNG: I want to talk to you about, I am going to move a little further and talk about how a Juror comes to this decision and what their guidance from the law is. Okay?
JUROR: Okay.
BOYD YOUNG: You understand the Judge has told you the death penalty is not required, never required, it is never automatic. Right?
JUROR: Yes.
BOYD YOUNG: Not in this case, not in any case, not the worst case you could imagine. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: How we get there is through this stuff called mitigation. The Judge told you is the reason to vote for life penalty.
JUROR: Yes.
BOYD YOUNG: And there is no burden of proof, it doesn't have to be unanimous, each Juror finds mitigation for themself. Okay?
JUROR: All right.
BOYD YOUNG: And it can be something that was presented by the Defense, it can be something that was presented by the State. It could have absolutely no bearing on the facts of whether they did it or not did it. Okay. It is something that a Juror sees for themselves. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: And Juror one could say I saw that he had a loving relationship with his father and based on that reason I am going to give that relationship the value of life and I am going to find life for that reason. Do you understand. That is perfectly acceptable?
JUROR: Yes, sir.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And a second Juror could say, well, I didn't see that, I don't think that that is mitigating but for me I thought that he has a mental illness so therefore I am going to give that the value of life. And those two reasons are different but each Juror is allowed to have their own reasons. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: And finally jurors don't have to have a reason to vote for a life penalty. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Can you respect the right of a Juror to say, I don't have a reason but for me the life penalty is right, the appropriate punishment and that is what I am going to vote for. Can you respect that?
JUROR: Yes, sir.
BOYD YOUNG: And then we have this thing called mercy, mercy alone can be a reason to give a life punishment if a Juror feels it is right for them. Okay?
JUROR: Yes, sir.
BOYD YOUNG: And you and yourself, can you tell me about your concept of mercy. Do you think that mercy is something that sort of is freely given or is it something that somebody earns?
JUROR: Something somebody earns.
BOYD YOUNG: And how would somebody go about earning mercy?
JUROR: I don't know.
BOYD YOUNG: Okay. Fair enough. This ultimate decision about whether or not another person lives or dies is called an individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Moral judgments are things that we make every day in our daily lives. Okay?
JUROR: Okay.
BOYD YOUNG: You have made your own decisions about how to raise your child. Is that right?
JUROR: Yes, sir.
BOYD YOUNG: And you understand that other people have made different decisions about how to raise their children.
JUROR: Yes, sir.
BOYD YOUNG: Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Do you, you expect them to respect you in making your own individual moral judgment about that?
JUROR: Yes, sir.
BOYD YOUNG: And you respect their right to make their own individual moral judgment even if it is different than yours.
JUROR: Yes, sir.
BOYD YOUNG: Does that makes sense?
JUROR: Yes.
BOYD YOUNG: And if you saw somebody being bullied or told that their moral judgment was wrong would you stop it?
JUROR: No, I would call the cops.
BOYD YOUNG: I am sorry?
JUROR: If they were doing something wrong I would call the cops.
BOYD YOUNG: Right. Of course. If somebody was doing something wrong to children you would call the cops?
JUROR: Yes.
BOYD YOUNG: But if it was a moral decision like whether or not to have kids or not have kids. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Or how much screen time to give them or no screen time to give them?
JUROR: Yes.
BOYD YOUNG: Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Those types of parental decisions that you make every day, I am not talking about anything that is illegal.
JUROR: Okay.
BOYD YOUNG: And you respect their right to make their choice about that?
JUROR: Yes, sir.
BOYD YOUNG: And you expect them to respect you?
JUROR: Yes.
BOYD YOUNG: And if you saw somebody being bullied and say, you are wrong, your opinion is stupid, would you stop them?
JUROR: No.
BOYD YOUNG: Okay. Why not?
JUROR: Everybody has their own opinions.
BOYD YOUNG: Right and if somebody had said, this is mine, individual moral judgment. This is my opinion and somebody else said your opinion is wrong, your opinion is stupid and you are not entitled to your opinion, would you stop that?
JUROR: No.
BOYD YOUNG: Okay. Why not?
JUROR: They are just debating.
BOYD YOUNG: If it got past sort of civil debate--
JUROR: Like if they fight?
BOYD YOUNG: Yeah, like it came almost to blows?
JUROR: Yes, I would stop it.
BOYD YOUNG: Okay. Would you say, we are entitled to our own opinion?
JUROR: Yes.
BOYD YOUNG: Could you send a note out to the Judge saying things have gotten hostile or disrespective here?
JUROR: Yes.
BOYD YOUNG: Your Honor, based on the Court's limitations I will stop there. Thank you very much, Mr. Long.
THE COURT: Very well. Solicitor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Long, I am Rick Hubbard, how are you?
JUROR: I am doing pretty good.
RICK HUBBARD: Have you ever been on jury service before?
JUROR: This is my first time.
RICK HUBBARD: It is kind of different, isn't it?
JUROR: Yes.
RICK HUBBARD: And out of all the cases this is kind of the big one, right?
JUROR: Yes.
RICK HUBBARD: Well, I won't be long. Did I understand you correctly, you want to hear everything in this case before you make a decision?
JUROR: Yes, sir.
RICK HUBBARD: So when it comes to that first phase, whether he is guilty or not guilty or all the verdicts the Judge listed out, you want to hear all the evidence. Is that what I heard before you make a decision?
JUROR: If he is guilty--
RICK HUBBARD: No, I am talking about in the first, in the guilt phase, do you want to hear all the evidence before you reach that decision?
JUROR: Yes.
RICK HUBBARD: So anything that comes out, whether it is from both sides or either side, you are wanting to hear it?
JUROR: Yes.
RICK HUBBARD: Now, in that second phase, if we get there on the penalty, where there is life and death on the table, do you want to hear everything there is to hear in that part of the trial?
JUROR: Yes.
RICK HUBBARD: And my understanding you are a type three?
JUROR: Yes.
RICK HUBBARD: You could give life if you thought that was appropriate?
JUROR: Yes.
RICK HUBBARD: You could give death if you think that is appropriate?
JUROR: Yes.
RICK HUBBARD: And with death, it is a little different than the verdict for life. With death every single Juror has to sign their name to that verdict form. If you thought death was appropriate, you and your eleven colleagues, could you put your name on that verdict form?
JUROR: Yes.
RICK HUBBARD: Mr. Long, that is all we can ask you. Thank you.
JUROR: All right.
THE COURT: Anything else?
BOYD YOUNG: Yes, sir.
EXAMINATION By Mr. Young:
BOYD YOUNG: Mr. Long, let me just follow-up with the Solicitor, you started to say if he was guilty and then you got cut off. Can you tell, can you finish that thought for me?
JUROR: I don't remember, what did I say?
BOYD YOUNG: You were talking about the death penalty and life penalty and you said, if he was guilty, and then got cut off.
JUROR: If he was guilty then, yes.
BOYD YOUNG: Then the death penalty would be the appropriate punishment?
JUROR: No, it wouldn't be the punishment but it would be an option.
BOYD YOUNG: Okay.
JUROR: Unless the, unless he was insane or whatever.
BOYD YOUNG: Okay. I understand where you are coming from. Thank you very much, Mr. Long.
THE COURT: Do we need anything on the record?
BOYD YOUNG: Yes, sir.
THE COURT: Please step off and I will have you right back in here in a minute. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, we move to disqualify Mr. Long being substantially impaired in his ability to follow the law regarding his death penalty views. And I know Mr. Long has trouble, he had trouble speaking in public and in court he was very soft spoken and hesitant with his words. But when asked, give an example of a case that he thought the death penalty was appropriate for, his example was the O.J. Simpson case where he was found not guilty. When we further evaluated that his example here at the end was, unless somebody was insane and which case they would have been not guilty and not eligible for death, then the death penalty was the appropriate punishment. I think his views are substantially impaired, his ability to follow the law under Morgan, Witherspoon and evidence he is, he is predisposed to vote for death and he should not be qualified.
THE COURT: Solicitor.
RICK HUBBARD: Your Honor, I disagree. Obviously I think he is balanced. If you look at his answers in totality, this man struggled and when I went to ask a question, the reason why I stopped is to make sure he understood. He was talking about that second phase and I was asking him about the first phase. But his answer was really death penalty would be an option unless he was insane or whatever. He was in another phase. And so, Your Honor, I think he is perfectly fine. He has said several times, for instance, about the insanity defense. I know there are people out there that have problems so he would consider that. He understands you have to do something pretty bad to get the death penalty. This was his way of coming in here without any experience trying to express his ideas and obviously hasn't had a lot of thoughts on this until he has come in here today.
THE COURT: I think he is qualified and I find him qualified and I will tell you why. His answers were consistent, I want to consider everything, I want to hear everything, he said multiple times. The question about can you name a case, that is a tough question for anybody but him to only know one case and it was 25 years ago, I don't put a whole lot of emphasis on that. Name the case, we are so focused on trials and cases and people and their accusations, I mean it is, asking him that is a difficult question for any Juror if they are not paying attention to the criminal justice system. That is a hard question, to name a case. But, you know, a double murder couldn't be proven and it was in California. It was a double murder, I think it was a different answer but I don't think that disqualifies him. I think he shows he can be fair, he can consider instructions and he just gives very simple answers. Yes or not, was very, very consistent with him, one word answers. So I find him qualified. Anything else?
BOYD YOUNG: Note our objection.
THE COURT: Okay, noted. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Long, the Court has found you qualified. That means you are qualified to be a Juror, not put on the jury yet. What will happen next, you will watch the website where qualified jurors are going to check, come back to, when to come back to court. Probably early next week when you see the, may be late this week but most likely please report back to Lexington County Court House in the courtroom on the fourth floor at some time and some date. It may say for a few days, please check back tomorrow, but you are looking under qualified jurors. Follow those instructions for a qualified Juror because you are one. Now, until that time you are under oath, do not talk about the case, do not let anybody talk to you about the case, do not do any independent research, do not do research on social media, stay off of social media and telling people you are on the jury. Just don't talk about it. If someone tries to talk to you about it, terminate the conversation. Judge Griffith says, don't discuss the case. Minimize your perusal of any media reports. I want you to be impacted and make your decision based on what you heard here in the courtroom, under oath on the witness stand, with the Court Reporter, not what is in the social media. Do you understand.
JUROR: Yes, sir.
THE COURT: That is your oath, I will see you next time you come back in the courtroom. (Whereupon, the Juror was excused from the courtroom.)
RICK HUBBARD: Your Honor, on the next one, I just want to put something on the record before she comes out. Number 19, my Investigator Matt Martin just let me know he used to go to a church where she and her brother attended. He was a youth minister and she was part of that youth group. He doesn't know if she remembers him but wanted to put that on the record.
BOYD YOUNG: Mr. Jones needs five minutes.
THE COURT: Okay. We can do that. We will take five minutes. This is one that may need riding assistance, transportation assistance.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in number 19. (Whereupon, Juror 19, Emily Atkins entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Atkins.
JUROR: Hello.
THE COURT: How are you doing?
JUROR: I am good.
THE COURT: All right. I am going to ask you basically the same question I have asked everybody else. You are under oath, you are sworn to tell the truth. A lot of the questions that I am going to ask you and the lawyers are going to ask you are opinion questions, your personal beliefs, there are no wrong answers, just truthful and candid. Some of them are a little different, there may be more no opinions but just answer the questions the best you can but remember, there is no wrong answers. You took an oath Monday to not talk about the case, has anybody tried to talk to you about since Monday?
JUROR: Very briefly but I told her I can't talk about it.
THE COURT: Okay. You have not talked to anybody other than that?
JUROR: No.
THE COURT: Okay. Now, there has been, I made an announcement--
JUROR: Well, I then, on the way back, the next lady, the next Juror, she took me home and I did tell her something of the stuff that I remembered when it happened.
THE COURT: Okay. There has been publicity, since it happened, when it happened, recently, last week, this week. I also read the indictments in court, the State is accusing Mr. Jones of five counts of murder. He has plead not guilty and is presumed innocent. Have anything you have heard, no matter what it was, anything you have heard caused you to form an opinion as to what you believe happened in this case?
JUROR: No, sir.
THE COURT: You have no opinion?
JUROR: No, sir.
THE COURT: Okay, fair enough. Do you, you understand Mr. Jones is presumed innocent right now?
JUROR: Yes, sir.
THE COURT: Now, the subject matter in this case involves the death of five children. It is going to be difficult testimony, harsh, graphic, unpleasant. I don't want to tell you it is going to be easy, it is going to be hard. Would the subject matter involving that type of testimony make it difficult for you to be fair to both sides, both the State and the Defendant?
JUROR: No, sir.
THE COURT: Can you consider testimony of that type?
JUROR: Yes, sir.
THE COURT: Do you have anything on your personal calendar coming up if you were selected as a Juror, late May or early June will be the obligation.
JUROR: No, sir.
THE COURT: Nothing on the schedule. All right. Did you read the list of potential witnesses?
JUROR: Yes, sir.
THE COURT: Did you know anybody?
JUROR: From a while back.
THE COURT: Who was it?
JUROR: Michelle Gorski, Kevin McKinney and Scott Smith.
THE COURT: How do you know those folks?
JUROR: I know Michelle from a long time ago, from, she taught at my school a long time ago. And Kevin McKinney went to my church but we don't really keep in touch. And Scott Smith was the pastor and the Baptist VSU BCM at Lander but that was a while back too.
THE COURT: Some of these folks are some people you know through church and some through the student ministries through Lander College and Michelle Gorski, how do you know her?
JUROR: She was a teacher.
THE COURT: At the school a long time ago?
JUROR: Where I went.
THE COURT: Okay. Now would the fact that you know those folks, can that create or does it create an issue for you being fair and impartial in this case?
JUROR: No, sir.
THE COURT: Now, I gave you preliminary instructions on the law which described how a Capital case gets called, it is in two phases. Phase one is guilt or innocence, phase two is penalty. The State has got to prove the first phase even to get to the second phase. Phase two requires the State to prove an additional aggravating factor and it also allows jurors to be considered and mindful and understand and consider mitigating factors, reasons not to give the death penalty, to impose a life without parole sentence. Not knowing very much about this case, we have got very sparse facts, the accusations of the murder, the children. I gave you a sheet to describe three types of potential jurors. I have got it sitting here too. Can you identify yourself as being one of those three potential jurors?
JUROR: Type two, mostly what I consider myself.
THE COURT: Okay. Now a type two Juror is a person who is going to impose a life without parole sentence, who considers that to be an appropriate sentence if it is a murder with an aggravating factor such as once proven by the State beyond a reasonable doubt. You understand that the death penalty verdict, the jurors have to be unanimous in that vote to impose that sentence?
JUROR: Yes, sir.
THE COURT: Could you sign a verdict form imposing the death penalty?
JUROR: Yes, sir.
THE COURT: You could?
JUROR: Yes, sir.
THE COURT: If the appropriate facts were presented but you say you identify yourself as a type two. Explain that to me.
JUROR: Well, in certain circumstances the, having time to think about it is more than the death penalty to me.
THE COURT: They have to live with themselves?
JUROR: Yes.
THE COURT: Do you think that is an appropriate sentence for a case, Capital case such as this?
JUROR: Yes, sir.
THE COURT: Would it be in -- just given these facts and the State proves the murder and the aggravating circumstance and whatever mitigation, do you think the life without parole is the sentence that you would vote for?
JUROR: If there is, there is evidence as to mental factors and such.
THE COURT: Okay. Let me ask you this. Could you be, you describe yourself as a type two, could you see yourself finding an occasion, depending on the facts and circumstances that you could either or are you going to be stuck on the life sentence?
JUROR: I can be convinced otherwise.
THE COURT: And what, here is what I am looking for. There are ways to convince you in testimony and evidence, mitigating factors, aggravating factors the State has got to prove and the Defense shows, those are the testimony and evidence. Would you let somebody talk you out of your moral position if you decided that one sentence was more appropriate and you thought that was your decision. Would you let somebody talk you out of that?
JUROR: Yes, sir.
THE COURT: You would. Now, would you let somebody bully you out of your moral decision if you made it and you thought the appropriate sentence was a life sentence. Would you let somebody push you out of that decision?
JUROR: It depends.
THE COURT: Okay. Do you think, would it be appropriate for someone who is in that position, who made that decision, should they go along with the majority or not?
JUROR: Yes, sir.
THE COURT: All right. Now, I am going to describe the first half. You talked about some mental issues, there are some mental issues that have been raised in this case. There was the defense of not guilty by reason of insanity. That is an affirmative defense, potential defense is available and so I am going to read out some potential defenses and then ask you if you can consider those. Now, I am going to read all of them, all of them may not be appropriate in this case but I am going to read all of them nevertheless. It is not necessary that you hear all of those defenses in the case but you are going to hear because that is a summary of the law. Okay?
JUROR: Yes, sir.
THE COURT: Accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi are potential defenses available to a Defendant. Could you consider aspects of those defenses, if appropriately instructed by the Court, and give those due consideration on the facts and circumstances consistent with my instructions and all the facts and evidence in this case. Can you do that?
JUROR: Yes, sir.
THE COURT: Could you consider that the State does, under my instructions, will have the burden of proving its case, the elements of murder beyond a reasonable doubt?
JUROR: Yes, sir.
THE COURT: Now, potential defenses in this case, I am sorry, potential verdicts in this case, four potential verdicts because of the plea of not guilty by reason of insanity has been entered would be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Those are four potential verdict forms. Can you give due and meaningful consideration to all four of those potential verdicts, understanding the Court will instruct you on the aspects of those four verdicts and make a finding consistent with the jury's finding of circumstances, facts and evidence. Can you be fair and impartial on those circumstances?
JUROR: Yes, sir.
THE COURT: Now, if a verdict of not guilty or not guilty by reason of insanity is found by the jury the case ends. If a verdict of guilty or guilty but mentally ill the case goes to phase two. Do you understand?
JUROR: Yes.
THE COURT: In phase two the State has to prove the aggravating factor. Do you understand that?
JUROR: Yes, sir.
THE COURT: And there are several aggravating factors. Murder of a police officer, murder of a child, murder of multiple people, rape of murder, kidnapping of murder are aggravating factors allowed in the statute, the State must prove at least one.
JUROR: Yes, sir.
THE COURT: In the sentencing phase unanimously beyond a reasonable doubt. Now, mitigating facts are facts to not give the death penalty but to impose life. I am going to read those to you, all of these may not be present during the testimony but they are available. 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 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 below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators. Additional ones, how the Defendant was raised, did he have a troubled childhood, does he have any other particular reasons that he has had issues in his personal life. All of those factors can be considered mitigating evidence. Can you give due consideration, meaningful consideration to any of those mitigating factors, presuming they are supported by the evidence presented?
JUROR: Yes, sir.
THE COURT: And consider the aggravating factors and evidence presented by the State on aggravating factors and be fair and impartial in this case?
JUROR: Yes, sir.
THE COURT: Fair and impartial Juror in this case. Now, do you have a reason, you know the death penalty is not a automatic decision. The State has got to prove the guilt of the murder to get to phase two. Phase two is sentencing, the jury has got two choices, life or death, nothing else, no other choices. You give consideration to the aggravating factors, testimony and the mitigating factors, consider all of that in reaching a unanimous verdict that if the jury votes unanimously of the death penalty that sentence will be carried out. If the jury votes unanimously of life without parole the Defendant is committed to the life without parole sentence. Do you understand that?
JUROR: Yes, sir.
THE COURT: Do you have any reason, moral, religious, personal ethical reason which you could not impose or sign a verdict for the death penalty?
JUROR: No, sir.
THE COURT: Do you have any reason, moral, personal or ethical or religious which would prevent you from imposing a life without parole sentence?
JUROR: No, sir.
THE COURT: All right.
THE COURT: Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, excuse me, I am a little hoarse, I have been doing a lot of talking?
JUROR: You are a little donkey.
BILL MCGUIRE: I am sorry. I appreciate that. So, Ms. Atkins, this is where the Judge lets the lawyers just talk to you for a little bit about your personal opinions about the death penalty. Okay. And all we can do is just ask people to be fair. And it sounds like you can fairly consider both punishments in a Capital case for life and death. Is that right?
JUROR: Yes, sir.
BILL MCGUIRE: And you would listen to all of the evidence that the State would present, the Government, the Prosecution?
JUROR: Yes, sir.
BILL MCGUIRE: Okay. And if you found yourself in a position where the State, the Government came forward with all of the evidence to prove guilt and an aggravating circumstance thereby making the case eligible for the death penalty, you can vote for the death penalty?
JUROR: Yes, sir.
BILL MCGUIRE: Okay. And in South Carolina, if the jury votes for the death penalty they all have to sign their name to it, all twelve people, could you do that?
JUROR: Yes, sir.
BILL MCGUIRE: And could you also consider the life penalty if the Defense was to offer some reasons to vote not for the death penalty but for the life penalty, you could consider the life penalty?
JUROR: Yes, sir.
BILL MCGUIRE: And that would be life without parole, the person would never get out of prison?
JUROR: Yes, sir.
BILL MCGUIRE: Okay. And do you have any doubt about that, you can definitely do both of those things?
JUROR: Yes, sir.
BILL MCGUIRE: Okay.
BILL MCGUIRE: Judge, if I could have just one second.
THE COURT: You may.
BILL MCGUIRE: That is all I have for you, Ma'am, thank you very much.
JUROR: Thank you.
THE COURT: Mr. Hubbard.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Atkins, how are you?
JUROR: I am good.
RICK HUBBARD: I am Rick Hubbard and I just have a few questions for you as well. When you first came in here the Judge asked you a number of questions and ask you about the list of the types of jurors and you said number two best described you?
JUROR: Yes, sir.
RICK HUBBARD: I just want to make sure I understand. If I can, I am going to read it and make sure that you and I are still talking about the same number two. Okay?
JUROR: Yes, sir.
RICK HUBBARD: Type two is a Juror that once the crime of murder and an aggravation circumstance has been prove by the State this Juror would always give a sentence of life without parole. This Juror would not need to hear the facts and circumstances in aggravation or mitigation of the case because this Juror simply feels that once a murder has been committed life without parole is the appropriate punishment. Does that describe you?
JUROR: Yes but I can be convinced otherwise.
RICK HUBBARD: Okay. And you mentioned that and I think when the Judge was asking you some questions and I may not have heard it right so this is the time to clear it up because sometimes I don't hear things well. He was asking you about if somebody was bullying you or trying to get you to change your position and you would consider, I think you said something?
JUROR: Yes, sir.
RICK HUBBARD: What was your response there?
JUROR: I would consider it.
RICK HUBBARD: Okay. And he asked you if the majority of the jurors had a different view from yours what would you do?
JUROR: I would listen to their opinions.
RICK HUBBARD: And I think at one point you said something, if I heard you right, that you would go along with the majority?
JUROR: Yes, sir.
RICK HUBBARD: Okay. And I guess, I just need to know that, would that still be your opinion if you are going along with the majority?
JUROR: Yes, sir.
RICK HUBBARD: So say after hearing a case and you were thinking you were a number two and it is life and fellow jurors were saying thought otherwise, that maybe death was appropriate, you would go along with them?
JUROR: Yes, sir.
RICK HUBBARD: Okay. Ms. Atkins, thank you so much for being very honest with us.
JUROR: Thank you.
BILL MCGUIRE: Just very briefly.
THE COURT: Sure.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: So, Ms. Atkins, regarding this, would you stay with your position or would you get talked into joining the majority, I want to talk to you a little bit about the law on that issue and you tell me what you think about it. Okay. What your personal position is. And if the Judge was to tell you or the Clerk instruct you that a person's decision is their decision and they have an obligation and a duty, if it were to harm their conscious to change their position, they can't do it, they have to stick with their position. That is a little wordy.
RICK HUBBARD: Your Honor, I object to that question. If he can rephrase it.
THE COURT: I will let him rephrase it and I think he realized it was a little wordy.
BILL MCGUIRE: It was a little wordy.
BILL MCGUIRE: If you were to say you wanted to vote for the life without parole penalty and if it would harm your consciousness to change that position and the Judge told you it was your duty and obligation to stick with that position even if there was a majority of people on the other side--
RICK HUBBARD: Your Honor, I object to that question as well.
THE COURT: I am going to allow it, I think it follows the questions the Court asked.
RICK HUBBARD: Okay.
THE COURT: And your objection is noted and I understand your basis.
BILL MCGUIRE: So could you do that, could you stick with your position?
JUROR: If need be.
BILL MCGUIRE: Because the rules are that it is not a majority decision, it is not, you know, if more people are on one side than the other it is not a majority decision. This is an individual decision and everybody is allowed, in fact they have the duty and obligation to stick to their position once they make it and it is a consciously held view. Can you do that?
JUROR: Yes, sir.
BILL MCGUIRE: But you would want to listen to other people, hear their views, their opinions and that could maybe make you change your mind?
JUROR: Yes, sir.
BILL MCGUIRE: But you wouldn't give up your position just to join the majority, would you?
JUROR: No, sir.
BILL MCGUIRE: So if you reach a conscientious decision and you really believe it, you really believe that the life penalty is the real punishment, it is right for you, you can stick with that?
RICK HUBBARD: Asked and answered.
THE COURT: Sustained. It has been asked and answered.
BILL MCGUIRE: Okay, I just want to verify.
BILL MCGUIRE: I think you have answered all of my questions. I really appreciate it. Thank you so much, Ms. Atkins.
JUROR: Thank you.
THE COURT: All right. Ms. Atkins, will you step out of the courtroom, I have got to talk to the lawyers briefly and then I will have you back in here. (Whereupon, the Juror was excused from the courtroom.)
BILL MCGUIRE: We don't have anything.
THE COURT: All right.
RICK HUBBARD: Your Honor, at the risk now of being accused of being against someone who is disabled--
BILL MCGUIRE: I didn't say she was disabled.
RICK HUBBARD: My objection is on State v. Bennett which is at, for the record, 493 SE 2nd 845. Judge, a Juror who would vote with the majority on a death penalty is not qualified. Here is my concern. Judge, she is extremely nice. She may end up, Judge, she sounds like she wants to do the right thing, she seems to answer yes if you just give her a question with yes, no. But when you get her to explain and I got her to use her own language that she would go with the majority, that was the disturbing thing. So here is the concern that I have that was raised in Bennett. She gets on the jury, she is persuaded by others, she feels like this is life, I identify with Juror number two. I can be persuaded but all eleven other folks say, look, we think this is death. She is life, if she were on her own she would say this is life. But she says, all right, I will go with you. That seemed to be the level of persuasion. And that concerns me.
Although on the one hand that would be the verdict, obviously, I am looking for. My concern is, say now that verdict is handed down. I have got a death sentence with her on the jury. I have got a transcript that is muddy where she was qualified, where it was just, Judge, it just seems so clear she is going to be easily led. And where she said she would go with the majority, she is on her own. She seemed very polite, very nice but just easily led and would abandon her original position because eleven other people are saying they were going another way. And that is exactly what State v. Bennett addresses. And, again, this isn't because of any disability. Your Honor could make whatever allowance is needed for that, we have done that many times before. The other issue I have is just, I am not sure she can follow directions. She had mentioned when you brought her in that she had talked to one of the jurors that drove her here. That is another concern. I am just wondering how easily led she is, Judge. We are talking about the ultimate sentence here.
THE COURT: All right, let me hear from Mr. McGuire.
BILL MCGUIRE: Thank you, Judge. She has a Bachelor's of Science from Lander University and she actually gave some pretty thoughtful answers to the Court. It is difficult when you start off on a one or a two and then you say, well, later I am changing my mind. And she actually said why, to listen to other people and in the right circumstances I am a number three. She abandoned her position of going with the majority when she was informed that the rules of court do not allow for that, this is not a majority decision, that she would have a duty and obligation to stick with her consciousness held belief, she said she could do that and she would do that. So I think taking her answers as a whole I think she is qualified. And also there is no reversible error when we are asking you to qualify somebody and you do so.
RICK HUBBARD: Except for PCR's which is where all of these cases are getting flipped. And that is my big concern.
THE COURT: I am considering all the testimony that she presented, that she talked with the Juror going home and told not to. I mean, she answered my questions and her answers routinely elicited more questions from me. It seemed to me that it depended on who was the last one to talk to her, which answer she was given. And she stated to me twice that she was a type two and would vote for life. She then answered that she would go along with the majority vote and that she could be talked into changing her mind or her moral view. She talked with the other jurors. She seemed to be inconsistently or she was consistently agreeing with the interrogator, whether it was me, whether it was you or whether it was Solicitor Hubbard. She went along with us individually. That causes me concern, can she follow my instructions of don't talk about the case and she talked with the girl, lady, whoever it was giving her a ride home. I am going to find her not qualified, I just have too many concerns with her answers being inconsistent and she gave different answers, not one, she gave several different answers to each of the attorneys as well as the Court. And that is inconsistent, and consistent responses to the very important questions gives me great concern that she could be, that she could follow the instructions of the Court. You want to be heard, Mr. McGuire?
BILL MCGUIRE: Just only to state that we have had other jurors giving inconsistent answers including Mr. Garrett Johnson who was the second Juror who I talked to. And he went from a number three on his sheet and his final answer to me was that he was a number one, inconsistent answers, gave an answer to the last person who talked to him, that was, essentially that he was automatic death penalty in an aggravated murder involving multiple children. Despite inconsistent answers with his last one being a disqualified answer, not a qualifying answer like this Juror, but his ultimate last answer was that he was, he would not be qualified as a number one. He is going to be qualified, he is that impaired because he is going to vote for death or we are going to have a life leaning Juror disqualified under different standards, we would object to that process. Because that would be using a different standard, if we are going to have a different standard for people who lean towards life and a different standard leaning towards death then we are going to have a system that results in a jury uncommonly willing to convict and sentence to death.
THE COURT: I understand your argument and I will try to give that analysis because that is what I am trying to do is not be inconsistent but this lady answered several times to me inconsistent, not to y'all, she answered to y'all too, to Solicitor Hubbard and to you, Mr. McGuire that she was meandering about that she was. And also I note that the Defense is engaged in a line of questions is you understand your individual moral judgment, what it is, and you are not required to be bullied out of it. Y'all kind of stayed away from her on that. She explained it to her when you got back up but not in as detailed as before. I am still not going to find her qualified, I am not going to do it. Bring her back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Ma'am, the Court, based on some of your answers, self describing yourself as a type two Juror, I am going to find you not qualified to sit on this jury. So you are going to be excused from jury service. All right.
JUROR: All right.
THE COURT: Thank you very much for coming in.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
BILL MCGUIRE: And, Judge, just to protect the record, I think I have got to object after you actually ordered her excused. This is a little bit different so I would just add that excusing this Juror would be a violation of Mr. Tim Jones Sixth Amendment right, fair and impartial jury. And it is found both in the Sixth Amendment and the due process clause, Fifth Amendment. And, again, if we have a system where you give inconsistent answers but they are definitely qualified, we have a system with analysis, that are leaning towards life, that that process would be a violation of Mr. Jones' rights.
THE COURT: And your objection is noted and your analysis noted for the record.
RICK HUBBARD: And one final thing for the record, I don't think that we have any other Juror come in here and admit that they have ignored your instruction and then, not just talk to another Juror but talk fully about everything she knew about this case.
THE COURT: She has done that. All right, are y'all ready on 241?
RICK HUBBARD: Yes, sir.
THE COURT: Bring number 241. (Whereupon, Juror 241, Toshia Addison came into the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, how are you doing.
JUROR: I am doing fine.
THE COURT: You are Ms. Addison?
JUROR: Yes, I am.
THE COURT: Or Latimer Addison?
JUROR: Addison is fine.
THE COURT: Whatever your name to be on the record I want you to say and spell it for Ms. Holston so she will put it down right now.
JUROR: Toshia, T-O-S-H-I-A; Addison, A-D-D-I-S-O-N.
THE COURT: Ms. Addison, welcome back to the courtroom. I gave you some instructions and you took an oath Monday to not talk about the case. Since Monday have you talked about the case with anyone?
JUROR: No, sir.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: No, sir.
THE COURT: Now, there has been a lot of publicity and a lot of information about this case provided. I have provided some of the information Monday by reading the indictments and the allegations of the murders that the State is alleging against Mr. Jones to which he has plead not guilty. Now, considering the information, whether it be publicity or the Court giving you information, have you formed an opinion based upon any of that information at this point in the case?
JUROR: No, sir.
THE COURT: And did you, you don't have an opinion as to what happened?
JUROR: No, sir.
THE COURT: Very well. Now, I asked you when you came back in to tell me about your personal schedule, whether it be work or otherwise. You got anything on the schedule coming up through the end of May, early June which would prevent you from serving as a Juror in this case?
JUROR: No, sir.
THE COURT: Nothing?
JUROR: No, sir.
THE COURT: Now, I also gave you a list of witnesses to read over, did you look over those witnesses?
JUROR: Yes, sir.
THE COURT: Did you know anybody?
JUROR: No, sir.
THE COURT: Not a one?
JUROR: Not a one.
THE COURT: Now, I also gave you instructions before you came in here.
JUROR: Yes, sir.
THE COURT: One part of that instruction that I did not tell you was, I want you to understand that the subject matter of this case involves the death of some children. The subject matter involves descriptions, the testimony will be graphic, perhaps harsh, unpleasant, tough to hear, tough to see. That is how it has been described to me, I have not seen all of the testimony or evidence, I don't exactly know how to describe it to you other than those words, unpleasant and tough. The subject matter of that type, being difficult to hear, would that make it difficult for you to be fair and impartial to both the State and the Defense?
JUROR: No, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: All right. I gave you an instruction, kind of a brief instruction on the law, as the law of South Carolina is, the State must prove a Capital case in two parts. Phase one is the trial or guilt or innocence of the murder charge. If it is not guilty in phase one the case ends. If the State proves the case beyond a reasonable doubt it goes to stage two. Stage two is when it is presented, the State has got to prove an aggravating factor allowed by the statute and there is mitigation evidence considered by the jurors. Mitigation of reasons to not give the death penalty, to give life in prison. I gave you a form which describes three types of jurors in general terms. So in considering the scant evidence you have thus far can you, broad picture, find yourself, identify yourself as one of those three types of typical jurors?
JUROR: Yes, sir.
THE COURT: What type?
JUROR: Three.
THE COURT: Type three. That is a Juror who wants to hear everything before making a decision. Is that you?
JUROR: Yes, sir.
THE COURT: All right. Now, I am going to start back and kind of work through the trial process. Mr. Jones has entered a plea of not guilty by reason of insanity. And by that that means the jury is going to hear some defenses available to him under our law. Since I haven't heard the testimony some of the defenses, additional to that come into play also. Won't know until the testimony is presented and maybe those facts get argued if the testimony supports it. I am going to list all of them to you for the purpose of my question. So eligible defenses for a crime could be identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are all potential defenses. Not all of them will be instructed. The ones that are appropriate considering the testimony and evidence will be instructed. Now, can you give meaningful consideration to all of those defenses and consider meaningfully the evidence and testimony of the State in its presentation of the case, the State has got to prove its case beyond a reasonable doubt. Can you consider all of the evidence in that phase of the case, consider my instructions and give meaningful consideration to the State's required burden of proof as well as any of those defenses which are supported by the evidence. Can you do that?
JUROR: Yes, sir.
THE COURT: Can you act fairly and impartially in doing so?
JUROR: Yes, sir.
THE COURT: Now, if the State fails to meet its burden or a not guilty by reason of insanity verdict is found the case ends. If the State meets its burden of proof, prove the guilt of the murder, then we go to phase two and phase two the State has got to prove an aggravating factor. There are several under out statutes, they are rape of murder, kidnapping of murder, murder of a policeman, murder of a child, multiple murders. Those are aggravating factors, one of which the State has to prove beyond a reasonable doubt. During the punishment phase mitigating factors are presented also for a jury to consider and those are reasons to give life without parole. Statutory defenses, I mean mitigating evidence could be, not all of these could be appropriate but I will instruct you on the ones that are at that time. 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 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. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators. Additional mitigation would be anything the jury wants to hear. Walk in life with the Defendant, life while growing up, broken childhood, broken home, anything of that sort can be considered and be a reason for voting for a life without parole sentence. Do you understand those factors could be presented and the jury should consider them?
JUROR: Yes, sir.
THE COURT: Now, understanding this, if the case gets to the sentencing phase, burden of proof, the jury determines the punishment, the State has got to prove beyond a reasonable doubt an aggravating factor. The Defendant will present mitigating evidence which a jury may consider any form of that. Two potential verdicts, life or death, nothing in between, only two choices. Can you give meaningful consideration to the State's burden of proving the aggravating factor as well as any and all mitigating factors to be presented and consider my instructions on those aspects of the law and be fair and impartial in this case?
JUROR: Yes, sir.
THE COURT: Can you, do you understand the death penalty is not automatic?
JUROR: Yes, sir.
THE COURT: Do you have any religious, personal or moral belief that you could not impose a life without parole sentence?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal belief that you could not impose the death sentence if that were appropriate?
JUROR: No, sir.
THE COURT: Do you know any reason whatsoever you could not be fair and impartial in this case?
JUROR: No, sir.
THE COURT: All right, Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Ms. Addison, how are you doing today?
JUROR: I am good.
ROBERT MADSEN: So the Judge, he kind of went over some stuff with you and you understand that it is, my name is Rob Madsen, I am one of Tim's lawyers. It is just kind of our chance to have a conversation or talk. There is no right or wrong answers. I am just kind of trying to get your feelings and your opinions. Okay?
JUROR: Okay.
ROBERT MADSEN: Did you know any of the other jurors?
JUROR: No, sir.
ROBERT MADSEN: And I can't remember, when, gosh, I guess it was last Monday a week ago, did you stand up when he asked about publicity, had you heard anything?
JUROR: Not a word.
ROBERT MADSEN: Four years ago. Okay. So can you just kind of tell me your general feelings on the death penalty?
JUROR: Such as?
ROBERT MADSEN: Well, I mean, what do you think about it?
JUROR: I don't really have an opinion one way or the other. I mean, I never thought about the death penalty and I am not being a smartelec, nothing I consider one way or the other, I have never had the opportunity to think about it one way or the other. I have never thought that someone should have it, I have never thought that someone should not have it. I don't really have an opinion about it one way or the other. I don't, you know--
ROBERT MADSEN: That is a perfect answer. As long as you are truthful, you can't answer it wrong.
JUROR: I don't have a, I can't say no one should ever get the death penalty or if you do A, B and C you should have the death penalty. I have never actually thought about it, it has never come to my frame of mind, I watch CNN and I have never really sat and thought about that.
ROBERT MADSEN: Well, let me put you on the hot seat a little bit.
JUROR: Sure.
ROBERT MADSEN: Say you are the Governor for the day and they put a Bill on your desk that allows the death penalty and they put a bill on your desk that eliminates the death penalty. Which one do you sign?
JUROR: I feel that is a loaded question because, you are trying to make me say something that I really may or may not believe. And even if I am Governor for the day, saying that I would sign for the death penalty or not sign for the death penalty, I guess for me I would put it towards the voters.
ROBERT MADSEN: Okay. Well, do you think the death penalty has a purpose?
JUROR: Yes.
ROBERT MADSEN: Can you tell me what that is?
JUROR: In South Carolina it has been quite a while since we have actually performed the death penalty. We have the death penalty where many people are on death row but we haven't performed that in quite some time. So I guess that is why it is not really coming up in my frame of mind. I don't wish your client to live, I don't wish your client to die. I truly, when you asked the question a second ago, the only thing that I have heard about the case was what the Judge read and I know you are asking if I would require your client to die. And I don't want to sit here and come up and concoct a story and tell you a lie and even if I was Governor for the day I still never really thought about it. And I think that before you make such a harsh or rash decision for anybody that you should actually have a valid reason and not just say something just to say it or just to answer a question that I don't feel like if I tell you anything I would be telling you a lie because I really don't know. So for me to say if I was Governor for the day, I would say death penalty, for me to say if I was not Governor for the day I would say strike it. I am a person who thinks that our laws are put on the books for a reason and I don't think that a Governor should have, want to say that this or that should or should not occur. So I think that we should have a reasonable discussion before we come off with saying, I want the death penalty or I don't want the death penalty. So I can't tell you, I can't say that.
ROBERT MADSEN: Okay. That is a perfect answer. Like I said, no right or wrong answers here, just kind of what you feel.
JUROR: So I don't agree or disagree. I am truly about, I am very neutral with it, I don't have, I can't do that or I don't have, that is when you should always do it. I think that, in our society, that we have a collective group of people and the death penalty is there for a reason and it was voted for and it was put on our book. The Governor wasn't the one that just decided it.
ROBERT MADSEN: Right. And you understand that some people that say, you know, the death penalty is appropriate for retribution, kind of an eye for an eye. Do you understand that?
JUROR: I do.
ROBERT MADSEN: Is that something that you believe?
JUROR: They also, if they get you on one cheek turn the other.
ROBERT MADSEN: Sure. Like I said, retribution is one reason that some people support the death penalty and you have also got deterrence.
JUROR: I don't think that that deters it. I mean, I think that, I don't think that the death penalty one way or the other can deter a crime, if they did we wouldn't have so much murder that we do in our society period. You know, I don't think that a lot of things, I don't think that cops setting up speed traps deter people from speeding, they still do it, the cameras that they put on the traffic cam, that doesn't deter people from running the traffic light, they still do it.
ROBERT MADSEN: Sure. That makes sense. And you have got, obviously, some people incapacitation in other words, you get that rid of that person they can't do anything again. So let me kind of switch it up. The Judge kind of talked to you and told you that Tim had plead not guilty by reason of insanity.
JUROR: Yes, sir.
ROBERT MADSEN: And that basically means that someone, because of a mental disease or a mental defect does not know the difference between a moral or a legal wrongfulness of their actions. Do you understand that?
JUROR: Yes sir, I do.
ROBERT MADSEN: And you get some people that say, you know what, that is just an excuse or that is a copout. I can't do with that. My question is, is that you?
JUROR: No, it is not.
ROBERT MADSEN: And so even though, you know, when someone pleads not guilty by reason of insanity, they are saying, hey, I did the act, I just couldn't appreciate the moral or the legal wrongfulness of it. And you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: Well, let me ask you this. The Judge kind of told you, murder means the malicious killing of an innocent victim done with hatred or ill-will. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And that it is not, it is done without any kind of excuse or justification or any kind of defense. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: So if you were on a jury and the Defendant is charged with multiple murders of children and there is no excuse. In other words, if you have heard anything about any kind of mental illness you and the other jurors have rejected that, there is no type of defense, there is no self-defense or heat of passion or anything like that. So basically it is a situation where it is a malicious killing, an intentional killing of innocent children. My question to you is, what is your thought as the death penalty is the appropriate punishment for that intentional malicious murderer of innocent children?
JUROR: My thought is that if you actually believe that, that you wouldn't be representing him as strong as you are.
ROBERT MADSEN: No, but I am trying to find out what your thoughts are in that situation, obviously.
JUROR: I mean, you described something that anyone including yourself would classify as heinous. So in doing that it is like, almost like a circle of a question and that leads back around to the death penalty question that you were asking me before.
ROBERT MADSEN: Let me ask you, in that situation, could a life without parole sentence ever be sufficient?
JUROR: You are asking me something to make a judgment inference to a case.
ROBERT MADSEN: I am not talking about, I am not just talking about this case. I am just talking in general.
JUROR: Can you repeat what you are asking me.
ROBERT MADSEN: Sure. So in that situation where you and eleven other jurors have found someone guilty of an intentional, malicious killing of multiple kids, is a life without parole sentence ever appropriate in that situation?
JUROR: Well, according to what the Judge told us a minute ago we would have to follow his instructions and make sure we found mitigating circumstances as to why or why not that would be the case. So the first thing would be to follow the instructions of the Court and of the Judge with how we would actually follow that crime. So if all of those things in there, no mitigating of what you have shown to show that we would actually follow, my job would be to follow the instructions of the Judge.
ROBERT MADSEN: Right. Well, you understand--
JUROR: I am trying to answer your question without going left or without going right. And I feel like I am, it is trying to take me one direction when I am really trying to give you an honest -- and as far as possible. But when you ask me that question, he also gave me instructions a second ago in how we are to make sure that we listen to what you say as far as his defense and as far as the prosecution and what they say in making sure that we follow his instructions with what we are doing.
ROBERT MADSEN: And you understand that the question just kind of presupposes, well, let me back up. So you kind of understand that it is a weird situation because I am kind of talking to you about penalty when we might not ever get there?
JUROR: Exactly.
ROBERT MADSEN: And so it is kind of odd--
JUROR: So I can make up a lie to you, I can tell you anything you want me to tell you.
ROBERT MADSEN: No, I just want to hear what you think, deep down in your heart.
JUROR: But I am telling you that and I am saying that to you.
ROBERT MADSEN: So you have got two separate, so you have got that first phase where you and the other jurors are going to be able to consider guilty, not guilty, not guilty by reason of insanity or guilty but mentally ill. Do you understand that?
JUROR: I understand.
ROBERT MADSEN: And so what I was asking you is, you and the other jurors have determined either guilty or guilty but mentally ill--
JUROR: You are telling me now, you are saying that we have found your client guilty.
ROBERT MADSEN: Yes. And we sort of jump to that second phase. Okay. So we are kind of presupposing that and you understand that even in that second phase that in South Carolina the death penalty is never required?
JUROR: I understand that.
ROBERT MADSEN: And so I think you kind of said, A, B and C, there is never, if the State proves A, B and C, got to have death. Do you understand that?
JUROR: I understand that.
ROBERT MADSEN: Because in South Carolina, basically that is called mitigation. In other words, mitigation is any reason to give someone a life without parole sentence?
JUROR: Right.
ROBERT MADSEN: You understand that. And this State or actually throughout the whole Country anyone can get a life sentence for this case, any case or even the worst case you could imagine.
JUROR: Correct.
ROBERT MADSEN: And you could hear circumstances but those aggravating circumstances have to found by you and the eleven other jurors beyond a reasonable doubt. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: But the mitigating circumstances do not have to be, there is no burden of proof. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: And so when we talk about those mitigating circumstances each Juror can find different mitigating circumstances themselves. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: And so what that means, this Juror right here says, you know what, I saw that he has got a good relationship with his dad. And you know what, to me, I want the value of life on that and that is reason that I want to sentence him to a life sentence.
JUROR: I understand that.
ROBERT MADSEN: And this Juror could say, you know what, I didn't necessarily see what this Juror here saw, I think he has some mental health problems. And you know what, for me, that is why I want to give the value of life. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And this third Juror over here could say, you know what, I didn't see that, what they say. But you know what, I don't know what it is, I can't put it into words. I just think that a life sentence is appropriate myself.
JUROR: I understand.
ROBERT MADSEN: And you agree with that?
JUROR: I think that each individual person may have their own reasons for why they may have, as you stated, mitigating circumstances. And from my understanding it has to be all twelve to make sure it is a death penalty. Is that correct?
ROBERT MADSEN: It is.
JUROR: Right. So you could have one that could have that mitigating circumstances that would make it to where it would have to be, I am assuming, life without parole, correct?
ROBERT MADSEN: Yes, ma'am.
JUROR: Okay.
ROBERT MADSEN: And so, like I said,--
SHAWN GRAHAM: Your Honor, objection. I don't know if this is proper questions.
THE COURT: I think I am going to let you ask the questions, Mr. Madsen. Reask the question because she is understanding the instructions but keep going with the understanding of mitigating factors.
ROBERT MADSEN: Well, so, like I said, each Juror can find their own mitigating factors or whatever they feel is appropriate.
JUROR: Yes, sir.
ROBERT MADSEN: And some people, the Supreme Court kind of calls it, when jurors look at those factors they kind of call it an individual moral judgment. Do you understand what that means?
JUROR: Yes.
ROBERT MADSEN: Okay. So I kind of equate it to like faith. You have made an individual moral decision about what your faith is.
JUROR: Okay.
ROBERT MADSEN: And maybe someone else has an individual moral decision about what their faith is.
JUROR: I understand.
ROBERT MADSEN: And you, the two of you might have made different decisions about what your, their faith is but you would expect them to respect what your decision is, correct?
JUROR: Correct.
ROBERT MADSEN: And you would--
JUROR: Respect theirs, correct.
ROBERT MADSEN: And you understand that once a Juror makes that individual moral judgment that that is their decision?
JUROR: Correct.
ROBERT MADSEN: And you understand that when you are back in the jury room that jurors might have different individual moral judgments?
JUROR: Correct.
ROBERT MADSEN: And the law says that once you have made that, that is your decision and that you shouldn't be bullied or browbeat or someone to kind of take that away from you. Do you agree with that?
JUROR: Definitely.
ROBERT MADSEN: And is that something that if you saw, you know, back in the jury room where it got farther than say, just normal civil discourse that you would step in and say, no, they have a right to their individual moral judgment.
JUROR: Definitely.
ROBERT MADSEN: And if it got to the point where you saw that would you write a note to the Judge and say, Judge, this is gone way past civil discourse. You need to step in.
JUROR: Definitely if it is out of hand.
ROBERT MADSEN: And you would send a note?
JUROR: I wouldn't have a problem whatsoever.
ROBERT MADSEN: Judge, subject to your previous ruling that is all I have.
THE COURT: All right, Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Ms. Addison, my name is Shawn Graham, I represent the State.
JUROR: Mr. Graham.
SHAWN GRAHAM: Thank you for being here today and answering our questions.
JUROR: Yes, sir.
SHAWN GRAHAM: My understanding is you are a type three?
JUROR: Yes, sir.
SHAWN GRAHAM: You read it over, you would want to hear the good and the bad?
JUROR: Yes, sir.
SHAWN GRAHAM: And then after you hear the good and the bad, if you think it is right you could vote for life?
JUROR: Yes, sir.
SHAWN GRAHAM: If after hearing the good and the bad do you think the appropriate sentence is death, you could vote for death?
JUROR: Yes, sir.
SHAWN GRAHAM: Thank you.
THE COURT: Anything else?
ROBERT MADSEN: No, sir.
THE COURT: Ms. Addison, we are done with you and I am telling you right now I find you qualified as a Juror. You are now qualified and you will watch the internet on the Lexington County website just as you did when you reported as a panel. You are now going to follow the instructions on what is under the qualified jurors description. And the qualified Juror has to come back, probably early next week it will say, please report back to the Lexington Court House at 9:00 o'clock Monday morning, Tuesday morning. It may not say that for a few days, it may say please check back tomorrow for further instructions. You check back and follow the instructions and until that time don't discuss the case. You are under oath not to do any investigation, not to do independent research, don't get on social media and tell people you are on the jury. Don't talk about the case whatsoever. And my instructions tell you not to let anyone talk to you about the case includes don't peruse publicity, media, social media or otherwise. Any opinions on this case that are out there are just that. I want you to decide the case on what is presented to you here in the courtroom, under oath, under the supervision and the record. Will you do that?
JUROR: Yes, sir.
THE COURT: Thank you.
JUROR: Have a good evening.
THE COURT: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Observation, Mr. Long and Ms. Addison, different form, giving answers, yes, yes, no. She gave answers.
RICK HUBBARD: She did.
THE COURT: All right, are y'all ready on number 10?
RICK HUBBARD: Yes, sir.
THE COURT: Bring them in. (Whereupon, Juror 10, Edgardo Alvira entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing. Sit right here, please, sir. Are you Mr. Alvira?
JUROR: Yes.
THE COURT: Have a seat. I will tell you again for the third or fourth time, my name is Eugene Griffith, I am the presiding Judge. I need you to spell and say your first and last name for my Court Recorder, Ms. Holston.
JUROR: My name is Edgardo Alvira, E-D-G-A-R-D-O; A-L-V-I-R-A.
THE COURT: All right, sir. Thank you for coming. I placed you under oath Monday and instructed you not to talk about the case or have anyone talk to you about the case. Since Monday, leaving the Court House, has anyone tried to talk to you about the case?
JUROR: No, sir.
THE COURT: You have not talked to anybody nor has anybody questioned you about the case?
JUROR: No, sir.
THE COURT: There has been a lot of publicity in the news media, publicity on social media as well as the Court gave instructions on the indictments about what the State is alleging happened. There were murders, allegations of five murders in this case. Do you understand that?
JUROR: Yes, sir.
THE COURT: Based upon anything you heard prior to coming into court today have you formed an opinion as to what you think happened in this case?
JUROR: No, sir.
THE COURT: No opinion formed?
JUROR: No, sir.
THE COURT: Now, I ask you about your work schedule, your personal schedule over the next month. Have you anything on your calendar, if you are qualified as a Juror, can you sit as a Juror if I need you for next week, the week after, potentially into the early part of late May or June. Can you do that?
JUROR: Can I say something?
THE COURT: Yes. I want to know what you have got on your schedule.
JUROR: Okay. I have no problem with my work but my problem may be with my language because my stronger language is Spanish.
THE COURT: Okay.
JUROR: That is the only thing that maybe can create any problem.
THE COURT: Now, you, how long, you grew up in--
JUROR: Porta Rica.
THE COURT: I thought that PR was an abbreviation for Porta Rica. Did you study English growing up?
JUROR: Yes, in Porta Rica.
THE COURT: So you were raised in a dual language household?
JUROR: No, sir.
THE COURT: Only Spanish?
JUROR: Yes. Everyone in my house speaks Spanish.
THE COURT: When you went to high school, did they teach you English in high school?
JUROR: Yes, sir.
THE COURT: Is that where you learned it?
JUROR: Yes, sir. I had to speak, learn to talk English.
THE COURT: Thus far any of the instructions I have given you, have you been able to discern what I meant?
JUROR: But these are not like my environment where I work or my field.
THE COURT: You work in maintenance?
JUROR: Yes.
THE COURT: You fix things?
JUROR: Yes, sir.
THE COURT: Motors?
JUROR: Walls.
THE COURT: Carpenter, you do carpenter work, sheetrock?
JUROR: Yes, maintenance is a apartment complex.
THE COURT: Okay, I got you. You work on buildings. If something needs fixing you repair it?
JUROR: Yes, sir.
THE COURT: I guess you work on broken doors from time to time?
JUROR: Yes, sir.
THE COURT: Okay. Thus far if you have trouble understanding me tell me to reask the question and I will be glad to. Did you hear and understand the instructions I gave to you earlier about the process, the criminal process of, accusations of murder in a Capital case means there could be a two-phase case. Phase one would be the consideration of guilt or innocence, whether the murder happened or not. The murders, the State proves the murder then it goes to phase two where punishment is considered by the jury. And in a Capital case the jury imposes the punishment, not the Judge. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, did you, I didn't ask you about this. The case involves the testimony which involves the death of some children. Would testimony about the children's deaths, their descriptions, it is not going to be easy, it is going to be difficult testimony to listen to, may be graphic, harsh, unpleasant. Would testimony of that type, that subject matter be difficult for you being fair and impartial to both the State and Mr. Jones' side?
JUROR: Maybe.
THE COURT: You have got children?
JUROR: The youngest is 24, the oldest 28.
THE COURT: Your children are grown?
JUROR: Yes.
THE COURT: Do you have grandchildren yet?
JUROR: Not yet.
THE COURT: Okay. And so I don't want you to be surprised by me saying it is going to be unpleasant and difficult testimony. It is going to be difficult and unpleasant. Is that going to be difficult for you to be fair and impartial to both sides?
JUROR: Can I say something?
THE COURT: You can say it.
JUROR: I believe in justice and I think that what I lean for, for justice.
THE COURT: Let me go on to the next question. Did you see and read the types of jurors the Court's typically find, type one, type two, type three?
JUROR: Yes, sir.
THE COURT: Can you identify yourself on any of those three tyes?
JUROR: Yes.
THE COURT: Where would you fall assuming those facts.
JUROR: Well, by my understanding what I read I think I would apply for number three, from my understanding.
THE COURT: Okay. And let me ask you about that and I don't mean to embarrass in any way but you brought up your language, native language being Spanish and your secondary language being English. Do you read and speak, do you speak English better than you read it or do you read it equally as well?
JUROR: I think it is even.
THE COURT: Even. Okay. Fair enough. Have you understood my instructions on the law thus far?
JUROR: Yes, sir.
THE COURT: But you classified yourself as a type three. You want to hear everything to determine what is the justice of the case?
JUROR: Can you repeat that, please.
THE COURT: You described yourself as a type three Juror which would be a person that would consider and wait for the entire case to be presented, all evidence of the aggravation which would be the aggravating factors and all evidence of mitigation, would be reasons to impose a life sentence as opposed to a death sentence. A type three Juror wants to hear everything before making that decision. Is that right?
JUROR: Yes, sir.
THE COURT: Do you understand the death penalty is not automatic in these cases, never any case. The jury has to consider all the testimony before they make that decision. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, you understand that the first phase, the guilt or innocence, the State has got to prove the murder beyond a reasonable doubt before we go to phase two. If the State doesn't prove the murder then not guilty is the verdict and the case stops right there, it ends. Do you understand that?
JUROR: No, sir.
THE COURT: All right. The State has got to prove and call witnesses to prove its case and is accusing Mr. Jones, he is presumed innocent, it is presumed he has not done anything. The State has got to show you the facts and evidence to support the accusations they are making against him. The accusations are for murder, five times over. The State has got to prove those facts and circumstances all to a burden of proof called beyond a reasonable doubt. So if you are convinced that he is guilty beyond a reasonable doubt then you would make a finding of guilt. If you didn't think the State has proven its case beyond a reasonable doubt then you could find a verdict of not guilty. That would be the instruction of the Court. Could you listen to the testimony and evidence and make a decision, consider the instructions of the Court at that time?
JUROR: Yes, sir.
THE COURT: Additionally, Mr. Jones has plead not guilty by reason of insanity, so he has brought another defense into play other than you can't prove it. Okay. Here are some statutory defenses that people could present. Accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are defenses that the parties can present if testimony is presented to support any of those. I would instruct you as to how to evaluate and consider those, that testimony and that aspect of the law. Do you understand that?
JUROR: Yes, sir.
THE COURT: Could you give meaningful consideration to my instructions on the State's burden of proving its case beyond a reasonable doubt and proving each and every element of murder as well as aspects of any defenses which the Defense presented on and give due consideration, meaningful consideration to those evidence and testimony and follow my instructions on the law. Could you do that?
JUROR: Yes, sir.
THE COURT: Could you be fair and impartial to both sides when you are doing that?
JUROR: Yes, sir.
THE COURT: All right. Now, like I say, if the State does not meet its burden of proof or you believe and found that the Defendant did not know what he was doing at the time of the crime, therefore he was insane. If you find that the case ends. If the State meets its burden of proving guilt of the murder the case goes to phase two which is the sentencing portion which we talked a little bit about. The jury has got to make one of two decisions, life or death, no other options out there once the guilt has been proven. The State has got to prove an aggravating factor to be entitled to say we are seeking the death penalty. An aggravating factor, making it an aggravating murder would be, murder of a policeman, murder of a child, murder of more than one person, rape of murder, kidnapping of murder. Those are aggravating factors. The State has got to prove one of those five beyond a reasonable doubt to then ask for the death penalty. Do you understand that?
JUROR: Yes, sir. Can I say something?
THE COURT: You may.
JUROR: I don't, not believe that is not the right word but not, I don't think that me, specially, these are my opinions, that everybody, no matter how bad is the case deserve the death penalty. That is me.
THE COURT: Okay. And that is some of the opinions I am looking for. So a type three has got to hear everything and they make that decision based upon what all has been presented. Now, aggravating factors I am going to give to you are presented in the punishment phase. So you hear aggravating factors but you also hear mitigating factors which kind of challenge the aggravating factors. Here is some mitigating factors. The Defendant had no significant history of prior criminal conviction 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 he 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.
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. The Defendant had mental retardation at the time of the crime. And any other aspect of Mr. Jones' life, if he came from a broken home, if he had a bad childhood, subject to abuse, any sort of thing like that. Those are mitigators meaning those can give jurors reasons to support a life sentence as opposed to a death sentence. Now, can you consider all aspects of the testimony whether it be aggravating circumstances or mitigating circumstances knowing the State has got to prove the aggravator beyond a reasonable doubt but consider the mitigating facts and consider those consistent with my instructions on the law on all of those factors and be a fair and impartial Juror in this case. Can you do that?
JUROR: Can you would make a question?
THE COURT: Yes you may.
JUROR: That means that if, it wasn't by influence or something. If I can make a point?
THE COURT: Yes.
JUROR: Yes.
THE COURT: Yes, you get to discuss in the jury room fully. Now, you got any religious belief, moral belief, personal belief that you could not impose the death penalty?
JUROR: Can you repeat that?
THE COURT: Do you have any religious belief, moral belief, belief in your heart personally that you would be not able to sign a verdict of the death penalty?
JUROR: Yes sir, I believe in religion and moral.
THE COURT: You could sign it or could not?
JUROR: No.
THE COURT: I want you to understand that the possible punishments that are on the table, life without parole and death. Do you have any religious or moral belief that you could not vote for a life without parole sentence. Could you do that?
JUROR: Can I say something?
THE COURT: Yes.
JUROR: It is a little bit difficult for me.
THE COURT: Okay.
JUROR: Why?
THE COURT: Tell me why.
JUROR: Because I believe in opportunities. I know these by what I heard is difficult is life involving but it is still difficult for me to punish someone at that point because we are not, we, our life, there is going to be s stop where we are going to change, our mind is going to change. We are not going to be that same all of our life. So that is mine.
THE COURT: I understand people grow, people learn, people have things happen to them. So, could you, do you have any personal belief that you could not impose a sentence of life? Can you impose a sentence of life if the facts supported it and the instructions were consistent with that?
JUROR: That means if I can't point that, to take a decision?
THE COURT: Yes.
JUROR: Maybe, like I said, it is going to maybe difficult for me to tell you now.
THE COURT: Okay, right. Because you don't know any facts. We are guessing. We haven't heard anything.
JUROR: Yes.
THE COURT: All right. I am going to go back to my other question. Do you have a belief, personal belief in your, in your heart that you would not be able to sign, if the verdict was the death penalty could you sign that verdict form. That is one of the requirements, each Juror, all twelve sign the verdict.
JUROR: I have got none, I have an option, right?
THE COURT: Life without parole is the other option, those are the two choices.
JUROR: Life without parole and death penalty, right?
THE COURT: Those are the two choices.
JUROR: Difficult for me but I hear, right. I think I can make a, I can sign for what I believe is the more fair.
THE COURT: Okay. Considering my instructions and the testimony and evidence you have heard?
JUROR: Yes, sir.
THE COURT: All right.
RICK HUBBARD: Your Honor, I wasn't real clear of the answer to that question on signing.
THE COURT: I will ask him again.
THE COURT: Do you believe, can you sign, if the verdict was unanimous to impose the death penalty, could you sign your name to the verdict form?
JUROR: Can I make a question?
THE COURT: Yes you may.
JUROR: To clarify maybe my understanding?
THE COURT: Yes.
JUROR: Of the question.
THE COURT: Okay.
JUROR: If was declared guilty?
THE COURT: Right, we are past guilty. Yes, the murder happened.
JUROR: Two options, death or life.
THE COURT: Correct.
JUROR: Like I said, I think it will be difficult for me to sign, I mean, I being honest.
THE COURT: And I want you to be.
JUROR: I going to be difficult, still difficult because I never being involved in this situation. And I believe on, believe in opportunities. Like myself, but it going to be difficult to sign because I got two options. But if that option is death penalty I have to sign it.
THE COURT: Yes.
JUROR: It is no option that I not going to sign that because I think I lean more on life without, I would have to sign whatever it was, the decision of the Court, right?
THE COURT: No. Here is what is unique about the Capital case. The jury first decides the guilt or innocence, whether it happened and he did it. That is done. You go to step two, in phase two the jury decides which punishment, life or death.
JUROR: The jury?
THE COURT: The jury does, the Court does not. If the decision of the jury was death could you sign, as a Juror, could you make a finding of the death penalty and then sign the verdict?
JUROR: Can I say something?
THE COURT: Sure.
JUROR: Like the movies, like it is twelve jurors, ten vote for something, two for, so I want to be one of those?
THE COURT: I am asking, the verdict to be a death penalty has got to be unanimous, all twelve have got to vote and all twelve have got to sign. Could you do that?
JUROR: I think so.
THE COURT: Now, the verdict for life without parole, twelve vote for it, the sentence is life without parole, could you do that?
JUROR: It is difficult but like I say, it is something that, it is difficult for me because I am not trying to be unfair with what I, by the book, the decision I can be against them.
THE COURT: You could.
JUROR: It is difficult, it is difficult for me.
THE COURT: If you made your decision, your personal decision on what you thought was right and different from someone else's could you talk with them and try to see their point of view and let them talk to you so y'all could exchange your views. Could you do that?
JUROR: Yes, sir.
THE COURT: Okay. But if y'all resolve your differences and the verdict was for the death penalty, could you sign?
JUROR: I have no option. I cannot refuse, right?
THE COURT: You can. Nobody can make you do something that you don't want, if it is your decision but if you understand the, because we haven't heard the testimony. Testimony is presented and your decision is that the appropriate sentence would be death could you sign that verdict form. Now, that means you have heard everything, all the factors.
JUROR: Can I say something?
THE COURT: Yes.
JUROR: I want to sleep good when I get home. I don't want to sign something that then see on the news that I was one of those--
THE COURT: No. Your name is not put on the news.
JUROR: No, no. No by name but by what my decision, it is going to be involving the person, you know, I want to feel--
THE COURT: Comfortable that you made, the decision is right.
JUROR: Because difficult case.
THE COURT: Oh, it is a difficult case.
JUROR: I don't have babies but I love kids and that is why I have three kids when I was young. I always wanted to be a father. I love kids, I was a father very young and I changed my life because of them.
THE COURT: Okay.
THE COURT: Mr. Secor.
CASEY SECOR: Yes, sir.
EXAMINATION By Mr. Secor:
CASEY SECOR: Hello, Mr. Alvira. How are you?
JUROR: Good, nervous, cold.
CASEY SECOR: I am nervous too. These are difficult questions and I appreciate you being so honest with us. One thing that I want to make sure that you know and tell me if you don't know this, that you can be or you can have religious or moral opposition to the death penalty. You can say my religion or my morality doesn't agree with the death penalty. But you can still be on the jury. Does that make sense to you?
RICK HUBBARD: Your Honor, that's not a correct statement.
CASEY SECOR: It is exactly a correct statement of law.
THE COURT: No, no. I think the Court has made a determination that he can read, write or at least speak and understand the English language. That is a determination that I made and he can.
CASEY SECOR: I didn't ask anything about that, Your Honor.
RICK HUBBARD: The question was on his moral and religious beliefs, that you can have religious beliefs that an opposition of the death penalty can still be--
BOYD YOUNG: Your Honor, can we be heard on the record.
THE COURT: All right, step outside real quick. I have got to put something on the record. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, I thought he had a language barrier at issue. I think I would rather you go first on this witness because I think he has answered all of my questions. And I don't think, I will let them come second. I think this is a good one for you to go first.
RICK HUBBARD: All right.
THE COURT: Mr. Secor, do you have any objection to that?
CASEY SECOR: Yes, sir.
THE COURT: Why is that?
CASEY SECOR: Well, I just began, Solicitor Hubbard said I made a mistake of the law which is one-hundred percent incorrect.
THE COURT: Don't get personal on me.
CASEY SECOR: I am not, I am just stating what happened.
THE COURT: Okay. I spent a lot more time with this Juror than any other Juror we have had in here because of the language issue.
CASEY SECOR: I would just say State v. Sep, 366 SC--
THE COURT: All right, why, why, what is it?
CASEY SECOR: For the proposition that the exclusion of a venire person simply because there was general objection to the death penalty or perhaps conscientious or religious scruples against its infliction is unconstitutional. The State versus Sep, 366 SC--
THE COURT: And I think that was one of the questions that I asked him to determine his qualification. So far, I think he is qualified so far. Maybe it would be better for the State, who, I mean, am I wrong, y'all kind of like the guy. It is obvious.
CASEY SECOR: I agree that he is qualified but I take issue with the State saying in front of him that I made a misstatement of law when I did not.
RICK HUBBARD: Your Honor, the question that I heard was, did you know you can be on a jury, death penalty case even though your moral and religious views were opposed, your personal views, you are opposed to it. You have asked that question, every Juror, do you have any religious or moral reasons why you can't be fair to both sides and that would absolutely make him unfair, make him unqualified. We never got an answer but that question was wrong.
THE COURT: Well, I thought he has been asked that question multiple times is can you do that. And he has said it would be difficult numerous times but he could do it.
CASEY SECOR: I agree and Your Honor asked him numerous times if he could sign the verdict form and he said numerous times that he could.
THE COURT: Correct. All right, I understand you don't like, I am going to clear that up with him and I am going to let, whichever one the State's going first and then you come back and follow it up. I will tell him, I made a mistake, it was their turn, I will claim that mistake with this gentleman.
CASEY SECOR: I will just say that it doesn't require any further questioning from anybody, he is qualified.
THE COURT: I am going to let Solicitor Hubbard, whoever it is. Who is it.
RICK HUBBARD: Yes, sir.
THE COURT: Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Alvira, be seated back again. I was distracted, I was writing down something you said and taking my notes and I called on Mr. Secor and that was, he is suppose to ask questions secondly. Solicitor Hubbard was suppose to go first asking you questions. Both attorneys may get an opportunity to ask you questions. Okay. Answer their questions the best you can, they are looking for candor and truthfulness. Okay. All right.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: How are you, sir?
JUROR: Good, yourself.
RICK HUBBARD: If there is anything that I ask and you have a question about and you need me to reask it phrase it a different way I will be happy to do that.
JUROR: All right, thank you.
RICK HUBBARD: I am sure this is probably your first time serving on a jury?
JUROR: Yes, sir.
RICK HUBBARD: It is pretty new and a big case?
JUROR: Uh-huh.
RICK HUBBARD: The Judge went over different types of jurors with type one saying, when there is a murder I don't need to hear anything else, it is death. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: On type one.
JUROR: Yes.
RICK HUBBARD: It is always death, they don't want to hear anything, they are done. Type two is always life and they don't need to hear anything else. Type three is a Juror, when they go back in that Juror room, they want to hear everything, have heard everything, good and bad and each Juror can give life or death. It is always going to be difficult, it is always going to be hard.
JUROR: Yes.
RICK HUBBARD: Before a jury can sit over here they don't know anything about the facts, before they can sit here they have to be able to say, you know, I can do it. I can give life but I can also give death. Nobody tells these jurors what to do. Do you understand that?
JUROR: Yes.
RICK HUBBARD: They are not required to do anything. Do you understand?
JUROR: Yes, sir.
RICK HUBBARD: So the jurors who sit in this box get to decide if someone gets a life sentence or death, nothing is required. Do you understand that?
JUROR: Yes, sir. I have no problem with taking this issue but it is against, not by, because I am going to be clear. No matter I believe God or not, I serve God or not, no matter it is a moral or not, I think it is about me. Who I am.
RICK HUBBARD: Yes.
JUROR: Who I pick or choose how to treat people. Something I have been taught, I don't like to happen to me either. I don't want, nobody, like example, in my car but I don't want to hit nobody's car but I don't want nobody hit my car either. So in this situation I can't sign and but I can, but the thing is, it is not something, to be honest with you I don't want to do it. I getting more specific, I don't want to be involved in this situation.
RICK HUBBARD: Right.
JUROR: And I feel bad about if I pick the wrong decision is not, it is not, it is an option to pick a decision but it is something that I don't want to do. It look like that nobody grabbing me by the neck, y'all or grabbing by the neck to pick a decision. That is something that I don't feel comfortable, I am not mad or I feel that way. I have no problem with, to pick one of those but the problem is I don't want to do it, I don't want to pick both. I want y'all to, I don't want that to fall on me.
RICK HUBBARD: You don't want to pass judgment?
JUROR: Yes, sir.
RICK HUBBARD: And because you are not a person that wants to judge other people and you don't want to be judged?
JUROR: I believe in, I was a drug addict.
RICK HUBBARD: I see.
JUROR: When people not believe in me, you know. And I not like, that wasn't my type of life but I, facts changed, I never been in rehab, I never was in intoxication because it was with power and I was since 1995, I quit, I say no more. But because, like I said, I love kids. When I was 23 I was with three babies in my house, boys, all three. So I changed because of them so I had opportunity, I know this is difficult situation and I think nobody deserves, especially kids, to, you know, but I think, I have not been one, like I said, thank God I never was violent. But I am not that God, I am not that God who, no matter how he did, I am not the one who a God that has got work to punish someone.
RICK HUBBARD: That is God's work to punish someone?
JUROR: Yes.
RICK HUBBARD: Not yours?
JUROR: I feel it is not my responsibility. I want to say something else. I do maintenance that is my stronger of what I can do. That is what I can do. But I tried to study human resources, I went to college and because I liked to talk with people, I not change no one, nobody can change no one, nobody. And then it wasn't for me because, I am not good at math.
RICK HUBBARD: I am not good at math either.
JUROR: But so I started study social worker because to try to heal myself and this is something that has made me uncomfortable or to the point that I don't want to do it. I believe, like I said, I am going to be open. While my son, boy, was in jail and, you know, and he is out and I join him now and my wife and I love him. I don't like what he did but I think, like I said, this is something complicated for me. Maybe I not the guy, the right guy for you because--
THE COURT: All right, let him ask questions.
RICK HUBBARD: Based on your life experiences and all of the things you went through do you feel like, in following up your answers, do you feel like you can't pass judgment in this case?
JUROR: Well, I have got one here. Since I heard, I got mine but not that brutal or that, I got my judgment since I heard the, I got my judgment but not that strong, I don't know the work for it.
RICK HUBBARD: Let me ask you this. When a person is convicted of murder and the State is seeking death and these jurors go back and they decide, he committed a murder. We go into that next phase. The only options are life where he dies in prison or death where the State puts him to death. Are those two options something, because of your past experience, neither one of those are suitable for you, that you can't pass judgment?
JUROR: Maybe with this I can, every, the decision that we make has consequences.
RICK HUBBARD: Sure.
JUROR: I believe that if we create, we do violate the law that is punishment. In this case I think but I believe need some punishment but not those. I be more clear I think now.
RICK HUBBARD: So something less than life?
JUROR: Yes, I think that is, without parole.
RICK HUBBARD: Right.
JUROR: Like I say, he is not going to be that same all of his years, he going to change one point.
RICK HUBBARD: He would not have opportunities in the future to change and turn his life around.
JUROR: Yeah, because there is two option on his, for life until the health or his life die or that. That is too much.
RICK HUBBARD: Well, I appreciate your honest answers and there is not a right or wrong answer.
JUROR: I feel free, I feel good but thank you.
RICK HUBBARD: Thank you for explaining it that life and death, both of those are too harsh for you?
JUROR: No matter.
RICK HUBBARD: No matter what.
JUROR: Uhmmm (yes.)
RICK HUBBARD: Thank you so much.
JUROR: You are welcome.
THE COURT: Okay.
EXAMINATION By Mr. Secor:
CASEY SECOR: I just have a few more questions for you, Mr. Alvira. Is that okay?
JUROR: Yes, sir.
CASEY SECOR: In a case like this you and the other jurors, at the first phase would be asked to decide if a person is guilty or not guilty and you understand that?
JUROR: Yes.
CASEY SECOR: And you said earlier, I think, that you believe in justice?
JUROR: Yes, sir.
CASEY SECOR: You believe that people need to be held accountable when they are guilty of crimes?
JUROR: Yes, sir.
CASEY SECOR: And although it might be difficult or uncomfortable, if you were on a jury and you and the eleven other jurors believe that the person was guilty of the malicious murder of multiple children you could find that person guilty?
JUROR: Yes, without mentioning the punishment.
CASEY SECOR: I understand, yes. But you could find him guilty. Now, by finding him guilty that would mean that you and the same eleven jurors would have to go to the second trial, the penalty phase, as the Judge described. Right?
JUROR: Yes.
CASEY SECOR: And during that penalty phase you hear all the evidence that is presented by the State and by the Defense. The State would be trying to convince you that death is the right punishment. You would also be able to consider anything and everything about the convicted murderer that you decided you wanted to give a life sentence for. And if you believe, based on your morality, that life in prisonment without the possibility of parole was appropriate you could sentence him to life without parole?
JUROR: I can make a decision, I don't want that.
CASEY SECOR: Of course and I don't think anybody would want to be in that position, it is a very difficult position, I agree with you. But it is important that we have thoughtful people like you willing to do it, willing to make the sacrifice because it is hard. And in that case, that same case where you could vote for life without parole, is you thought it was appropriate, if you based on your own individual morality believed that death was the appropriate punishment, for you, you could sentence that person to death if you thought it was the right thing to do?
JUROR: Like when I sentence him to death penalty? It is still the same question. For me it is no, to be honest with y'all, y'all are going to make me take out a decision that is not, I don't think I know what you mean, that he be served, because I agree the aggravation of the case.
CASEY SECOR: Yes, sir.
JUROR: That is two things, life, no parole, that is going to be, like I said at the beginning. He is going to be until his last breath, he is 40 or 30, he can be 90 and he can reach 98 or until the life, life or death. But it is, like I say, I, I am not the one, I am the wrong guy for, I know you are going to continue doing the same question and I am going to give you the same answer.
CASEY SECOR: And I hope I am not being disrespectful.
JUROR: No, no, no, no.
CASEY SECOR: And you are entitled, of course, to your personal opinions and your personal opinions are all that matter.
JUROR: Even I think, it is hard to say but I kind of through that, even with my family I didn't act like that with that, even to my family I wasn't that because I have been through a lot, no matter is now, I didn't never did something wrong, bad. But even those ones who try to damage my family, especially on my orders on the, even I was not anything like that because I have pacify, I am not, no matter I used to fight, I used to go with my, we have to go through this on how to deal with the problem because you fight. But not, it is, I don't--
THE COURT: All right, ask your next question.
CASEY SECOR: I guess the ultimate thing that we need to know is, if you thought that life without parole was the right sentence could you vote life without parole, if you thought it was the right thing?
JUROR: Well, he got maybe opportunity inside there to, he will never be out but I think he can change inside there.
CASEY SECOR: Yes, there is a possibility of redemption in prison, right?
JUROR: He is not going to be out, but.
CASEY SECOR: And then the only other thing is that if you, just yourself, you thought that death was appropriate based on everything you heard and you considered everything and you said, my individual decision, my individual morality says that death is right. There would be a line for your name. And all the Judge needs to know is whether or not you could put your name on that line saying death, if you thought it was right?
JUROR: It is that why he, so--
CASEY SECOR: You would have to decide that.
JUROR: Okay, I can sign.
CASEY SECOR: Okay. Thank you, sir.
JUROR: You are welcome.
RICK HUBBARD: Follow-up, Judge.
THE COURT: You may.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: You have talked about opportunity and that is the big issue you have had with punishment. And with life, you had earlier mentioned something less than life would be more suitable to you or said something to that effect. So they had opportunity, right?
JUROR: Yes, sir.
RICK HUBBARD: Didn't you mention or maybe during prison or maybe there is some opportunity in prison even though they are going to die there. Is that right?
JUROR: Repeat that again.
RICK HUBBARD: Yes, sir. And then when asked about the question about the Defense about serving life until you die in prison, maybe there is some opportunity in prison?
JUROR: If that were I lean, for what I said, but I know the options and I think that is the best.
RICK HUBBARD: With death there is no opportunity?
JUROR: Yes.
RICK HUBBARD: And so would your past experience and belief about giving someone an opportunity, making sure they have a chance to change, in light of your experience, in thinking about that could you not -- death then?
JUROR: No, no I am not, no.
RICK HUBBARD: Because there is no opportunity to change?
JUROR: I am not the one who take that, it is, whoever, about death?
RICK HUBBARD: Yes, sir.
JUROR: It is God or, it is one itself, yourself, not someone else.
RICK HUBBARD: It is suicide or God?
JUROR: Yes, sir.
RICK HUBBARD: Okay.
JUROR: Because of free will.
RICK HUBBARD: Free will. Thank you, sir.
JUROR: You are welcome.
THE COURT: Step out real quick and we will put something on the record and have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Solicitor, let me hear from you and then I will hear from Mr. Secor.
RICK HUBBARD: Your Honor, this is a man who has tried very hard to explain himself. I think the difficulty, he kept talking about opportunity. When he explained that he made it clear that because of the breaks he got in life, the changes he was able to make, he got a family out of that and he experienced good things. He thinks everyone should have that light at the end of the tunnel. He mentioned initially with me, both life and death were too harsh even in a bad case. The Defense said, well, could you sign life and put him in, vote for life. And then he conceded that maybe there is opportunity in prison. What he finally comes down to, what he finally has explained, is that with death there is no opportunity. And only God can take a life or the individual can take his own life. That he is not that man therefore, Your Honor, I think he is disqualified. He has been all over. Initially when you were talking to him I think he had the impression that he was going to have to do something even though Your Honor was taking pains to explain--
THE COURT: I remember, you don't have to review my questioning of him.
RICK HUBBARD: That is where, ultimately, where we are. When it comes to death only God can take a life or a man can take his own life but he won't.
THE COURT: Okay, let me hear from Mr. Secor.
CASEY SECOR: Your Honor, based on numerous questions from Your Honor as well as from the Defense, Mr. Alvira certified numerous times that he could vote to impose sentence of life without parole and he could vote to sentence a person to the death penalty including and up to the point where he would sign his name on a verdict imposing the death sentence. He did state it would be difficult for him but I would hope that would be the case for every Juror. He is qualified under every standard articulated by the United States Supreme Court and South Carolina Supreme Court. The State has not articulated legal grounds for his disqualification and his disqualification, given the fact that he has given entirely qualified answers, his disqualification would be akin impaneling a jury uncommonly willing to--
THE COURT: Okay, you don't need to give me all the law. I mean, just tell me what you think rather than reading that. You are reading off law. Tell me why he should be qualified.
CASEY SECOR: He should be qualified because he gave qualified answers. The State's ultimate question, when they want to get a Juror to say that they are going to, unable to sentence the death, they always ask the question of whether they can put their name on the line on the death verdict form. Mr. Alvira on numerous occasions said that he could do that.
THE COURT: I think he said twice.
CASEY SECOR: Well he said one to me and I think he said it twice to Your Honor.
THE COURT: I am considering once to you and I thought he said once to me. All right. I don't want to hear any more. He gave a variety of answers that were inconsistent but totality of the circumstances, particularly my question of him, I think he is qualified. He is difficult, he is not going to be talked out of his, once he makes his decision he is going to be a solid guy. I think he is qualified, I think the language challenge was a challenge for us all but I think he is qualified. And I understand he is different than the girl but he is very, he is qualified.
CASEY SECOR: Yes, sir.
RICK HUBBARD: Just for the record, I know Your Honor has a tough job, I get that. And the whole time you were questioning him, what I gathered was, he kept talking about opportunity. He finally explained that with me. But that final explanation, he can't take, he said I am not the guy to give death. Only God can give death or the individual. Judge, I,--
CASEY SECOR: I object under Rule 18.
THE COURT: All right. Your objection is noted for the record and bring him in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Alvira, the Court has made a determination that you would be qualified as a Juror. So what I want you to do is remember your oath to not talk about the case with anyone, not let anyone talk about the case with you, do not do any independent research, do not read any of the social media or public media. Study the website under qualified jurors. It will tell you, please check back, please check back and finally tell you when to report back to the courtroom. It will probably be one day earlier next week. Can you do that.
JUROR: Yes, sir.
THE COURT: Okay. See you next week. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 363. (Whereupon, Juror 363, Johnny Rowell entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing, 363. Mr. Rowell.
JUROR: That's right.
THE COURT: Can you spell your first and last name for Ms. Holston's record.
JUROR: J-O-H-N-N-Y; R-O-W-E-L-L.
THE COURT: All right, Mr. Rowell, I put you under oath Monday to not talk about the case and now has anybody talked to you about the case. Has anybody done that?
JUROR: My boss, that's it.
THE COURT: And have you told him you are coming to jury service?
JUROR: Yes, sir.
THE COURT: Did you discuss the case any further than that?
JUROR: No, sir.
THE COURT: There has been a lot of media attention on this case, social media, public media, I gave facts of the case on Monday about some allegations occurred and facts in this case. Have you heard those?
JUROR: No, sir.
THE COURT: Well, you heard what I said?
JUROR: Yes.
THE COURT: But you have not paid any attention to the media?
JUROR: No, no.
THE COURT: Have you made a decision or formed an opinion as to what you believe happened in this case?
JUROR: What do you mean.
THE COURT: I mean, I told you the allegations that the State are making is that there are five murder charges against Mr. Jones involving five children. Have you made a decision or formed an opinion on this case based upon that?
JUROR: Yes, sir.
THE COURT: Now, what is your opinion that happened in this case?
JUROR: Well, I read the statements out there.
THE COURT: Okay.
JUROR: Is that what you are saying?
THE COURT: Yes.
JUROR: Number one.
THE COURT: You are number one?
JUROR: Yes.
THE COURT: Okay. Now, let me go back and review this a little bit. If you were put on the jury or a typical Juror on a case like this, if the State proved guilt, proved the murder, the State proved an aggravating factor, mitigating evidence was presented to you, would you consider all of that in making your decision or is your mind pretty much--
JUROR: My mind is pretty much made up.
THE COURT: And so you are number one?
JUROR: Yes, sir.
THE COURT: Fair enough. You are excused. Thank you.
JUROR: Yes, sir. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring me 273. (Whereupon, Juror 273, Gail Massaro entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ma'am.
JUROR: Good afternoon.
THE COURT: I will remind you you are under oath. Can you spell your first and last name for Ms. Holston's record.
JUROR: Gail, G-A-I-L; Massaro, M-A-S-S-A-R-O.
THE COURT: Ms. Massaro, my name is Eugene Griffith, I met you Monday and introduced myself and I gave you some instructions on the case a little bit then, some this afternoon. Have you talked to anybody about the case since Monday when I told you not to discuss the case?
JUROR: I did not but I work in an office, I am a nurse, I work in an office with all women. And the first thing I went in on Tuesday morning, they blasted me and I had to excuse myself. They were around me but I didn't talk about the case.
THE COURT: They were asking questions and you didn't respond?
JUROR: I did not.
THE COURT: Now, I gave a summary of allegations made by the State which were made in the indictments which say the State is making accusations against Mr. Jones of five counts of murder. There has been publicity in the case that you may have come across before Monday, early weekend, a couple of years ago, even since. Have you received any information from me, public media, social media, anywhere which has caused you to form an opinion as to what happened in this case already?
JUROR: Yes, I have heard information and, you know, initially formed an opinion. But, yes, but I haven't heard all the facts.
THE COURT: I gave you a little preliminary summary, the court procedure, criminal procedure as to the case, it is a Capital case, they have to prove the first half in order to go the second half. Have to prove the first half beyond a reasonable doubt. Do you understand?
JUROR: Yes.
THE COURT: And then the second half the State has got to prove an aggravating factor as well as, the jury has to consider mitigating facts.
JUROR: Yes.
THE COURT: I gave you a little summary of the types of jurors?
JUROR: Yes.
THE COURT: Can you identify yourself as one of those three types?
JUROR: I am a type three.
THE COURT: Type three is somebody who wants to listen and hear everything?
JUROR: Yes.
THE COURT: Hear all of the evidence. Mitigating facts, aggravating facts, hear everything?
JUROR: Yes.
THE COURT: You tell me you are a nurse, the subject matter in this case involves the description of death of children. Would that subject matter affect you in any way, knowing it is going to be graphic, unpleasant and probably difficult to listen to. Can you be fair and impartial to both sides considering that type of subject matter?
JUROR: It is very hard for me because I have seen a lot in my nursing career.
THE COURT: Okay. But could you be fair and impartial to both sides?
JUROR: I could try.
THE COURT: Considering that, I want your fair assessment that that is going to be--
JUROR: That is going to be difficult for me.
THE COURT: Could you be fair and impartial to both sides?
JUROR: No.
THE COURT: You couldn't?
JUROR: If I saw pictures, no, I could not.
THE COURT: All right. So you are not going to be able to kind of sort out--
JUROR: If I saw pictures I could not do it. It would bother me.
THE COURT: So you are not going to be able to consider that type of testimony, that would be too graphic for you?
JUROR: Yes, sir. Yes, Your Honor.
THE COURT: Anything further?
RICK HUBBARD: No, sir.
BOYD YOUNG: No, sir.
THE COURT: Ma'am, I am going to excuse you for that reason.
JUROR: Thank you.
THE COURT: Thank you very, very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 496. (Whereupon, Juror 496, Antonio Wright entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Are you Mr. Wright?
JUROR: Yes, sir.
THE COURT: Mr. Wright, spell your first and last name for the record, please.
JUROR: A-N-T-O-N-I-O, that is Antonio. And Wright, W-R-I-G-H-T.
THE COURT: Mr. Wright, I had you in court Monday, placed you under oath and told you not to talk about the case with anybody?
JUROR: Yes, sir.
THE COURT: Have you talked about the case to anybody?
JUROR: No, sir.
THE COURT: Has anybody tried to talk with you about the case?
JUROR: Yes, sir. But I have not answered any questions, I can tell you.
THE COURT: Fair enough. The case received a lot of media attention, a lot of publicity. I told you the, read you the indictments of the five allegations of the murder indictments. Based on any information you have received, whether it is from me, from any of the publicity received this week or last week, any time, have you formed an opinion as to what you believe happened in this case?
JUROR: No, I actually haven't.
THE COURT: Do you understand that you are going to wait and hear what happened from the witnesses in the case?
JUROR: Yes sir, I understand.
THE COURT: Fair enough. Now, this case involved a lengthy trial. So what is your work schedule like starting next week to the next two to three weeks after that.
JUROR: I am working, all of next week and I should be continuing work throughout those weeks.
THE COURT: What do you do?
JUROR: I am actually masonry. I work for Brickland.
THE COURT: So you are a Mason by trade and training?
JUROR: Yes, I am still training.
THE COURT: Still training?
JUROR: I am trying to become, yes sir.
THE COURT: You are one of the mud men right now?
JUROR: Yes.
THE COURT: Okay. I have mixed mud.
JUROR: You have?
THE COURT: Yes.
JUROR: Oh, yeah, it is hard work.
THE COURT: You doggone right it is.
JUROR: Yes, sir.
THE COURT: All right. So who do you say you work for again?
JUROR: I work for my Uncle actually, he owns his own company, his own company.
THE COURT: If you are selected as a Juror that would be your hurtle in getting through work, around work with dealing with your uncle if you are selected as a Juror. Is that right?
JUROR: Yes, sir.
THE COURT: Now, this case involves testimony which will be graphic, difficult, harsh and unpleasant because it involves descriptions of testimony about the death of some children. Do you understand this testimony will be difficult and harsh to hear?
JUROR: Yes sir, I understand that.
THE COURT: Understanding that the subject matter will be testimony in that regard, that subject matter, can you be fair and impartial in spite of that difficult and unpleasant testimony?
JUROR: To be honest, sir, I don't think so because I don't like to hear things like that.
THE COURT: You couldn't listen to testimony like that and be fair to both Mr. Jones and the State?
JUROR: I couldn't, I am going to be honest with you, I couldn't. That is not very, I don't like that topic.
THE COURT: Okay. It is going to be no fun, it is going to be unpleasant.
JUROR: Yes, sir.
THE COURT: You couldn't listen to that testimony?
JUROR: I could not.
THE COURT: I am going to excuse you. It is going to be tough testimony, I don't want somebody to get half way through and say, I can't take it.
JUROR: Yes, sir. I am telling you right from the beginning I don't think I can take that.
THE COURT: I am going to tell you right now, you are free to go.
JUROR: Yes, sir.
THE COURT: Thank you and good luck on your masonry.
JUROR: Yes sir, you have a nice day. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We are done for the day. Start back anew. I got an email from an attorney thirty minutes ago describing a Juror who talked to the attorney and said some things, talked to somebody but they were very couched then, the friend talking with the attorney, very close nit, don't have a name. I think the attorney does but they were concerned and wanted some guidance, spiritual advice and that sort of thing, I am involved or may be called as a Juror and I think I told them some things in Monday's questioning. But it involves the death penalty. So he is kind of included in, probably this trial and one of our potential jurors. Didn't tell me the name but I will forward this to you if y'all want to see me. Didn't give me a name but you are welcome to read it. I think that is going to be, have you talked to somebody about the case type of question that is going to come up but I wanted to get y'all's, alert you to it. I wrote him back and thanked him for the email but I, if y'all want me to write him back and ask for the name of them I will. I didn't at this time but I will. So y'all think about that and we will do that. We are on the same schedule for the morning, 8:30, 11:30, 3:00, same deal.
RICK HUBBARD: I do have one thing I wanted to ask Your Honor. A while back we were talking about the Defendant getting evaluated by Dr. Frierson. There was the issue about the psychologist, Dr. Kimberly Kruse. And we said that we weren't going to give underlying data. What we have done, is we have even stepped back even further and so far, Judge, we have not even had a sit down with her or seen her actual report, not her underlying data but obviously we are going to need her in this case, would need to talk to her. The underlying data, at that point it might be relevant for us but otherwise all I am looking to is talk to Dr. Kruse and actually have her report. Dr. Frierson said to really understand what he has got you need to see what she has got.
THE COURT: I think that would be allowed and certainly everybody is wanting to see her report.
BOYD YOUNG: I think that is what would happen. They can do what they want to. Your Honor, I would ask to instruct the Solicitor to stop signaling to the Juror, he sits there and shakes his head when he is like what they are saying--
RICK HUBBARD: Your Honor, I don't know what he is talking about. I have taken a lot of hits today, I am communicating with jurors, bigot and I have about had it. I am not the only person in this courtroom listening to stuff but I sure as heck have a bulls eye on my back.
THE COURT: I haven't noticed that, Mr. Young, at all. I noticed when I look at y'all and I am stopped in the middle and know it is a good place to stop, with the jurors, y'all both give me signals and I thought that was some of the signals from the Defense table as well as the Prosecution table. If I see it, certainly I will call it but I have just not noticed that.
BOYD YOUNG: Sure.
THE COURT: And so we will see y'all in the morning.
BOYD YOUNG: Thank you.