1.Jury Selection
3,228 linesMay 7, 2019
THE COURT: We have them all here. Bring them in. (Whereupon, Juror 74, Sylvia Cannon; 146, Stacey Foster; 287, Melvin Jonas; 314 Judy Nixon; 96, Toni Clark; 89 Nathan Chapman; 426, Doris Taylor; 156, Zachary Gantt entered the courtroom.)
THE COURT: Good morning to all of y'all. Thank you for being on time. That was a great surprise, y'all were the first group, thank you very much. We are ready to go. Here is what is going to happen. I am going to give you some preliminary instructions. I am going to read to you virtually the exact that I have read to the other groups who have come in before. And then we are going to excuse you, put you in the back and let you read over a witness list and another sheet describing the types of jurors and then bring you in one at a time and then say, okay, here, I need to ask you about some of your personal feelings, personal beliefs. So it is some opinions you may have. So you will be under oath, so give honest answers. Some of them are your opinions so there is really no wrong answers. So with that in mind, I will also ask you about your personal schedule and interference with that to see what you have got on the horizon for the next several weeks. And we will deal about that, questions about your personal beliefs and then we will move on from there. Okay. Now, I don't want, because one of my questions, early questions is, there has been publicity, I am going to ask you about that. So I don't want y'all discussing in the back and say, well, we have just discussed it. So don't talk about the case in the back this morning. Plenty of time for that if you are selected as a qualified Juror. I don't need you discussing things this morning, when I ask you the question, I am asking everybody the same lines of questions and the lawyers follow up with the same line of questions which you will be under oath. So if y'all as a group will stand and the Clerk of Court will place you under oath.
(WHEREUPON, the jury was sworn at 8:33 a.m.)
THE COURT: Thank y'all for doing that. Y'all can be seated. Sometimes it is a little bit repetitive but 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 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. 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 each element of the crimes he is charged with. The State must prove those elements, each and every one of them to 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 phases potentially. The guilt or innocence phase and if necessary the punishment phase. In 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 the murder then the trial proceeds into the second phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury considers the aggravating evidence 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 the execution of a person if the 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 a murder and an aggravating circumstance jurors are required to consider any mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. Even if no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to impose a life without parole sentence then a life without the possibility sentence is carried out. 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 an aggravating factor, evidence of mitigation which are any reasons to vote for a sentence of life without parole. Evidence of 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 the exact instruction of the law I will give on each of these. But I will ask you when you come in, will you be able to accept and give an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider all evidence consistent with those instructions. That will be the question posed to you when you come back in. Now, retire to the jury room. As you are called up you will be given the witness list, peruse that as well as the types of jurors and then when you are ready and have enough time to peruse it we will get you in here one at a time. So step back in the jury room, thank y'all for being prompt. (Whereupon, the jurors were excused from the courtroom.)
RICK HUBBARD: Your Honor, I would move for the State to go first on this panel, we have had eight panels and we have been playing backstop the whole time.
THE COURT: Y'all want to be heard on that, the Defense?
BOYD YOUNG: Yes, sir. We think that the statute says that the Defendant has the right, the State's right is derivative and we should go first.
RICK HUBBARD: Your Honor, as the discretion, it has been done before, basically every other case. It is at Your Honor's discretion.
THE COURT: I don't see any prejudice to let the State go first so I am going to let the State go first on this panel and if it works out, may go back the other way. But we will see how that goes, I will let the State go first.
RICK HUBBARD: Thank you, Your Honor.
THE COURT: Bring 74 in. (Whereupon, Juror 74, Sylvia Cannon entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Ms. Cannon.
JUROR: Good morning.
THE COURT: Ms. Cannon, I gave you some preliminary instructions and I remind you, you were placed under oath today. You were placed under oath Monday to not discuss the case. I am asking every Juror the same question out of the box. So not that, I don't want you to take offense to it. Have you discussed the case in any way since Monday?
JUROR: No.
THE COURT: Has anybody tried to discuss the case with you?
JUROR: No.
THE COURT: And other than telling your family, I have got to go to court, something along those lines, have you not discussed it in any manner whatsoever?
JUROR: No.
THE COURT: All right. There has been publicity in this case since Monday, before Monday, several years ago, social media, regular media. Also I read the indictments to you Monday in open court. So at least those facts that are being alleged by the State have been presented to you. Have anything you have heard about this case, up to this point, caused you to form an opinion as to what you believe actually happened?
JUROR: No.
THE COURT: So you have not formed an opinion about what has happened?
JUROR: No. Just, I don't know.
THE COURT: But you have heard the allegations.
JUROR: Yes. I heard stuff and when I saw it on the news, I turned the news, I looked at the paper, I didn't read it but I just, it just breaks my heart. I just, I don't know.
THE COURT: I understand.
JUROR: And I am so emotional. See, I am about to cry now.
THE COURT: All right.
JUROR: I am real emotional.
THE COURT: And understand, Ma'am, that is perfectly natural and fine.
JUROR: I take medicine, I am emotional. I am sorry, y'all. I am so emotional.
THE COURT: Now, if you want to discuss some health issues perhaps we will do that but we will do it on a very limited basis. Okay. Because I don't want you to say anything that you are uncomfortable saying in front of the court record and the lawyers, okay, about your health or anything like that. We might can take that up a little more privately but still on the record. Okay?
JUROR: Okay.
THE COURT: Now, understanding this, that this subject matter involves the death of children. And the testimony will be about that, the testimony may be difficult, unpleasant and graphic and, it has been described to me as harsh and tough.
JUROR: Yes.
THE COURT: I don't want to represent to you that it is going to be easy to consider.
JUROR: Yes, sir.
THE COURT: Understanding that is the subject matter that will be presented during the trial, is that subject matter going to be difficult for you to consider but also consider and be fair and impartial to both the State and the Defense?
JUROR: Yes, sir. It is going to be difficult for me, real difficult. I am really emotional.
THE COURT: Do you have children?
JUROR: Yes, sir.
THE COURT: Grandchildren?
JUROR: No, sir.
THE COURT: Not yet?
JUROR: Not yet. I just have two kids, that's all.
THE COURT: Okay. Now, do you think in light of that type of testimony you can be fair and impartial to both sides or not. That is kind of the opinion, there is no wrong answer here. Okay. I am not trying to talk you into one way or the other. Tell me about that.
JUROR: I probably going to be no good to, to be no Juror. I am sorry, I just can't.
THE COURT: You don't think you can fairly evaluate the testimony if that is what it is about?
JUROR: No, sir.
THE COURT: Should we keep going further?
RICK HUBBARD: No, sir.
BOYD YOUNG: No, sir.
THE COURT: Generally the lawyers and I, I am communicating with them by looking at them and I have had a few jurors just like you that, says that is really difficult for me and I couldn't, that is good enough for me.
JUROR: Okay.
THE COURT: All right. I am going to excuse you from being a qualified Juror.
JUROR: Okay.
THE COURT: I would rather you not talk about the case.
JUROR: I am not.
THE COURT: I wish you well and enjoy Mother's Day.
JUROR: Thank you, sir.
THE COURT: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I wanted to make sure y'all are okay with my inquiry back to you, her emotions were not false. That was real stuff, the way we managed that, is that okay with both sides. If y'all want a little more questioning of her I will let y'all do it. But I was comfortable that she was not going to be able to do it.
RICK HUBBARD: Your Honor, our position, obviously you are closest, you did the same thing to the school teacher. I believe it was the first panel, the emotions. That is your call, Judge.
THE COURT: Are y'all okay with that, Boyd?
BOYD YOUNG: Yes, sir. We had requested to be able to show some pictures. It is going to be really hard.
THE COURT: Okay, good enough. I will keep managing in the same fashion and go that route. Okay. We are good. Bring in 146. (Whereupon, Juror 146, Stacey Foster entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: All right, Ma'am, you are Juror 146. Can you spell name for my Court Recorder for Ms. Joy.
JUROR: Sure. First name, S-T-A-C-E-Y; last name, F-O-S-T-E-R.
THE COURT: All right. Ms. Foster, I ask the same jurors the same questions generally in the same order so that I have a little pattern about this. But you took an oath Monday to not talk about the case and not let people talk to you about the case. Have you talked about the case to anyone?
JUROR: Only about the potential absence from work.
THE COURT: Okay. And that is with our employer?
JUROR: Yes.
THE COURT: All right. Anybody ask you questions about the case?
JUROR: No, not really.
THE COURT: Now, and my hope that you will maintain that oath and not discuss the case in any fashion whatsoever.
JUROR: Yes.
THE COURT: I told you I would ask you about your work schedule. So what is your work schedule, personal schedule. I am hopeful to get the jury qualified, enough folks this week perhaps select the jury late this week, early next week and the trial will start and it will go for two weeks, a little more, maybe into early June. What is your personal schedule of those weeks?
JUROR: I have a commitment May 17, 18 and 19th, non-refundable. I am basically solely responsible for something we are planning with my job that jumps off June 27, 28, 29. It is a big, like educational networking event. We have like 75 speakers, we are open to have a thousand attendees this year. So I am the one coordinating and promoting all of that. And then as a reward for that, in July, I have my first vacation in five years, also non-refundable.
THE COURT: I don't think I will impose on that. The thing the weekend of the 17, 18, 19, that is Friday, Saturday, Sunday?
JUROR: Correct.
THE COURT: And so what time is your plans to depart on that Friday, is it Friday afternoon or Friday morning?
JUROR: Probably around 2:00 o'clock.
THE COURT: And you have already committed to that?
JUROR: Correct.
THE COURT: Paid for?
JUROR: Yes.
THE COURT: Do y'all hear what her plans are?
BOYD YOUNG: Yes, sir.
RICK HUBBARD: I missed a little bit of it.
THE COURT: All right. She has got a commitment for work, travel plans to coordinate a follow up, fund raiser, big to do. A It is not really a fundraiser. It is for profit.
THE COURT: That is raising funds.
JUROR: Well, yes.
THE COURT: 17th, 18th, 19th, that weekend after next, the weekend after Mother's Day.
JUROR: Correct.
THE COURT: Committed Friday, Saturday and Sunday and then committed to another event following it up in mid-June.
JUROR: End of June.
THE COURT: Okay. I am inclined to excuse her for that reason.
BOYD YOUNG: Yes, sir.
THE COURT: Any problem, Solicitor?
RICK HUBBARD: No sir, Your Honor, unless Your Honor wanted to work around that one day in May. It is up to you, whatever Your Honor feels to do, it is in the Court's discretion. That is fine, Your Honor.
THE COURT: I understand. That would give us a built in day to be down.
JUROR: You are welcome. It is all internet driven. So if there is any restrictions on internet, if I am here during the day I would be on the internet all night and every weekend doing my job. I don't know if that factors in at all.
THE COURT: Well, it does and it doesn't. It is just a matter of what you are doing on the internet. If you are doing work not related to this case, knock yourself out. So, all right, if your commitment is Friday, Saturday, Sunday, if you were selected as a potential Juror you would need to be not in court on Friday at all to be ready to leave. You are flying somewhere?
JUROR: I am driving, it is driving distance.
THE COURT: But you are leaving Friday afternoon after lunch?
JUROR: Yes.
THE COURT: Let me ask you this. If I protect you, say from noon until the following Monday, if you were potentially selected would that impact your ability to serve if we did that?
JUROR: That would not.
THE COURT: That would not. So, I am kind of inclined to do that. Noon Friday, protection if she is on the jury. I don't think that impractical. I have got plans that weekend, mine are not until Saturday. Okay. I am going to keep you with the idea that if you are selected that would, because of you we would adjourn court midday Friday and then resume Monday morning.
JUROR: Okay.
THE COURT: That is what I am going to do with this.
JUROR: And you are sure you are done by the end of June.
THE COURT: Oh, yes. I am pretty certain on that.
JUROR: Pretty certain?
THE COURT: Yes, ma'am. Let me give you this. My daughter is getting married early July, several of the lawyers have plans in July, I think we are going to be done by then. That is my hope. Everybody here is going to work efficiently and we are on the same page.
JUROR: Okay.
THE COURT: Now, back to my questions.
THE COURT: Let's make sure she is protected Friday afternoon and that would be the entire panel she is on.
THE COURT: Let me get back to my question. The case involves, I read the allegations and you have heard the publicity, the allegations were read Monday. You have seen publicity before Monday, way back, recently, whatever, from where ever you have heard anything about the case including the courtroom. Has any of that information that you perused caused you to form an opinion as to what happened in this case?
JUROR: I literally think I heard a news story five years ago or whenever. Didn't even think to look up what was going on. I don't watch the news. We have DVR so I typically fast forward through all of that. So it didn't even occur to me what would be happening when I came in last Monday.
THE COURT: Okay.
JUROR: So I really don't have--
THE COURT: You haven't formed an opinion at all?
JUROR: No.
THE COURT: All right. Now, the testimony, because of the allegations made by the State, the testimony is going to involve the death of several children. The testimony is going to be difficult, challenging, very unpleasant. Will testimony in that subject matter, showing or describing those sorts of things, that subject matter cause an issue for you to be fair and impartial just because we are considering that type of subject matter. But I need you to be able to consider it and also yet be fair to both sides, the State and to Mr. Jones. Can you do that?
JUROR: Logically speaking, yes.
THE COURT: Okay. I asked you to look over a Juror, I mean potential witness list. Has a list of all the potential witnesses that could be called, not all of them will be called but potentially could be. Are you connected to anyone, did you recognize any names?
JUROR: I did not recognize anyone.
THE COURT: Not a soul?
JUROR: No.
THE COURT: Now, I gave you the preliminary instructions over here a moment ago and you listened because you were sitting on the far left. Did you listen to those instructions that gave the kind of criminal procedure and overview of how a Capital case is provided into two phases?
JUROR: Yes.
THE COURT: Now, did you understand my instructions?
JUROR: Yes, there is a couple of words I would want to look up but for the most part.
THE COURT: All right, I can help define. Which words were you--
JUROR: Just like the legal definition of mitigating and the opposite of the mitigating, like legally what that means. And I just know what I think that means.
THE COURT: I will find that right now and then I will ask you about you being a Juror. Here is the way it works in a Capital case. The State says we are going to seek the imposition of the death penalty. The murder has to be proven first beyond a reasonable doubt. And that is taking another life with malice, with hatred, ill-will in your heart. If the jury finds a person guilty in that phase then phase two, the sentencing phase is then started. In that phase the State must prove an aggravating factor. And so in addition to the murder the statutory, one of these statues has, the aggravating factors and I will name off some of them to you. Rape of murder, kidnapping of murder, murder of a policeman, murder of a child, multiple victims. Those are statutory aggravating factors. The State has to prove at least one of those beyond a reasonable doubt. Now, mitigating factors is any reason you would want to give a life sentence as opposed to a death sentence. So they are kind of converse of the aggravating factor.
JUROR: Sure.
THE COURT: Mitigating factors are what was the Defendant's walk in life, what was his age at the time of the crime, did he have any emotional disabilities, had he ever done anything of violence against another person. There are eight or ten of those listed.
JUROR: Okay.
THE COURT: And I can go over all of them with you if you like right now. Let me do that just out of caution because look here, I have them written down. It is a common question, I normally go into it later but since you asked I will do it right now. The Defendant has no significant 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 statuary definitions of mitigating factors. There are other non-statutory like just walk in life, how he was raised. The jury can hear any of those. Some of these aren't applicable like age, being under 18. So if it is not applicable I wouldn't instruct the jury on that but each one of these are testified or presented by either side, the jury will receive instructions that these are mitigating factors. So now, you have got examples of aggravating factors and mitigating factors. The question on the types of jurors kind of presupposes that the conviction of the murder, the State met its burden of proof beyond a reasonable doubt. Then the jury considers the aggravators and the mitigators. Did you read the types of jurors?
JUROR: I did.
THE COURT: Where do you find yourself?
JUROR: I believe I am type three.
THE COURT: Type three?
JUROR: Yes.
THE COURT: You want to hear the type of testimony that may fit in some of these categories. Let me ask you--
JUROR: Well, I interpreted it to be, type three as open hearing what you are going to be saying.
THE COURT: I believe that to be a correct interpretation. Some people come in for whatever reason, they are already kind of committed to one punishment or the other. Now, in the sentencing phase too, there is only two choices. There is life or death, there is no in the middle. Do you understand that?
JUROR: Yes.
THE COURT: Okay. Now, understanding that, can you listen, I will ask you those question. Can you listen to the instructions of the Court and consider, presuming the murder was a conviction beyond a reasonable doubt. I am going to go back and ask the guilt or innocence question. If the State proves the murder beyond a reasonable doubt and we get to the penalty phase, can you consider all aspects of the testimony, whether it be testimony of the State proving aggravating factors, the State must prove beyond a reasonable doubt any mitigating circumstantial facts and whether they fit in these categories or not, consider the mitigating facts, the reasons you would give life and then follow the instructions of the Court and be a fair and impartial Juror in this case. Can you do that?
JUROR: I believe so.
THE COURT: Now, I am going to back up one step further there. Entering the plea of not guilty by reason of insanity, there is some defenses available under our laws to people accused of murder. I am going to read those to you. I will read them all, some of them wouldn't be appropriate, some of them may be, depending on the testimony. Potential statuary defenses would be identification, accident, involuntary intoxication, self-defense, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses, one of which has been plead by Mr. Jones. So in phase one, where the murder, it is the burden upon the State to prove that, Mr. Jones has already offered one potential defense that may be testimony that the others would support. Can you consider the testimony of all the witnesses, whoever testifies, make a finding consistent with my instructions on evaluating the evidence, the circumstances of facts. Can you follow my instructions as it applies to the aspect of those defenses and the State's burden of proof of the murder. Can you do that?
JUROR: I believe so, yes.
THE COURT: All right. Now, four potential verdicts come into play because of the defense presented by Mr. Jones. Potentially could be guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty at all. The Court will instruct on those four aspects, potential verdict forms. Can you right now tell me any reason whatsoever you could not consider my instructions and make a finding to each of those potential verdict forms.
JUROR: Based on what I know right now, no.
THE COURT: Okay. But you would wait and hear and then consider my instructions, apply to the evidence you have heard?
JUROR: Correct.
THE COURT: Can you be fair and impartial in doing so?
JUROR: I believe so, yes.
THE COURT: Now, you have any religious, personal or moral belief which would prevent you from signing a verdict of punishment of the death penalty?
JUROR: No.
THE COURT: Similar question. Do you have any religious, personal or moral belief which would prevent you from imposing the sentence of life without the possibility of parole?
JUROR: No.
THE COURT: And understand, the death penalty is not automatic. The State proves the murder beyond a reasonable doubt and then it goes into the sentencing phase. The sentence is not predetermined to be one or the other. The jury considers everything and makes a determination of one or the other. Do you understand?
JUROR: Yes.
THE COURT: Those are my questions. Mr. Hubbard.
RICK HUBBARD: Thank you, Your Honor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Foster, how are you doing?
JUROR: As well as can be expected. I feel a little anxious.
RICK HUBBARD: Yeah, you have never served on a jury, I saw from your--
JUROR: Correct.
RICK HUBBARD: This is a pretty big one to have as your first trial?
JUROR: You think?
RICK HUBBARD: Well, how long have you been in South Carolina, it looks like you are from Wisconsin?
JUROR: That's correct. I believe we moved down here in the summer of 2011. So, eight years now.
RICK HUBBARD: The Judge has kind of gone over the overview of what we are getting into and I am going to do a little bit of that too. My name is Rick Hubbard, the Solicitor. You will hear from me and somebody from the Defense table as well. We just want to kind of get to know you but also let you see what is coming, just to see where you are on this and make sure that you are okay, the Court's okay with where we go from here. I just want to go over a few things. I know the Judge started off by talking about this is potentially two phases. You have a trial to determine whether a person has done something or not. In this case whether the charge of five murders, whether they, there is a guilt or not guilty verdict on that. Do you understand that?
JUROR: Yes.
RICK HUBBARD: So the whole first part of this trial is just like every other trial you have seen or heard of. It is all about guilty or not guilty and as the Judge said, because in this case the Defendant is pleading not guilty by insanity. There is two other verdicts. There is not guilty by reason of insanity and guilty but mentally ill. So you have four options. My understanding is you want to hear everything before you make a decision?
JUROR: That's correct.
RICK HUBBARD: Now, because there is a trial like this and because the plea is not guilty by reason of insanity the Defense gets to put evidence saying, here is where or why it was at the time, mentally. He didn't know right from wrong. And the law, the Judge is going to tell you what the law is on that but it is something like this. And he is the one that gives you the ultimate law, not me or any other lawyer, okay. But he did not appreciate the legal or moral wrongfulness of his conduct at the time of the killing. So, yes, he did the killing but he just didn't know it was wrong, legally wrong or morally wrong. Do you understand that, that is what a plea of not guilty by reason of insanity is?
JUROR: I understand.
RICK HUBBARD: So typically in any case like that they will have folks come in and say, here is why we believe he is what we would call insane, not guilty by reason of insanity. He didn't know right from wrong. You would be open to hearing them, their witnesses?
JUROR: Yes.
RICK HUBBARD: And then we also will have witnesses, may or may not be experts, some will be experts, some will be people, every day people dealing every day with saying, clearly, at that time he knew right from wrong. Would you be open for that?
JUROR: Yes.
RICK HUBBARD: You can hear both sets of witnesses?
JUROR: Yes.
RICK HUBBARD: Do you understand there is two sides to that story?
JUROR: Yes.
RICK HUBBARD: And you would be willing to hear what we presumed as well as what the Defense presents?
JUROR: Yes.
RICK HUBBARD: And as a Juror you would be back there with eleven other people, something you discuss but ultimately everybody comes to a conclusion of guilty or one of these other verdicts. Do you understand that?
JUROR: Yes.
RICK HUBBARD: Only if you find guilty of either murder, guilty but mentally ill, guilty but mentally ill and the Judge is the one that will give you the law on that. But it is, he is guilty, he knew right from wrong. But because of the mental illness he couldn't control his actions to conform to the law, he couldn't obey the law because of a mental illness. It is kind of hard to understand something like that. If you find him guilty you go to that second phase. And in that phase it is like another trial, a whole trial comes down to punishment. That is why you don't get there if you are not guilty.
JUROR: It makes sense.
RICK HUBBARD: So if he is just not guilty we don't get there. If he is not guilty by reason of insanity we don't get there. We are done. Make sense?
JUROR: Yes.
RICK HUBBARD: We get to that second trial. Let's just assume we are there. The Judge says there is only two options, there is life and there is death. And the Judge, I believe, said life means you die in prison. And death means exactly what it says, death. Do you understand the Judge isn't the one that does that sentence. Do you understand that?
JUROR: Yes.
RICK HUBBARD: If you are a Juror, you and your fellow jurors would be determining the sentence. Do you understand that?
JUROR: Yes.
RICK HUBBARD: My understanding from what you told the Judge, when you looked at those three options about where you fit in as a Juror, you said you picked number three, can you tell me why?
JUROR: I think it is just part of who I am to look at both sides before I decide on something, for however many sides there happens to be. I don't like other people's interpretation of the facts. That is why I really don't watch the news or anything like that because I just, I want to read it for myself or see it for myself or hear it for myself rather than getting someone else's spin. So I try to form opinions only on what I know, not what I heard.
RICK HUBBARD: Right.
JUROR: What somebody else thinks the facts are.
RICK HUBBARD: Being in that third category too, it takes you one step further. Not just listen in forming your own opinion but then being able to act on that opinion. Do you understand that?
JUROR: Yes.
RICK HUBBARD: So one option, once you form that opinion, is to act with your fellow jurors and say, he deserves life based on what I have heard. Are you willing to do that?
JUROR: I am not going to lie, it is going to be tricky, deciding between those two things if that is where it lands.
RICK HUBBARD: What's that, I am sorry.
JUROR: It is going to be tricky to decide between those two if that is where it lands. Just because there is pros and cons, I mean, I can see it both ways if that is where it lands.
RICK HUBBARD: Well, you understand, once you hit guilty that's where it lands?
JUROR: I understand.
RICK HUBBARD: And so you have got two doors you can go through, you and your fellow jurors, life and death. Pretty big?
JUROR: It is huge, yeah.
RICK HUBBARD: So, well let me ask you about the biggest one, death. Is this something you have thought about before you walked in here, have you thought much about the death penalty before you came in here?
JUROR: Relative to this case or just in general?
RICK HUBBARD: Just in general.
JUROR: I mean, I have thrown an off the cuff remark about the death penalty and people's sucking tax dollars like Charles Manson and Ted Bundy and all of those guys just, it is like $100,000.00 dollars a year or something to keep someone in prison, whatever. I just, had that kind of uninformed tax payer attitude towards it.
RICK HUBBARD: Right. Well, is there anything, but it is still kind of an honest, that is who you are?
JUROR: Right.
RICK HUBBARD: Is there anything--
JUROR: It hasn't really affected me.
RICK HUBBARD: Sure. But is there anything in that underlying attitude that, maybe I am not opposed so much to death but it is just kind of waste, waste of time or money.
JUROR: Right.
RICK HUBBARD: Would that sum up your view on that?
JUROR: I mean, I think that is, yeah, that is fair to say.
RICK HUBBARD: Well, let me ask you this. If that is fair to say, if you are a Juror with your fellow jurors and now you are looking at both of those doors, life and death. Can you really honestly, your hand raised under oath, and you are really honest, this is an honest moment. It is hard sitting up there?
JUROR: Yes.
RICK HUBBARD: Can you look at that door that says death, knowing your feelings and still say, Mr. Hubbard and the State, I can be fair on that issue or maybe I am not the person on that. Maybe my honest opinion is I can't really consider it like I think I should because that is just where I fall, it is just me and it is nothing wrong.
JUROR: No, it is my, like I said, unaffected.
RICK HUBBARD: Sure.
JUROR: First glance attitude towards it but never having been in a situation where I have a specific situation and a specific set of circumstances to consider, I mean I am going to look at whatever is presented.
RICK HUBBARD: Sure. And you have said that repeatedly and I appreciate that. You want to hear everything?
JUROR: I do, I am nosy as hell.
RICK HUBBARD: And you know what, that is good. Every Juror needs to be able to ask those questions but ultimately this is the second step I was talking about.
JUROR: Okay.
RICK HUBBARD: So you have looked at everything and this is just kind of a moment of truth, in the hot seat without having really thought about it because you haven't been affected.
JUROR: Right.
RICK HUBBARD: When you are faced with two doors. Life is a fairly clear choice for you if the facts support it because you understand, you haven't indicated anything that would keep you from going through that, is that fair?
JUROR: I believe so.
RICK HUBBARD: But with death, I guess what I just want to clarify for me, as an advocate, are you for one side. That other door, is that really an option for you, not just to consider but to actually walk through or would the, that inner feeling, that inner thought, that inner option, as opposed--
BOYD YOUNG: Objection, that is not an appropriate statement.
RICK HUBBARD: I am asking her about her answers.
THE COURT: He is exploring her response so, be clear with your question.
RICK HUBBARD: Is there anything at that moment of honesty with you, because you have talked how much it is expensive and how expensive it is--
JUROR: Jail is expensive.
RICK HUBBARD: Sure, it is.
JUROR: Death is cheap--
RICK HUBBARD: What is that?
JUROR: Death is cheap, I mean relatively.
RICK HUBBARD: And that is why, I guess, and there is not a right or wrong answer.
JUROR: Am I going to lose sleep and have aches and whatever over those two choices. You would have to be inhuman if you didn't.
RICK HUBBARD: Right, you are right. Like I said, this is the big one, right.
JUROR: But you just, I mean whatever the instructions are, however it, we land in sight of those instructions and definitions.
RICK HUBBARD: And the Judge will give you all that help you need. But that last leg of the journey--
JUROR: The rough one.
RICK HUBBARD: It is yours.
JUROR: Yeah.
RICK HUBBARD: Because now you have got all of the definitions, you have got all of the facts, now it is you and eleven colleagues in the back room, where do we go. And I guess, the only thing, I am probing in a way that maybe nobody else has just so you and I can understand where you are and where ever you are is fine. So when we think about death would you actually be able to say death even though you have had concerns about cost and things like that?
JUROR: I mean if that is where the facts take you, I don't, I believe so if that is where you get to in the process, is you are down to those two choices and that is how things line up. I wouldn't just said it, just to be like emotional about, you know, justice and bla, bla, bla.
RICK HUBBARD: Right. The Judge brought up two things you asked about which was great, mitigating and aggravating circumstances. In that second phase, before you go through that door that says death, I have to prove, I have to prove beyond a reasonable doubt at least one aggravating circumstance. And the Judge gave you a list and they include child under eleven and more than one murder. So I have to prove those before you can even consider going through the death, do you understand that?
JUROR: Yes.
RICK HUBBARD: Now, mitigation, no one has to prove mitigation. Okay. There is some that the Judge gave you, statutory, it is in the law. Here are some things that a Juror can consider but there is also things outside of the law that you consider, just his relationship with other people, whether you think he is a good guy. Do you understand that?
JUROR: Yes.
RICK HUBBARD: That sounds far, things that you can consider?
JUROR: Sure.
RICK HUBBARD: And the law will even say, you can even give him life for no reason at all. You don't have to justify that to anybody, you can just say it is life. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: Here is something interesting, you can find both, mitigating circumstances and aggravating circumstances. You can find things that, that maybe help him in your view and you may find that we have proven beyond a reasonable doubt aggravating circumstances. Just because you find a mitigating circumstance doesn't mean you can't give death. Do you understand that?
JUROR: Yes.
RICK HUBBARD: And you would want to hear all of that, based on the definition the Judge gave?
JUROR: Correct.
RICK HUBBARD: And is it fair to say that as you sit here you are not only willing to consider, you will act on the evidence presented, that you will make a decision based on that evidence.
JUROR: Yes.
RICK HUBBARD: Whether it is, on the first phase, guilty or one of those other options?
JUROR: Yes.
RICK HUBBARD: Second phase, you will consider both options of life or death?
JUROR: Yes.
RICK HUBBARD: And you are saying to me today, you could act on that decision and go through either door?
JUROR: I believe so.
RICK HUBBARD: Okay. Do you have a doubt, we just need to clarify that. I mean, it is unfair because you have to know the facts.
JUROR: Yeah, I don't think you know something until it happens, I believe based on how I think about things that I would be able to.
RICK HUBBARD: One final thing, one final thing on death that is different from life. Life, the Foreperson signs that verdict form. But death, all twelve people when their decisions are made, it is basically a death penalty, you vote death it is death. It is really big. Can you take that step, if the facts in your mind warrant death.
JUROR: Yes.
RICK HUBBARD: Okay.
JUROR: I think so.
RICK HUBBARD: No matter what, you want to hear everything?
JUROR: Yes.
RICK HUBBARD: Ms. Foster, that is all we can ask of you. I appreciate it.
JUROR: And get me out of here by July.
RICK HUBBARD: If we are here by July I think we are all miserable. Thank you.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Ms. Foster.
JUROR: Good morning.
BOYD YOUNG: My name is Boyd Young. I am going to follow-up with you about a couple of points that the Solicitor was talking to you about. Okay?
JUROR: Yes.
BOYD YOUNG: This is the time for you to talk and me to listen so please feel free to elaborate on your answers. And if you don't understand something that I am asking about please let me know. Okay.
JUROR: Okay.
BOYD YOUNG: I noticed and just for your information, the cameras are all off, nobody can report on what you are saying or anything like that. Okay.
JUROR: Okay.
BOYD YOUNG: And I bring that up because you put on your information that a friend of yours who had a child who was murdered?
JUROR: Yes.
BOYD YOUNG: Can you tell me about that.
JUROR: So, it was part of a home invasion, there was a, her daughter was at least 17 or 15 or something at the time, was home by herself. And they lived in a neighborhood where there was some drug activity nearby in an apartment complex. And the, two or three people had broken in the night before and stole some gaming equipment or camera equipment or something but they didn't get all of the pieces. So they came back the next night to get the rest of the pieces and she confronted them or him and he ended up stabbing her to death in her home over some cables.
BOYD YOUNG: Was that here in Lexington?
JUROR: No, that was Illinois.
BOYD YOUNG: Obviously that was a very tragic experience.
JUROR: Yes.
BOYD YOUNG: Having that experience and then a case where the charges are the murder of five children, does that in any way affect you?
JUROR: I mean it is sad but, it is sad.
BOYD YOUNG: It is and I just need to know, you, I can still be fair and impartial?
JUROR: Yes.
BOYD YOUNG: It seems like that is where you are?
JUROR: Yeah. A little bit iron, my emotions don't come to the top for me very often.
BOYD YOUNG: You are sort of a stoic person?
JUROR: Very stoic, yeah. It is not always a good thing.
BOYD YOUNG: It is not. The Solicitor was talking to you about the not guilty by reason of insanity plea, did you have any questions about the definitions that he gave you or what that meant?
JUROR: I mean a legal definition of insanity is interesting, I don't know exactly what that means, I just know it means something different than how we use it for slang.
BOYD YOUNG: Sure, it does.
BOYD YOUNG: Judge, do you have it right there?
THE COURT: I have got it right there. This is the definition, it is statutory, I will read it to you and you can try to answer his question. But note, my instructions will be of this at that time appropriate.
JUROR: Okay.
THE COURT: At the time of the commission of the act constituting the offense, the Defendant, as a result of metal disease or defect, lack the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong. A That is it?
THE COURT: That's it, will that clear it up for you?
BOYD YOUNG: As clear as mud?
JUROR: Right. I will have to read that a couple of times but okay.
BOYD YOUNG: Sure and it is something that you can actually think about.
JUROR: Sure.
BOYD YOUNG: But my question to you is, some people say not guilty by reason of insanity is just a copout, it is an excuse, it is not on the table for me. You know people like that?
JUROR: Yes.
BOYD YOUNG: Just trying to get away with that, it is just an excuse.
JUROR: Right. It is lawyers tricks.
BOYD YOUNG: Because of the plea of not guilty by reason of insanity, he admits, I killed the kids, I killed the children. Right, do you understand that?
JUROR: Yes.
BOYD YOUNG: But he says, I didn't know legal or moral right from wrong at the time. For you, is that something that is on the table?
JUROR: I mean I am open to hearing all that could be.
BOYD YOUNG: Right. That is a verdict that you could see yourself considering and if you thought it was appropriate based on the evidence given in a case?
JUROR: Yes.
BOYD YOUNG: Okay. The Solicitor talked to you a little about your views about the death penalty?
JUROR: Yes.
BOYD YOUNG: Can you tell me in sort of a, I understand the cost basis, and I want to talk to you about that in just a second. Anything else that comes to mind, where you are on death penalty, like just sort of general philosophy about the death penalty?
JUROR: My first reaction is always, you know, it sucks to keep someone in jail if you know they are not redeemable, bla, bla, bla. Why would you pay a million, to a million, three million dollars to keep them alive until they are 95 or whatever. But that is just the tax payer reaction to the cost. I also, like, understand innocent project and wrongful convictions and stuff like that. And if there is a reason to hold off on just executing people from the jump because maybe made a mistake. I really am, I just sit in the middle, I am a centrist, I guess, on most things.
BOYD YOUNG: Okay. Sure. Let me go ahead and talk to you, so, about the cost. Nobody is allowed to present testimony about the cost.
JUROR: Right.
BOYD YOUNG: Of the death penalty. I may want to present testimony about like why the death penalty is more expensive then life without parole, right?
JUROR: I would present that.
BOYD YOUNG: You would. But we are not allowed to talk about it, we are not allowed to bring up cost, jurors are not allowed to consider cost as a factor in deciding the death penalty. I just need to know from you, some people say, you know what, that is part of who I am, it is always going to be with me, I cannot consider the cost and some people say, that doesn't bother me one way or the other. It is not an issue for me.
JUROR: Like I said, it is just the first off the cuff reaction, it is not like the deeper thought of, you know, that wouldn't be a deciding factor. Let's just say that.
BOYD YOUNG: Well, can you assure the Judge that it wouldn't play a role in your decision.
JUROR: I mean, I already, as a tax payer, I already pay for a lot of stuff I don't believe in so I don't really see that as a deciding factor.
BOYD YOUNG: Okay.
JUROR: I mean, don't we all.
BOYD YOUNG: Yes, ma'am. So, just sort of going a little bit further along on your views about the death penalty. You understand he would have a trial and he would have been found guilty or guilty but mentally ill of the five murders of children. Right?
JUROR: Yes.
BOYD YOUNG: That was the malicious intentional killing. You would have found they knew right from wrong, any evidence that you heard about they didn't know right from wrong, you would have said no, that is not the case. They knew what they were doing and knew right from wrong, they intentionally chose to kill multiple children. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Not accident, self-defense, none of that stuff, guilty, guilty. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Given that situation, do you sort of have a leaning towards life or death as the appropriate punishment?
JUROR: I mean, I don't know. There is instructions to follow.
BOYD YOUNG: Yes, ma'am. For you, at that point and time, it is sort of an unfair question. But at that point and time do you have sort of, an equal, you say one way or another you say I need to know?
JUROR: I can't say without knowing what all is presented, if I am going to just jump straight to one or the other.
BOYD YOUNG: Right. Fair enough. And the Judge talked to you about some mitigating information and all that kind of stuff. Right?
JUROR: Yes.
BOYD YOUNG: Okay. And that is stuff that you would need to hear to make your final decision?
JUROR: Right.
BOYD YOUNG: That is a poorly worded question on my part but that, some people say I don't need to know all of that stuff. I have heard the facts of the case and I have-
JUROR: Made up their mind already.
BOYD YOUNG: They are guilty and I don't need to hear anything else. That sounds like that is not you?
JUROR: No.
BOYD YOUNG: Okay. Do you think that the death penalty should be sort of reserved for the worst of the worst?
JUROR: Yes.
BOYD YOUNG: I mean you brought up Charles Manson.
JUROR: Charles Manson, Jeffrey Dahmer, John Wayne Gacy, yeah.
BOYD YOUNG: Can you think of anything about one of those people that you brought up that you might learn to make you think, like, you know what, maybe life would be the appropriate punishment?
JUROR: That I could learn about the person?
BOYD YOUNG: Yes, ma'am.
JUROR: I can't think of anything. I mean, I suppose you could sway that the argument that, life behind bars is a harder punishment to serve. But about the person, I really don't know.
BOYD YOUNG: Okay. Let me ask you a little bit different way. Do you think in, for you, deciding whether or not to kill somebody, give them the death penalty, do you think that you should take a full measure of their life?
JUROR: Yes.
BOYD YOUNG: That if you are going to decide to end their life you should weigh the whole thing?
JUROR: Yes.
BOYD YOUNG: To make that decision, how we get to this decision. What I want to talk to you a little bit now is sort of the mitigating circumstances. Mitigation is how jurors decide life or death. Right?
JUROR: Okay.
BOYD YOUNG: And as the Court has told you, mitigating circumstances are any reason that a Juror finds for herself to give the life penalty. Do you understand that?
JUROR: Yes.
BOYD YOUNG: That it could be, one Juror could say I saw that he had a good relationship with his father and based on that reason I feel life is the appropriate punishment for me. And that is fine. Do you understand that?
JUROR: Yes.
BOYD YOUNG: And another Juror could say, I didn't see that, that's not a mitigating factor for me. But I thought he has a mental illness. So based on that reason alone I am going to vote for the life penalty for myself. That is fine too. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: And then those reasons don't agree, right?
JUROR: Right.
BOYD YOUNG: Each Juror can choose their own reason and give it the value of life if they want to.
JUROR: Okay.
BOYD YOUNG: And the Solicitor talked to you about a Juror can have no reason, say I don't have a reason. I think life is the appropriate punishment for me based on everything that I have heard and the law is satisfied with that too. 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 life is the appropriate punishment?
JUROR: Yes.
BOYD YOUNG: And finally we have what is called mercy. Mercy alone can be enough for a Juror to say, I didn't see any mitigation but based on who I am and my sense of mercy I have decided I want to vote for the life penalty for that reason. And that is fine too. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Do you agree that is how it should work when deciding whether or not a person lives or dies?
JUROR: I think you have to account for peoples, I don't know that we all got core value or emotion or feeling or how you want to categorize it but to expect someone to sit through all of that and have to give death when just honestly can't, don't believe, whatever, you are doing an injustice of that person.
BOYD YOUNG: Right. Exactly. And I think you understood in our conversation with the Solicitor and the Court that it is not like, here is how many aggravators I have, here are how many mitigators I have. That tells me what the appropriate punishment is. You understand that is not how it works?
JUROR: Yes.
BOYD YOUNG: It is, you don't add them, A, B and equal C. Right?
JUROR: Okay.
BOYD YOUNG: There is no automatic death. It is up to each Juror to decide for herself what the appropriate punishment is.
JUROR: Okay.
BOYD YOUNG: Based on all the evidence. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: What we call that, what the law calls that is sort of individual moral judgment. Have you heard that phrase before?
JUROR: No.
BOYD YOUNG: Well, an individual moral judgment is like people choose what faith is right for them or not have faith. Do you understand that you have made your personal decisions about that type of thing?
JUROR: Yes.
BOYD YOUNG: And you recognize that other people may have made different decisions than you?
JUROR: Yes.
BOYD YOUNG: You respect their right to make their own personal decision about that?
JUROR: Yes.
BOYD YOUNG: You expect them to respect your right to make your own personal decision about that?
JUROR: That would be nice, yes.
BOYD YOUNG: If you saw somebody who was being bullied or coerced into giving up what they had arrived at as their individual moral judgment would you stop it?
JUROR: In that setting and like a controlled, confined setting like that, yes. Just out on the street where you don't know anybody and anything could happen, probably not.
BOYD YOUNG: I totally understand. But in a jury room where somebody was saying, this is my opinion, I think this is right for me and somebody said, you can't have that opinion, your opinion is stupid. You have to give up your opinion.
JUROR: Yes, and I would jump on that.
BOYD YOUNG: Whether you were on the side of their opinion or not?
JUROR: Correct.
BOYD YOUNG: You would say, no, that is not how it works?
JUROR: Correct.
BOYD YOUNG: The Solicitor talked to you about signing your name to a verdict for death. If you arrived at your personal moral judgment that it was for death could you sign your name. You recall that conversation?
JUROR: Yes.
BOYD YOUNG: If you arrived at your personal moral judgment that the appropriate sentence was life, could you say I'm not signing that? Could you say I am not going to sign that?
JUROR: I don't understand.
BOYD YOUNG: If you arrive at your personal moral judgment, are you with me on that?
JUROR: Yes.
BOYD YOUNG: And you decided for you that the life penalty, for whatever the reason, is the appropriate sentence.
JUROR: Okay.
BOYD YOUNG: And people are passing around a verdict form saying, sign this or don't. Could you say, I am not signing it?
JUROR: For death you mean?
BOYD YOUNG: Yes, ma'am.
JUROR: Oh, no, I wouldn't sign if that is not what I decided.
BOYD YOUNG: Okay. Thank you very much.
BOYD YOUNG: Based on the Court's limitations I will stop there.
RICK HUBBARD: Nothing further.
THE COURT: Need to be heard?
RICK HUBBARD: No, sir.
THE COURT: All right, does the Defense need to be heard?
BOYD YOUNG: No, sir.
THE COURT: Ms. Foster, you are going to be qualified as a Juror. What that means is you are being placed on the list of qualified jurors. I am going to ask you to monitor the Lexington County website and follow the instructions on when to come back in. Next week, one day. Start looking at it this week. Watch it and follow the instructions, check back, check back, come in, come in. Until that time your communication about this case, like you have done, don't talk about it, don't ask questions, don't let anybody interrogate you about it. Don't get on social media and discuss it.
JUROR: Right. I have been basically following the progress of how many panelist you have gotten through, that is all I have been watching, to try to plan my weekend.
THE COURT: I don't want anything outside the courtroom to impact your decision. I want you to be fair and impartial and make your decision on what has been heard in here. Not what is reported outside because--
JUROR: Someone else's interpretation.
THE COURT: There is a lot of interpretation. So can you live up to that obligation under that oath?
JUROR: Yes.
THE COURT: Thank you very much. See you soon. (Whereupon, the Juror was excused from the courtroom.)
BOYD YOUNG: Judge, can we have a few minutes.
THE COURT: I know this was the first time y'all have gone second but you were really long, you were really long. You are following up his, you don't have to go through all of his and then all of yours the second time. You asked the same question five different ways. So you have been brief, you just got over, you were lengthy and redundant. I mean, follow-up and then get to your questions. I know what you are going to ask but you ask all of your questions you normally do and then all of the, I mean--
BOYD YOUNG: She had a couple of issues--
THE COURT: That was very long considering her answers. She was smart and understood and wanted to hear and she was right in along with the type three and stayed there. The Solicitor, that was his first time leading off but lengthy. I am not telling you what to do but you were lengthy. We will take a couple of minutes because you were lengthy.
(Whereupon, a short break was taken.)
THE COURT: Are we ready on Juror 287?
RICK HUBBARD: Yes, sir.
CASEY SECOR: Yes, sir.
THE COURT: We are going to try not to be redundant. (Whereupon, Juror 287, Lasharee Melvin-Jonas entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Will you spell for me your first and last name.
JUROR: First name is Lasharee, L-A-S-H-A-R-E-E; Melvin-Jonas, M-E-L-V-I-N-J-O-N-A-S.
THE COURT: Okay. I am asking the jurors the same question, same order, no reason other than it is easy for me to keep up. Monday you came in and took an oath to not talk about the case. Have you talked about this case in any manner?
JUROR: No.
THE COURT: Has anyone tried to talk to you abut the case in any manner?
JUROR: No.
THE COURT: There has been a great deal of publicity, before, during, since, prior to, a lot of publicity period. I published, read the indictments to the whole jury panel Monday. So you have some information about the case, the allegation in the indictments you have heard. Any information that you have taken in or seen, heard about, seen, included the Court. Has any of that information caused you to form an opinion as to what happened in this case?
JUROR: Yes, I feel like it has from what I have heard in the court, yes.
THE COURT: Okay. You think something has happened and there are allegations of the murders made by the State. They have got to prove them beyond a reasonable doubt. Have you formed an opinion as to whether or not it actually happened or are you still, can you answer that?
JUROR: Not anything specific happened, just opinions.
THE COURT: Okay. Your work schedule, your personal schedule over the next several weeks. So through this week, starting next week, the following week, maybe into early June, do you have an idea of your personal schedule, whether it be work related, personal related that you would have to rearrange that would create a hardship on you to serve as a Juror in this case?
JUROR: Yes, I have the first week of June, an event coming up, was the whole week. But other than that there is nothing that I have coming up.
THE COURT: So you are committed to the entire first week of June?
JUROR: Yes.
THE COURT: And that is something that you have been planning for a while?
JUROR: Yes.
THE COURT: Are you getting married?
JUROR: No, I am already married. I have vacation.
THE COURT: You have vacation?
JUROR: Yes.
THE COURT: Where are you going?
JUROR: Mexico.
THE COURT: I am not going to interrupt that because potentially the trial could into that first week and everyone who has had a vacation I have tried to work around that. And so I am going to work around it by thanking you for coming and excusing you from service in this case. Thank you very much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are y'all ready on 314?
RICK HUBBARD: Yes, sir.
BOYD YOUNG: Yes, sir.
THE COURT: Bring them in. (Whereupon, Juror 314, Judy Nixon entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Hello. Ms. Nixon, good morning to you.
JUROR: Good morning.
THE COURT: I am going to ask you to spell your first and last name for Ms. Holston.
JUROR: Okay. Judy, J-U-D-Y; Nixon, N-I-X-O-N.
THE COURT: Ms. Nixon, I asked y'all to take an oath Monday and I am asking all the jurors the same question, basically in the same order. Have you communicated in any way with, about this case with anyone?
JUROR: No.
THE COURT: Has anyone tried to communicate with you about this case?
JUROR: No.
THE COURT: Now, there has been publicity, media, regular media since Monday, prior to Monday, prior to you taking the oath, several years ago in fact. Also the Court read the indictments to the entire jury panel so that was information considering the allegations the State has made. Has any of that information, from where ever its source, no matter where it came from, that you received. So I am not asking you, what have you received but right now considering everything, have you formed an opinion as to what you believe happened in this case?
JUROR: I have not.
THE COURT: Okay. Now, I told you, my earlier question was going to be about your vacation, your personal schedule. Do you have anything, understanding if you are selected as a qualified Juror you could be potentially selected later. Starting next week, the following week and into early June, that first week in June, do you have anything on your personal calendar that would impact, be impacted if you were selected as a potential Juror in this case?
JUROR: I don't.
THE COURT: So your schedule is clear if you were obligated to come in and serve those weeks?
JUROR: Yes.
THE COURT: Thank you so much. Now, I gave you, I ask this question. The allegations in this case involve, alleged murders that the State has indicted Mr. Jones with. He is presumed innocent sitting right there. The presumption stays with him all the way through the trial. I gave you instructions this morning about the criminal procedure, some of the definition of criminal law, the two phase process of a Capital case, the first is the murder has to be proven. If it was not proven the case ends. If it is proven beyond a reasonable doubt by the State phase two would then start and the State then would have to prove an aggravating factor. And then the jury considers any and all mitigating circumstances and facts that it hears and determining the punishment in the punishment phase. The punishment phase there is two choices, life or death. I gave you a sheet describing three types of typical jurors in cases like this. You don't have very many facts, very limited. But considering what you have got right now can you identify yourself, considering that, did you read that and understand it?
JUROR: I did read it.
THE COURT: Did you understand my instructions?
JUROR: I did.
THE COURT: Can you identify yourself as a type of Juror?
JUROR: Three.
THE COURT: You are a three. And what I understand three to mean is you have not made up your mind, do not want to commit yourself until you hear everything?
JUROR: That's right.
THE COURT: That's right?
JUROR: Yes.
THE COURT: Okay. Now, the lawyers have to hear you so they may start perking up and Ms. Holston may help you with that microphone. She wants to hear you too. Now, do you understand the testimony in this case will be of the subject matter concerning the death of children. It will be graphic, harsh, unpleasant and difficult. I do not want to promise you anything else, difficult, tough. The subject matter of that type is going to be difficult to hear and consider. Is that subject matter a type of subject matter which would make it difficult for you to fairly consider and be a fair Juror to both the State and also to Mr. Jones in this case. Can you do that?
JUROR: I can do that.
THE COURT: In spite of the testimony being difficult and unpleasant?
JUROR: Yes.
THE COURT: Okay. Now, I am going to go through stage one and stage two, phase one, phase two. In a phase one portion of the case the State has to prove the murder. In this case there are potential defenses available, one of which Mr. Jones has claimed but I am going to read all of the potential defenses to a murder accusation to you. All of them may not apply but some of them might so the ending on the testimony is whether I instruct you on those. Okay?
JUROR: Okay.
THE COURT: 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 defenses available to people. Mr. Jones has elected to claim or try to show not guilty by reason of insanity. Now, can you be a fair and impartial Juror, consider the testimony presented during the guilt or innocence stage at trial. The State as got the burden of proving its case beyond a reasonable doubt that each and every element of the murder accusations, can you consider my instructions on the aspects of the appropriate law, meaningful consider all of the evidence presented in this case and act as a fair and impartial Juror in this case?
JUROR: Yes.
THE COURT: Now, Mr. Jones' plea brings with it a potential of four options on a verdict form. So in the phase one the potential verdicts could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Those are four potential verdicts in that case. Phase one. Can you give meaningful consideration to all four of those potential verdict forms, considering you will be instructed on the law as to how to evaluate the aspects of those additional defenses and on the State's burden of proof. Can you give meaningful consideration to all four of those verdict forms?
JUROR: Yes.
THE COURT: Now, if the State does not meet its burden of proof or the jury reaches a verdict of not guilty by reason of insanity the case ends. If the State meets its burden of proving the murder then the case goes to phase two. During the phase two the State must prove a statutory aggravating factor. There are several and I am going to name them all and then come back with more instructions. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple victims. Those are aggravating factors. The State must prove one of those, at least one of those beyond a reasonable doubt in the sentencing portion in order to ask a jury to please impose a death sentence. Once it gets to the sentencing phase the jury is also required to consider mitigating evidence. Mitigators are things that would allow you or to compel you to impose a life sentence as opposed to a death sentence. I am going to read some of those. There are some statutory ones and there is some non-statutory issues.
Statutory mitigators would be the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional 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 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. The Defendant had mental retardation at the time of the crime. Those are statutory mitigating factors.
Other mitigators can be, not saying got to be but could be, the Defendant's childhood, whether he came from a broken home, his walk in life. Things of that type. Now mitigating factors are those and the jury gets to consider them. Can you give meaningful consideration to the fact that the State has the burden of proving an aggravating factor and the jury considers mitigating factors in imposing the punishment. Can you, now, the death penalty is not automatic. Once the sentencing phase starts the jury has two choices, life or death, nothing else is on the table, those are the two options. Can you give meaningful consideration to the instructions of the Court on the State's burden of proving an aggravating factor and the jury's responsibility to consider mitigating factors and reach and be a fair and impartial Juror in this case. Can you do that?
JUROR: Yes.
THE COURT: Now, do you have any reason, moral, personal or religious belief which would prevent you from imposing a death sentence?
JUROR: No.
THE COURT: Do you have any religious, moral, personal belief which would prevent you from imposing a life without parole sentence?
JUROR: No.
THE COURT: Those are my questions.
THE COURT: Solicitor.
RICK HUBBARD: Yes, sir.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Nixon, how are you doing?
JUROR: Hi, I am fine.
RICK HUBBARD: I am Rick Hubbard, the Solicitor. And this is our opportunity to have a chat and talk to you and find out a little bit about you, also let you kind of get an idea of what you are looking at should you be sitting on a jury. So I just want to ask you a few questions. My understanding is, from your answers, you understand the two phase process in a trial like this?
JUROR: I do.
RICK HUBBARD: And that the whole first phase, the whole first trial is just determining, is this Defendant guilty or not guilty or not guilty by reason of insanity, something like that. The Judge read the four verdict forms, right?
JUROR: Yes.
RICK HUBBARD: So, did he do it and did he have the mindset, the mental capacity, right?
JUROR: Yes.
RICK HUBBARD: Than and only then do you move to the second phase, about punishment. You don't punish somebody who is not guilty, right?
JUROR: That's right.
RICK HUBBARD: That first phase, I want to talk to you just a little bit about it. And it is like a regular trial. But as you heard, there is a claim of not guilty by reason of insanity. And I can't recall if the Judge read to you what that meant but ultimately he is the one that gives the law on that, not me, not the Defense. Okay?
JUROR: Okay.
RICK HUBBARD: All law comes from him, we talk about it but he is the law, the law guy. Not guilty by reason of insanity basically is this. A person actually commits the act, but at the time of the act he didn't understand the wrongness of that act, both legally and morally, just didn't appreciate it was legally and morally wrong. Does that make, do you understand that?
JUROR: Yes.
RICK HUBBARD: And my understanding is, you would consider that as an option in that first phase of the trial if you were a Juror?
JUROR: Yes.
RICK HUBBARD: You would want evidence?
JUROR: Yes.
RICK HUBBARD: Now, the Defense, by claiming that, would bring in people to say here is why we say that. You would want to hear them?
JUROR: Yes.
RICK HUBBARD: Our side of the table will have people coming here, they may be experts but they don't have to be and say, no, at that time he knew right from wrong. You would want to hear both sides?
JUROR: Yes.
RICK HUBBARD: And of those four verdict options, you told the Jug you would consider each and every one of them?
JUROR: Yes.
RICK HUBBARD: And you could act on any one of those?
JUROR: Yes.
RICK HUBBARD: Based on the evidence?
JUROR: Yes.
RICK HUBBARD: Let's assume for a moment a guilty verdict is rendered. Okay?
JUROR: Okay.
RICK HUBBARD: Guilty so now we are going into the second phase because we don't get there without guilt. So we are in the second phase. As the Judge explained, there is only two options now for punishment. Life without parole where you die in prison and death meaning exactly what it says, he will be put to death. Do you understand those two options?
JUROR: I do.
RICK HUBBARD: And my understanding from your responses with the Judge, you are the kind of person that could do, you don't have anything about you moral or any of your views, your personal views that would keep you from giving a life sentence. Is that correct?
JUROR: That's right.
RICK HUBBARD: But there is nothing about you, your beliefs, your morals, your religious views that would keep you from giving a death sentence either.
JUROR: That's right.
RICK HUBBARD: The Judge said at that time, before you make that decision there are several things that will come about in that trial. Before you can even consider that the State, represented by me, will have to prove at least one aggravating circumstance. For instance, is a child under eleven, more than one person died. We have to prove that to you in that second phase and that what has happened before you can even consider death. Do you understand that?
JUROR: Yes.
RICK HUBBARD: Mitigating factors, the Judge said nobody has to prove those. There are some he read off that are by law and then there are some that are just out there that you can consider life, the Defendant's background, his relationship with others. Would you be willing to hear both aggravating and mitigating circumstances?
JUROR: Yes.
RICK HUBBARD: Would you want to?
JUROR: Yes.
RICK HUBBARD: And you understand you can find an aggravating circumstance, that the State has proven an aggravating circumstance and you can find mitigating circumstances as well. And you can still vote for death, do you understand that?
JUROR: Yes.
RICK HUBBARD: Just because you find a mitigating circumstance doesn't mean you have to give life. Do you understand that?
JUROR: Yes.
RICK HUBBARD: One final thing, before a death sentence can be imposed, we do it differently than we do for any other sentence. If it is life just the Foreperson signs, saying all twelve of us agree, this is a life sentence. Do you understand?
JUROR: Yes.
RICK HUBBARD: With death all twelve jurors sign their name in ink in that form, basically a death warrant. Can you do that, if the facts are there?
JUROR: Yes.
RICK HUBBARD: That is all I have, thank you so much.
JUROR: Thank you.
THE COURT: Mr. Secor.
CASEY SECOR: Yes, sir.
EXAMINATION By Mr. Secor:
CASEY SECOR: Good morning, Ms. Nixon.
JUROR: Good morning.
CASEY SECOR: How are you?
JUROR: Good.
CASEY SECOR: The Judge and the Solicitor talked to you a lot about your willingness and ability to be fair and impartial and to follow the law. Is that right?
JUROR: Yes.
CASEY SECOR: And that is obviously perfectly appropriate, I don't doubt you at all on that. But it is also just as appropriate for me to ask you questions about how you feel personally. Okay. And so I just want to make sure that, do you agree with me that there could be a difference between the answers you give, this is how it would be as a Juror and this is what my personal feelings are.
JUROR: Yes.
CASEY SECOR: And so I really want to know just what your personal feelings are. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Okay. Going back to what Mr. Hubbard was saying being found guilty in a theoretical case, of course not talking about this case because this case hasn't been tried. But I want you to think about being a Juror on a case where a person is charged with multiple murders of children. Okay?
JUROR: Okay.
CASEY SECOR: As the Judge told you, murder in South Carolina is the malicious killing of an innocent person. That would mean that that, the person, they knew right from wrong. And that they had no excuse, justification or defense, so you had found that they were not insane, they were not acting in self-defense. They were not defending anybody else, they were not acting in the heat of passion. All of those types of things that could be a defense to murder. They don't apply for a guilty murderer, of course, right?
JUROR: Right.
CASEY SECOR: And if I am being confusing just stop me.
JUROR: No, it is okay.
CASEY SECOR: Do you feel like we are on the same page?
JUROR: I understand.
CASEY SECOR: Okay. Thank you. So there would be no defense and the person would maliciously kill multiple children and knowing that if you find a person guilty of that, you can't sentence them at that point. As the Judge said, you would then go to the second phase, right. That is where the determination about punishment happens by the jurors. But what I would like to know, again, about your personal feelings. Is at the time that you believe that person is guilty, even though you are not allowed to sentence at that point, what are your feelings about the death penalty for somebody that you know is guilty of multiple murders of children?
JUROR: I feel like it is there to be applied.
CASEY SECOR: It is there to be applied?
JUROR: Yes.
CASEY SECOR: Okay. And do you, I guess the question I would like to know is, once you know that they are guilty and you have death on one side and life on the other, are you leaning one way. Do you start at one punishment and that you will have to be convinced the other way or how do you feel personally?
JUROR: It is hard to imagine without facts. I mean, you are right, it is one or the other.
CASEY SECOR: Right.
JUROR: Probably lean more toward life.
CASEY SECOR: Lean more toward life at that point. Okay. I appreciate that, I know it is a tough question but we really just want to know how you feel. I appreciate that. In your mind, for you, is the death penalty something that should be reserved just for the worst of the worst offenders?
JUROR: Yes.
CASEY SECOR: And in deciding punishment do you feel like a person's entire life experience should be taken into consideration?
JUROR: Yes.
CASEY SECOR: Even if it is completely unrelated to the actual murders that they were guilty of?
JUROR: Yes.
CASEY SECOR: Thank you. I just want to run through some principles that are used to guide jurors in Capital cases, once you got to the penalty phase, once you know the person is guilty and you have to hear the evidence to make a determination between life or death. Okay. And just find out whether or not you are familiar with these and if you think that they are appropriate, is that okay?
JUROR: Okay.
CASEY SECOR: In South Carolina the death penalty is never required. Did you know that?
JUROR: No.
CASEY SECOR: And that is true actually everywhere in the entire United States, the death penalty is never required in any case, not the worst case you can possibly imagine. Do you think that is appropriate?
JUROR: If that is the law.
CASEY SECOR: Okay. And that is because the law says that, the law is satisfied with a sentence of life without parole in any case, the worst case you can possibly imagine. And it sounds to me like that is something that you agree with because you think you would start off in a life sentence when you know someone is guilty?
JUROR: Yes.
CASEY SECOR: And you talked to the Solicitor about the concept of mitigating evidence and aggravating evidence. And they are different in that mitigating evidence doesn't have to be proven to any standard, right, there is no burden of proof for mitigating evidence, where there is for aggravating evidence.
JUROR: Okay.
CASEY SECOR: And also mitigating evidence doesn't have to proven unanimously and that is because the law gives each individual Juror the right to vote for life based on any reason, no reason or based on mercy alone. Okay.
JUROR: Okay.
CASEY SECOR: And a Juror has the right to find a piece of mitigating evidence and nobody else to agree with them. They can say, I saw that he had a good relationship with his dad and that is mitigating for me. I am voting for life for that. Can you could respect a juror's right to do that?
JUROR: Yes.
CASEY SECOR: Even if you disagreed with them and didn't see that piece of mitigating evidence, right?
JUROR: Yes.
CASEY SECOR: And also the second thing, no reason, the law empowers a Juror to say, I considered everything. For me I just feel that life is the right sentence, I can't tell you why, I can't put my finger on it. You could respect a juror's right to do that as well?
JUROR: Yes.
CASEY SECOR: Because the law doesn't require a person to give a reason for life. They can just say, I have decided it is life and they don't have to explain it. Do you think that is appropriate?
JUROR: If that is the law, yes.
CASEY SECOR: And finally a Juror can give life for mercy, meaning they have heard everything, they found aggravating evidence, they may or may not have found mitigation but they can just say, for me in this case I have decided that I am going to be merciful and for me that means life without parole in this case. And you could respect a juror's right to do that even if you disagreed with them?
JUROR: Yes.
CASEY SECOR: The ultimate decision for each Juror in the penalty phase is based on your own individual moral judgment. And that is a little bit wordy but it is just a profoundly personal moral decision, sort of like how a person goes about choosing what faith is right for them. And you respect people to make individual moral judgments that are different from yours, of course.
JUROR: Yes.
CASEY SECOR: And you expect that they respect your individual moral judgments even if they disagree with them?
JUROR: Yes.
CASEY SECOR: In these deliberations in a penalty phase the law requires you to deliberate respectfully and reasonably but the decision on whether or not to kill another human being has to be by each individual Juror. And once they arrive at that decision is unlawful for them to be bullied, pressured or coerced out of that individual moral judgment. Does that sound appropriate to you?
JUROR: Yes.
CASEY SECOR: Some people have a harder time standing up for themselves and if you saw somebody being bullied you could say that is not appropriate, that person has their individual judgment they are entitled to. Stop it, right?
JUROR: Yes.
CASEY SECOR: And if need be you could notify Judge Griffith and say, people are being bullied, you need to take care of this?
JUROR: Yes.
CASEY SECOR: Thank you, I appreciate it.
RICK HUBBARD: Nothing else, Your Honor.
THE COURT: Anything we need to put on the record?
CASEY SECOR: No, sir.
THE COURT: Ms. Nixon, the Court will find you qualified. What that means you are on the next list of qualified jurors. Several jurors are going to be qualified. I want you to follow the website where you were checking panel nine, now you are a qualified Juror. Watch those instructions, it may say check back, check back, please report on or about 9:00 a.m. on such and such a date. You watch the website for directions to the qualified jurors, you are one of those.
JUROR: Okay.
THE COURT: Still under oath. From this point forward don't talk about the case, do not let anyone communicate with you about the case, do not do any independent research, do not get on any social media and say, I am on the jury. I don't want you to peruse the media publicity, social media publicity, any publicity. You need and should decide this case, I want you to hear what you need in the courtroom under my supervision, the Court's record, under oath and all the jurors hear the presentation all at the same time. So it is not piecemeal gathering, this and that and the other and come in with a preconceived notion of what happened and also what the law is. The law is for the Court to instruct, that is my job. I can't instruct you on the law via outside of the courtroom. Can't do it. I want you to decide the case on what you hear in here, if you are so selected as a Juror. Can you promise me you will live up to that oath?
JUROR: I can do that.
THE COURT: Very well, we will see you soon. Thank you very much.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 96. (Whereupon, Juror 96, Toni Clark entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Ms. Clark.
JUROR: Good morning.
THE COURT: I asked you on Monday to take an oath to promise to not talk about the case and not allow other people to talk to you about the case. Have you talked to anyone about the case?
JUROR: No, sir.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: No, sir.
THE COURT: Other than, you know, I am going to court and I have got to go and letting people know where you will be.
JUROR: The only people that knew was my immediate family.
THE COURT: Fair enough. Now, there has been a lot of publicity in this case since Monday, prior to Monday, several years ago. Also the Court read five indictments, reading the allegations made by the State gainst Mr. Jones. He is presumed innocent but I read those indictments to tell the jury a little bit, introduce the jurors a little bit about the facts that are being considered in this case. Has any of the information, publicity, information from the Court, where ever it came, any information created an issue for you to form an opinion as to what happened in this case?
JUROR: No sir, other than what you told us and a tiny little article I read a few weeks ago. That is all I know.
THE COURT: So you have not formed an opinion as to what happened?
JUROR: No, sir.
THE COURT: Okay. And also let me ask you about your potential schedule and availability to be a Juror. The qualification will go most likely through this week. The trial will start early next week if we continue making progress on qualifying the jurors. If we start the trial next week, I am guessing through the end of May, early June, what have you on your calendar, work, personal or otherwise that would be impacted if you were so selected?
JUROR: I take care of my grandson who is five years old and he is still in school. By the time he gets out I have to be there at 2:30. My son who is his father is a single dad and if he doesn't work he doesn't get paid.
THE COURT: Okay. So you are helping your son with his five-year-old?
JUROR: Yes, sir.
THE COURT: And it is your blood grandchild?
JUROR: Yes, sir.
THE COURT: Aside from that any other issues on your calendar?
JUROR: None.
THE COURT: If you were selected as a Juror or if you have something going on, what happens with this five-year-old if you are not available, what happens?
JUROR: I guess my son will have to take off of work. He may try and see if his work can work around the schedule.
THE COURT: I think you told me that the mother is not involved whatsoever?
JUROR: No, sir. The mother is not and none of her family is.
THE COURT: Okay. Understanding you have got a five-year-old grandchild, the subject matter of this case involves the death of some children. The subject matter, the testimony, the evidence the jurors will consider will be graphic and harsh, perhaps unpleasant if not very unpleasant, difficult testimony to consider. Would that testimony of that type of subject matter make it difficult for you to be a fair and impartial Juror just because of the subject matter?
JUROR: I have been thinking about it and to tell you the truth I don't know.
THE COURT: Okay. And fair enough answer since you haven't seen it. I am going to give you my, information I received from the lawyers, Judge, this is going to be tough evidence. They would not tell me that and represent that to me if it weren't going to be that difficult, unpleasant and tough to consider and see. With that representation and description, does that help you evaluate any further whether or not you can be fair and impartial to both sides?
JUROR: I would think I could still be. But to tell the truth, no, I don't want to hear it but until I hear it I won't know.
THE COURT: And your response just now is a common response, until, I don't know. Very common and no one says, you know, I can't wait to see it. There has never been that response. Your response is a common one to the jurors I have talked to. I gave you a preliminary instruction on the law an hour ago, aspects of a Capital case, two phase, phase one, guilt or innocence. Phase two, the sentencing portion. I also gave you a sheet to examine and describe three potential jurors which presupposes that guilt is found and then the jury considers the aggravating factor and mitigating factors. If that is proven and you don't know anything about the facts in this case other than the allegations that I read, can you identify yourself as one of those three types of potential jurors?
JUROR: I looked it over and I thought about it, I know definitely I am not Juror one.
THE COURT: Okay.
JUROR: But, again, until I am put in that position of making a choice, I don't know until I am there.
THE COURT: Okay. Now, in the sentencing phase, this type of case, it is required that the death penalty be unanimous and it is also required that each Juror that verdict, verdict for death, all twelve jurors sign. Do you have a reason, personal or otherwise that would prevent you from signing or imposing the death penalty?
JUROR: No, sir.
THE COURT: Do you have any personal, religious, moral belief which would prevent you from imposing that sentence if the evidence and facts support it, consistent with my instructions on the law?
JUROR: No, sir.
THE COURT: You could do that?
JUROR: Yes, sir.
THE COURT: Now, do you have any religious, personal or moral beliefs which would prevent you from imposing the life without parole sentence if the facts supported that?
JUROR: No, sir.
THE COURT: I ask you to look over the potential witness list. Did you do that?
JUROR: Yes, sir.
THE COURT: Do you know any of the witnesses?
JUROR: I am not sure, two of the names were familiar.
THE COURT: What are the names?
JUROR: William Herring, if it is the same one I know he is a friend of mine. But I know him as William Thomas Herring.
THE COURT: Who else?
JUROR: The other one is Lisa Shealy. If it is the same one, I went to high school with her at Brooklyn-Cayce High School.
THE COURT: Not sure, let's suppose it is them. Is your relationship with them close enough that if they were to testify would it be difficult for you to be fair and impartial in this case?
JUROR: No.
THE COURT: You could still evaluate their testimony impartially?
JUROR: Yes.
THE COURT: In a murder case there are several defenses that are available to people accused. I am going to read those to you and I will ask you about phase one of the case. Okay.
JUROR: Okay.
THE COURT: Potential defenses and it doesn't mean you will consider all of these but there are potential ones on the statute. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. Now, in phase one the State is required to prove the murder beyond a reasonable doubt. The Defendant has claimed one of these defenses, not guilty by reason of insanity. Perhaps the testimony could support one of the other defenses. You are not aware of that because you have not heard the testimony. Okay. I have not heard it. I am telling you, if the testimony supports another defense it may be considered by the jury. Understanding those are defenses which a person may present, understanding the State has the burden of proving the allegations of murder beyond a reasonable doubt can you evaluate and consider, meaningfully consider all the evidence, the facts and circumstances in the case, consistent with my instructions on the law, on the aspects of it and be a fair and impartial Juror to both the State and the Defense.
JUROR: I would hope so.
THE COURT: I want you to be comfortable with that. Are you comfortable with that, being fair and impartial?
JUROR: Yes.
THE COURT: Okay. Now, understanding the defense of not guilty by reason of insanity as being claimed by Mr. Jones, that brings in verdict forms in the first phase, guilt or innocence of guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Those are four potential verdicts the jury may reach. Can you give meaningful consideration to each one of those potential verdict forms, considering the facts and evidence presented and considering my instructions on the aspects of those defenses and verdicts and be fair and impartial to both sides?
JUROR: Yes.
THE COURT: If the State fails to meet its burden or the jury finds the not guilty by reason of insanity the case ends. If a guilty verdict is found then the case proceeds to phase two. In phase two the jury has to impose sentence. They have got to consider two different sentences, only two. Life or death, nothing else, no middle ground, no other choices. In that phase, phase two, the State must then prove an aggravating factor, there are several statutory aggravating factors. Murder of a policeman, murder of murder, kidnapping of murder, murder of a child, multiple victims. Those are aggravating factors. The State must prove at least one of those beyond a reasonable doubt. Mitigators, the reason to impose the life sentence are also presented and considered by jurors. Mitigators provided by statute are the 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. Those are statutory mitigators. There is also other mitigators that are outside the statue and those are fair and can be considered by jurors.
The Defendant's walk in life, how he was raised up, did he come from a broken home, any personal circumstances he may have gone through prior to this event happening. Anything can be a mitigator which can be reason to impose a life sentence. Can you give meaningful consideration to the instructions the Court will give requiring the State to prove beyond a reasonable doubt an aggravating factor as well as consider any and all mitigating facts in reaching a verdict consistent with my instructions and be fair and impartial to both the State and the Defense in reaching a verdict.
JUROR: Yes.
THE COURT: Those are my questions.
THE COURT: Ms. Mayes.
SUZANNE MAYES: May it please the Court.
THE COURT: Yes, ma'am.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good morning, Ms. Clark.
JUROR: Good morning.
SUZANNE MAYES: My name is Suzanne Mayes, as a prosecuting attorney we represent the State of South Carolina in this prosecution. I really just kind of want to talk to you this morning and find out a little bit more about some of the responses you gave to the Judge just so we will know where you stand on these matters. One of the things that the Judge mentioned that during the course of the trial there will be graphic evidence involving brutality towards children. And you responded to the Judge you wouldn't know how that would affect you until you actually see it. Can you state with certainty that it won't affect you or do you just not know?
JUROR: I am sure it has got to affect me but I can't tell you how, I mean how it cannot affect me.
SUZANNE MAYES: And so just to follow-up a little more on that, when the Judge is asking about to what degree it may affect you, it is really to determine whether it could impact your ability to be impartial to both sides. Do you still feel like you wouldn't know the answer to that until you saw the evidence?
JUROR: I think, I want to say, yes, I could still be impartial.
SUZANNE MAYES: Okay. One of the things that you did mention on your questionnaire is about a group, maybe it was on a social media post, about a group that you were involved with, Defenders of Children. Does that ring a bell?
JUROR: Not right off hand.
SUZANNE MAYES: Okay. And then the Judge asked you a little bit more about your grandson and your caretaking responsibilities with him. Do you normally have him every weekday?
JUROR: Out of seven days, I have him at least five. My son's job, the days he takes off varies and his hours varies. So there are weeks, yes, I have him five days a week.
SUZANNE MAYES: And that is normally when he gets out of school. If it is a school like right now?
JUROR: Right.
SUZANNE MAYES: And then what is his normal, his routine the school year is over and summer break starts?
JUROR: And then I will have him full-time when his dad is at work.
SUZANNE MAYES: So even mornings before 2:00 p.m.
JUROR: Mornings could be, well, it depends. If he has opening shift then my grandson spends the night with me instead. If he works swings then I could have him from 11:00 to 8:00.
SUZANNE MAYES: Okay. And where does your son work?
JUROR: At the Chef Store. It is like a huge grocery store but for like restaurants and stuff like that.
SUZANNE MAYES: Now, another thing that the Judge was asking you about at the outset is whether you reviewed the three types of jurors and that was a sheet that you looked at before you came in here. And I am going to ask you to take a look at it again and I believe Your Honor has a copy of it on the bench.
THE COURT: I do.
SUZANNE MAYES: And I know, Ms. Clark, you said that you were not type one and then whether you were type two or type three, you said until I am put in that position I can't say.
JUROR: Right. So I guess maybe that is type three, I can't definitely say that no matter what I am going to choose life, I can't say that.
SUZANNE MAYES: Okay. Have you thought about the death penalty before you got the jury notice and showed up last week and found out that it was a death penalty trial? Do you have any strong views on the death penalty one way or the other?
JUROR: Not really any heavy thought, no. I never thought I would ever be in this position.
SUZANNE MAYES: Right. Most people here this week were in the same boat. From a standpoint of just trying to determine what your feelings are and having thought about it since last Monday when you came in and the Judge informed you, what are you general views on the death penalty?
JUROR: I had to do a lot of thinking about that in the last couple of weeks. At first I was against it because I think that the guilty person should stay alive and deal with what they have done. But then I am a Christian and so I do read my Bible and it just reminded me there are consequences to your actions. So, I mean, it could go either way.
SUZANNE MAYES: Okay. So having thought about it over the course of the last two weeks and considering consequences, do you feel that the law that is in place establishing the death penalty as a potential sentence, do you feel that is appropriate?
JUROR: I would think so.
SUZANNE MAYES: So you don't have a disagreement with the existence of the death penalty in South Carolina?
JUROR: No.
SUZANNE MAYES: Do you see situations where you believe it is appropriate for the death penalty to be enacted?
JUROR: I mean like, specific--
SUZANNE MAYES: It can be specific or general.
JUROR: I believe it has its place, yes.
SUZANNE MAYES: Okay. And considering all of that, I know the Judge explained there are two phases to the trial. In potentially a second phase of the trial it would only be two options for sentencing. And that would be the option of life without parole or the option of the death penalty. Are both of those options that you can consider?
JUROR: Yes.
SUZANNE MAYES: And beyond just considering it, my next question is, is the death penalty something that you and you just take a moment and reflect, that you in your heart of hearts is the death penalty a sentence that you can render if having considered all aggravating factors and mitigating factors, you believe that is the appropriate sentence?
JUROR: Again, I actually had to do a lot of soul searching because I knew this would come up and if it came to it then I would be able to do it.
SUZANNE MAYES: Okay. And when you say you would be able to do it, that is something that you feel firmly convinced of?
JUROR: As long as I am convinced of the facts and everything, yes.
SUZANNE MAYES: That the facts would support that sentence?
JUROR: Yes.
SUZANNE MAYES: And then the Judge explained some of the mitigating factors that would be presented during the course of the trial by the Defense and can include a long list of things, basically reasons to consider a life sentence. Would you be able to consider all of those mitigating factors?
JUROR: Yes.
SUZANNE MAYES: And in doing so, still recognize that even with the existence of mitigating factors, you would not have to necessarily vote for life but you can have the existence of mitigating factors and still make the decision for the death penalty if you deem appropriate?
JUROR: Yes.
SUZANNE MAYES: With the death penalty and the Judge may have eluded to this, I just want to ask a couple of follow-up questions on it. There is a specific form that goes along with that verdict. So if twelve jurors unanimously decide that the death penalty is the appropriate verdict, each Juror would sign their name to that form acknowledging that that is, in fact, the sentence that they choose to impose. Would you, Ms. Clark, be able to sign your name to that death sentence?
JUROR: Yes.
SUZANNE MAYES: No more questions.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Good morning, Ms. Clark, how are you?
JUROR: Good morning.
ROBERT MADSEN: My name is Rob Madsen and I am one of Tim's lawyers. Just kind of want to talk with you now about your feelings. You heard the Judge kind of go over and ask you a fair and impartial, just trying to ask you questions about what is just inside you. Okay?
JUROR: Okay.
ROBERT MADSEN: Did you know any of the other jurors on the panel when you came in, I guess a little over a week ago?
JUROR: Not that I could see, no.
ROBERT MADSEN: Some of the things that the Solicitor asked you about, I am going to just kind of ask you a little bit more and make sure of your understanding. You understand from what the Judge told you that even a guilty murderer is never required to be put to death. You understand that?
JUROR: Right.
ROBERT MADSEN: And that the law is satisfied with a life without parole sentence in this case, in any case and even the worst case that you could imagine. Do you understand that?
JUROR: Right.
ROBERT MADSEN: And as the Solicitor said, you kind of get, it is kind of like two different trials. We have the first trial that kind of determines guilty, not guilty, guilty but mentally ill or not guilty by reason of insanity. You understood that?
JUROR: Right.
ROBERT MADSEN: And if it is guilty or guilty but mentally ill you kind of go on to that second part of the trial. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And I want to talk to you about that second part. So assume you have already kind of gotten there with the other jurors. You understand that the State can present aggravating circumstances. You understand that, right?
JUROR: Yes, sir.
ROBERT MADSEN: And those have to be found unanimously and beyond a reasonable doubt. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And then there is also something that we talk about, mitigating circumstances. And do you understand that mitigating circumstances would be anything that would say, hey, life without parole is the appropriate sentence. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And you understand that mitigating circumstances don't have any type of burden of proof.
JUROR: Yes, sir.
ROBERT MADSEN: And so what that kind of means is that each individual Juror is empowered with finding what they find as mitigation. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And what that kind of means is, the Juror that sits right here could say, you know, I have heard all of the evidence and I see this spark of humanity, he has got a good relationship with his father and so I want to give that mitigation the vote of life. And they can do that. This Juror sitting here might say, you know what, I didn't see that but I saw that he has got mental health problems and for me that is what I want to give the vote of life for. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And they might disagree with one another but they have different mitigating circumstances that what they give up the vote of life for. You understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And even you could have this Juror sitting right here saying, you know what, I didn't see what either of them saw and I can't really tell you what my reason is. But, you know, I just know that to me I think a life without parole sentence is appropriate. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And after the consideration of the mitigation, basically the juror's decision on the appropriate penalty comes down to what we kind of call individual moral judgment. Have you ever heard of that before?
JUROR: No.
ROBERT MADSEN: So the way it was described to me, it is kind of like your faith. You have made an individual moral judgment of what the appropriate faith for you is. And someone over here might have made a different individual moral judgment about what their faith is. And you would expect them to respect what your individual moral judgment is on your faith, wouldn't you?
JUROR: Yes.
ROBERT MADSEN: And at the same time you would respect what their decision is?
JUROR: Right.
ROBERT MADSEN: You understand that?
JUROR: Yes, sir.
ROBERT MADSEN: Even though you might disagree?
JUROR: Right.
ROBERT MADSEN: And so when you are back in a jury room certainly you will talk with other jurors about what their decisions are, what they think. But you understand in the end each Juror has to make their individual moral judgment about what the appropriate penalty is?
JUROR: Right.
ROBERT MADSEN: And the law says that once you make that you can't change it just to kind of throw in, let's say the majority.
JUROR: Right.
SHAWN GRAHAM: Objection. I don't think that is a correct statement of the law.
THE COURT: I understand your objection. I will allow the question.
ROBERT MADSEN: And you understand that if, in the jury room, once someone has made their individual moral judgment, if bullying goes on or browbeating somebody out of their individual moral judgment, that that is not appropriate.
JUROR: Right.
ROBERT MADSEN: And are you someone that if you saw that going on could say, hey, they have made their individual moral judgment, they have the right to that. Could you step in and say, no, that this is past civil discourse, this isn't appropriate?
JUROR: Yes.
ROBERT MADSEN: And if it went to that point the law says that is inappropriate, you could write a note to the Judge. And say, hey Judge, it has gotten past civil discourse in here, we need you to step in and help. Could you do that if that was, if it had gotten to that point?
JUROR: Yes.
ROBERT MADSEN: Judge, subject to the Court's limitations no further questions.
THE COURT: Very well. Anything on the record from the State or the Defense?
ROBERT MADSEN: No, sir.
SUZANNE MAYES: No, sir.
THE COURT: All right, Ma'am, I understand the difficulty with your grandson, we will try to be mindful of that but based upon your answers on the questionnaire and all the questions I am going to find you qualified as a Juror in this case. What that means is, you are qualified and not excused yet. You will be on a list of other jurors that I described earlier. I want you to follow instructions on when to report back on the Lexington County website, the same one that told you when to come in this mornings, that same site. You are not looking at panels, numbers, whatever, qualified jurors, please check back, please report on a certain date and time. Follow that instruction's and come back in. Until that time you are under oath not to talk about the case, not to be questioned by anybody about the case, do not discuss the case with anybody, not to do any independent research in the case, social media, public media, otherwise. I want you, if selected as a Juror in this case, to make your decision fairly and impartially, based on what you hear in the courtroom, not outside the courtroom. What is outside the courtroom none of us have any control over. It is just information that we don't know where it came from. In here you will see and hear witnesses under oath testifying. I want you to consider and evaluate and make determinations of fact in this case on what you hear in the courtroom. So I want you to minimize any perusal or publicity in this case. Don't talk about the case, don't do any independent research, stay away from the media reports. Can you do that?
JUROR: Yes, sir.
THE COURT: Thank you very much and see you soon. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are we ready for the next one which will be Juror number 89. This guy wrote me an email about work problems, work issues. (Whereupon, Juror 89, Nathan Chapman entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Mr. Chapman, good morning.
JUROR: Good morning.
THE COURT: I am Judge Eugene Griffith presiding over the case, you are under oath since Monday, have you talked to anybody about the case since Monday?
JUROR: I talked to my wife and the owner of our company.
THE COURT: Has anybody discussed the case with you about the facts and what happened?
JUROR: No.
THE COURT: Now, there has been publicity about the case involving media, otherwise, several years ago, a couple of weeks ago, this week. I gave a publication of the indictment, the allegations the State is making against Mr. Jones to which he is presumed innocent. Has any of that information caused you to form an opinion in this case?
JUROR: No, sir.
THE COURT: All right. Now, I ask you over here, right before you came back in to be ready to tell me about your potential work conflicts, your personal conflicts on your calendar. I believe you communicated in an email to, directly to me?
JUROR: Yes, sir.
THE COURT: Tell me about that.
JUROR: I have got, my wife and I have a vacation that we have been planning for about a year to celebrate our 50th birthdays with nine other couples and all of that is paid for and suppose to happen next month.
THE COURT: What part of June, when?
JUROR: We leave the 21st.
THE COURT: I have got that same exact question from a member of my staff, the third week of June is going to impact that or not and based on what I am hearing from the lawyers we shouldn't, we should--
BOYD YOUNG: Yes, sir.
THE COURT: We agree with that.
BOYD YOUNG: Yes, sir.
THE COURT: That was my understanding, so we should be done by then. I have been telling other people this, if we find qualified jurors this week, I am looking for 45 to 50 qualified jurors from which to select a jury who will sit. We have got several, we are continuing to go through that process. My hope is to have that group of qualified jurors finished off by this week or very early next week so as to select the jury very early next week and start the trial. Now, there is witness logistics and whatnot and there, you work on construction so you have got to finish one thing before you start another.
JUROR: That was my other point, it is not my company but it would be a burden on the company as I am the only sales person.
THE COURT: Okay. Now, not impacting your personal schedule, you should be good on that. And the lawyers and I have been guessing, estimating, we start next week through May, early June, we should be done.
JUROR: Okay.
THE COURT: Nothing would impact your schedule there?
JUROR: No.
THE COURT: Now, I don't know, this is another question to you, the company you work for is Agnew Lake Service.
JUROR: Yes, sir.
THE COURT: It was involved with the employee issue and there was a case tried here in Lexington County involving two employers or former employees. Were you involved in that case whatsoever?
JUROR: No, sir.
THE COURT: Do you know anything about it?
JUROR: I do know about it.
THE COURT: Now, is that going to cause an issue for you being fair and impartial in the courtroom knowing I was the presiding Judge in that case and knowing that the Lexington Solicitor's office prosecuted that case. Have you got preconceived notions about that. I need you to be candid, okay. If you have awkward feelings because my understanding the employee of Agnew was convicted by a jury and got sentenced. Will that impact your decision to be fair and impartial in this case, me being the presiding Judge. I need to know that.
JUROR: I do not think it would.
THE COURT: I want you to be comfortable with it. The victim in that case was an employee of Agnew and he is no longer employed with Agnew, he does something else?
JUROR: That's correct.
THE COURT: His being a victim in that trial, would that impact, factor your ability to be fair and impartial in this case?
JUROR: No, sir.
THE COURT: Now, the subject matter of this case involves the death of children. The subject matter will be difficult, graphic, harsh, unpleasant. The lawyers have represented that to me. I don't believe they are exaggerating. I think they are being candid. Understanding that subject matter will be difficult and unpleasant involving a description of that, can you be fair and impartial in light of the subject matter, the testimony would be difficult and unpleasant?
JUROR: That is a tough one.
THE COURT: Here it is, we haven't seen any evidence. I haven't, you haven't, it will be presented. I need to know candid, can you be fair and impartial in light of that type of testimony. Everybody has personal experiences, I want to know what they are, if you have something in your past that would impact your ability to evaluate that kind of testimony we need to know.
JUROR: I just think it would be hard.
THE COURT: No question.
JUROR: I think I could, yes.
THE COURT: I want you to be comfortable with that because what I don't need is this. We get into the trial, it is too much, I can't do it, I want out. That is what I don't want to be faced with that, with that Juror.
JUROR: It has definitely been weighing on me since coming up and coming back and forth in my head. But I try to think that I could be.
THE COURT: Now, I gave preliminary instructions on the law, procedures of a Capital case meaning the State has got to prove the murder itself first in phase one. If the State fails to meet its burden of proof in the case it ends right there. If the State proves the murder it goes to phase two. In phase two the State has got to prove an aggravating factor and jurors consider mitigating facts of all different sorts and then they determine the punishment. There is two choices, life or death, no other choices, no other options, no middle ground. I provided to you a list, a summary of three typical types of jurors in cases like this. Can you identify yourself to one of those three types?
JUROR: I would be type three.
THE COURT: So you are the type that wants to hear all the facts of the trial itself, all of the facts of the aggravation and all the facts of the mitigation and then make a decision?
JUROR: Yes.
THE COURT: And in light of that there is, phase one, I want to discuss that with you for a moment. Do you understand right now Mr. Jones is presumed innocent. The State will go first and try to prove the murder beyond a reasonable doubt.
JUROR: Yes.
THE COURT: Mr. Jones has tendered a plea which he has claimed one of the defenses allowed in our laws. I am going to read to you all of the statutory defenses that are allowed and then come back and ask you if you can consider them. I don't know that all of them will apply but any of them will apply other than the one he has claimed. The Court will instruct all the jury panel on the aspects of which defenses are appropriate and how to consider them and that kind of thing. 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 defenses. If the testimony were to support some of that for the jury to consider I would instruct on those particular aspects. If it didn't support it you wouldn't hear the instructions. Can you give meaningful consideration to the instructions that the Court will give you at that time on the guilt or innocence phase to consider the State's burden of proving its case beyond a reasonable doubt and consider whatever defenses the testimony can allow the jury to consider, my instructions on those defenses and be fair and impartial for both the State and the Defense?
JUROR: Yes, sir.
THE COURT: Can you do that. Okay. Now, if there is a not guilty verdict, I am sorry, let me go back to this. Because of the defense that Mr. Jones submitted there is four potential verdict forms in phase one. There is guilty, guilty but mentally ill, there is not guilty by reason of insanity and not guilty at all. Those are four potential verdict forms the jury will consider at this time. The case will be presented, the jury will be instructed. Can you give meaningful consideration to all four of those potential verdict forms, consistent with my instruction's on the law and make findings of fact and reach one of those four verdicts?
JUROR: Yes, sir.
THE COURT: Now, if there is a guilty verdict go to phase two. At that time, then the State is tasked with proving an aggravating factor. The State has got to prove at least one and I will name off five. The murder of a policeman, rape of murder, kidnapping of murder, murder of a child, murder of multiple victims. Those are five aggravators. The State has got to prove one to the jury beyond a reasonable doubt. During the sentencing phase jurors are allowed to consider mitigating factors or mitigators. I am going to read those statutory mitigators to you that you could be presented evidence on. 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 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. Those are statuary mitigators, other mitigators which are not statutory could be considered by the jury is anything, the Defendant's walk in life, how he was raised, he came from a broken home, whether anything has happened to him in the past that could be of reason to give life rather than death. Can you, as a Juror, be fair and impartial and consider the burden of proof upon the State in proving the aggravating factor and consider any and all mitigation evidence which would be reasons to impose the life sentence and be fair and impartial but reach these conclusions consistent with my instructions on the law. Can you do that?
JUROR: Yes, sir.
THE COURT: Now, do you have any reason whatsoever, religious, moral, personal belief that would prevent you from signing the death penalty on the verdict form?
JUROR: No, sir.
THE COURT: Do you have any religious, moral, personal belief finding a verdict of punishment of life with the possibility of parole?
JUROR: No, sir.
THE COURT: Do you know any reason whatsoever you can't be fair and impartial in this case for any reason?
JUROR: No, sir.
THE COURT: All right.
THE COURT: Mr. Graham.
SHAWN GRAHAM: Thank you, Your Honor.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Mr. Chapman, my name is Shawn Graham and I am one of the Prosecutor's in this case. Have you ever served on a jury before?
JUROR: No, sir.
SHAWN GRAHAM: This is all brand new?
JUROR: Yes, sir.
SHAWN GRAHAM: I understand. And you understand that this is not a normal type of case?
JUROR: Yes, sir.
SHAWN GRAHAM: Normally there is a trial and the jury determines whether the Defendant is guilty or not guilty. In this case Mr. Jones has plead not guilty by reason of insanity which changes that up and there is actually four verdicts. So you could have guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty. So there will be four verdicts that the jury would need to hear based on the evidence that comes up during the trial. Do you understand that?
JUROR: Yes, sir.
SHAWN GRAHAM: Not guilty by reason of insanity means that he did the act but he was claiming he is not guilty because he didn't understand the legal or moral right or wrong of his action at the time of the killings. Does that make sense?
JUROR: Yes, sir.
SHAWN GRAHAM: So there will be experts who will testify and experts are a little different normal witnesses. Normal witnesses don't get to give opinions but experts, because of their background and training, do. So you may hear from psychiatrists and psychologists and other types of people who will get up and explain what they understand about the case, what people told them and then they get to render an opinion. Does that make sense?
JUROR: Yes, sir.
SHAWN GRAHAM: The weight that you would give them, would you be willing to listen to the experts?
JUROR: Yes, sir.
SHAWN GRAHAM: Okay. And you understand that just because they give you an opinion that doesn't mean you have to blindly agree with their opinion?
JUROR: Yes, sir.
SHAWN GRAHAM: Does that make sense. You still get to evaluate their credibility and you get to evaluate their reasoning and you still get to decide whether you believe those experts or not. You still get to make that decision even though they get to offer an opinion. Does that make sense?
JUROR: Yes, sir.
SHAWN GRAHAM: Knowing that, knowing that you are going to hear from these experts, not guilty by resown of insanity is one of the things that you would have to consider. Are you willing to listen to that testimony, judge it for what you think it is worth and then actually be able to give consideration to that type of verdict?
JUROR: Yes, sir.
SHAWN GRAHAM: Because this trial is a death penalty there is two parts. The first part would be listening to the evidence, going through those four verdicts and determining whether he was guilty or not guilty. You understand that?
JUROR: Yes, sir.
SHAWN GRAHAM: Okay. If you were a member of the jury and you and the other eleven members of the jury found beyond a reasonable doubt that he was guilty or guilty but mentally ill you would move into that second phase. In the second phase you would have to listen to, as a Juror, along with your fellow jurors, the first thing you would do is look for an aggravating circumstance. We can't even go to the death penalty until there is a murder conviction and an aggravating circumstance. In this particular case the aggravating circumstance is the murder of a child under eleven or multiple people being killed. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: Once you and your fellow jurors, if you did determine beyond a reasonable doubt those aggravating circumstances were present, only at that time would you be able to start looking at what the punishment would be.
JUROR: Yes.
SHAWN GRAHAM: And normally the Judge does the punishment but in this case the jury does. At that point, if we made it that far, you would hear aggravating factors, mitigating factors, things that make it sound worse than it already is and things in mitigation, as the Judge explained to you, to make it sound better or it is a reason that you could give life. And you and your fellow jurors could decide on that. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: All right. Mitigation is anything that the Defense wants to offer, it can be mercy in your own head for a reason to give life. So you understand that even though they present mitigation and you can see mitigation, just because it is there that doesn't mean that you still can't consider death as an option. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: If after hearing all the evidence, the mitigation, the aggravation, the good and the bad, is there any reason that you couldn't give a life sentence if you thought it was appropriate?
JUROR: No, sir.
SHAWN GRAHAM: If after hearing all the information, the good, the bad, the aggravation and mitigation, is there any reason that you couldn't give a death sentence?
JUROR: No, sir.
SHAWN GRAHAM: One of the other things that are different about a death penalty case is, if the jury unanimously finds that death is the appropriate sentence, all twelve members have searched their souls and decided that that is the right thing to do, have deliberated and discussed and as a group, all twelve, that that is the right thing. In a death penalty case, if the death verdict is reached each member of the jury has to sign their name on a document attesting to that fact that they think that death is the appropriate sentence. And the death will be carried out. Do you understand that?
JUROR: Yes, sir.
SHAWN GRAHAM: Knowing that, if you and your fellow jurors thought death was the appropriate sentence would you, personally, be able to sign your name on the document?
JUROR: Yes, sir.
SHAWN GRAHAM: Thank you, Mr. Chapman, I appreciate it.
THE COURT: Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, sir. I just want to remind you that these cameras that you see here, they are not rolling, no one is filming you so don't be nervous about that. Okay. And nobody is allowed to publish your name or any kind of identifying information about you. You are almost anonymous. Okay. And we put you in that position because we just want completely truthful answers, whatever your personal opinion is on all of these issues. Does that sound fair?
JUROR: Yes, sir.
BILL MCGUIRE: Can you tell me about this criminal trial that involved Agnew Lake Service employees. Were they your friends?
JUROR: Yes, sir.
BILL MCGUIRE: And they were tried by these prosecutors or somebody different?
JUROR: I am not sure who they were tried by.
THE COURT: Different.
BILL MCGUIRE: Different, okay. Somebody in the prosecutors office then. And did you attend any part of the trial?
JUROR: I did not.
BILL MCGUIRE: Okay. And there has been, how many employees got convicted?
THE COURT: One employee was conviction but one employee was the Defendant. So it was, the victim was terminated and the employee was still employed during the trial.
BILL MCGUIRE: Okay. And did you visit anybody when they were in jail or since they have been to prison?
JUROR: I have not visited.
BILL MCGUIRE: Have you written letters to them?
JUROR: I have.
BILL MCGUIRE: Okay. How about telephone calls?
JUROR: I actually did talk to them on the phone as well.
BILL MCGUIRE: Okay. And the Judge asked you the fact that your friend was convicted in this court, prosecuted by this office and sentenced by this Judge, you could still be fair?
JUROR: Yes.
BILL MCGUIRE: Okay. Now I am going to shift gears and talk to you, I am going to ask you about your views of the death penalty. If you found yourself Governor for a day and you had a Bill on your desk and you could have the death penalty or you could say we are not going to have the death penalty. Which way would you go?
JUROR: I would probably go for the death penalty.
BILL MCGUIRE: Okay. And that sort of implies that you believe there is some sort of purpose, the death penalty serves a purpose. Can you tell me what purpose, in your view, it serves?
JUROR: I still think an eye for an eye.
BILL MCGUIRE: Eye for an eye. Okay. So we can talk about this more in concrete terms. I want to ask you to do something for me. If you would, in your mind, just put yourself on a jury with eleven other people and you are on a case, criminal case, murder case. Murder, killing somebody with malice aforethought. Malice, an evil intent, hatred, hostility, that means it is not a case of self-defense, accident, voluntary manslaughter. This person, this case that you are sitting on with your eleven other jurors, the Defendant intentionally and knowingly, knowing right from wrong, killed five innocent children, one after the other. What are your thoughts about the death penalty as being the only appropriate and just penalty for that kind of killing.
SHAWN GRAHAM: Objection to the form of the question, Your Honor. I thought we had agreed to classes.
THE COURT: We did and I think he tried to stay in the class, y'all are pretty close.
SHAWN GRAHAM: Mischaracterization, I guess, of the question saying the only appropriate punishment.
THE COURT: Okay. I understand that. Rephrase that.
BILL MCGUIRE: I will rephrase.
THE COURT: That part of the question.
BILL MCGUIRE: Take only out, okay.
BILL MCGUIRE: So, in that situation, the type of case, the category of case, intentional killing, multiple innocent children. Your thoughts about the death penalty as the appropriate penalty for that kind of killing?
JUROR: Yes.
BILL MCGUIRE: Yes. And letting somebody live out their years in prison, that wouldn't be severe enough to punishment that kind of killing, right?
JUROR: No.
BILL MCGUIRE: And you feel strongly about this?
JUROR: Yes.
BILL MCGUIRE: And you are under oath and you know your answers are under oath?
JUROR: Yes.
BILL MCGUIRE: And it seems like you are giving great thought to your answers, you are taking your time. Is that right?
JUROR: I am.
BILL MCGUIRE: You are doing great. But it is true you are giving thoughts to your answers?
JUROR: Yes.
BILL MCGUIRE: And these answers about the death penalty that we just talked about, your view about the death penalty is appropriate in that case and that is a reflection on your value system?
JUROR: Yes.
BILL MCGUIRE: Who you are as a person?
JUROR: Yes.
BILL MCGUIRE: That is a reflection of your moral code?
JUROR: Yes, sir.
BILL MCGUIRE: And it kind of comes from a deep place within?
JUROR: Yes, sir.
BILL MCGUIRE: In that kind of case that we just talked about, intentional killing innocent children, that sheet that the Judge talked to you about, in that kind of case it sounds like you are the number one where the death penalty would always be appropriate?
JUROR: That is where you get into the different informations and the Judge, and have to digest. But just based on how you presented it and then I would say the death penalty unless there were other facts that would lesson my mind.
BILL MCGUIRE: Okay. I want to talk a little bit about how this process works and kind of walk you through it. If I say something that you don't understand or it is too wordy or I ask a bad question you just stop me, you ask me questions. Okay.
JUROR: Okay.
BILL MCGUIRE: The first phase of the trial, just like any other trial you might see on TV, do they have the right guy, is he really guilty beyond a reasonable doubt. All twelve people agree if it is true or if he is guilty, right?
JUROR: Yes.
BILL MCGUIRE: All right. And in the penalty phase the sentencing phase of a Capital case, it is more of an individual process where each individual Juror can decide for themselves to vote for the death penalty or the life penalty. Do you understand that?
JUROR: Yes.
BILL MCGUIRE: And the concept of mitigation that the Judge talked to you about, that can be any reason to not vote for the death penalty.
JUROR: Okay.
BILL MCGUIRE: Did you know that?
JUROR: I didn't.
BILL MCGUIRE: So the death penalty is never automatic. The State of South Carolina is satisfied with the life penalty in any case, the worst case, or this case. Did you know that?
JUROR: No.
BILL MCGUIRE: Okay. A lot of people thinks that if the Government proves A, B, C then it kind of leads you right to deciding the death penalty or not. Is that what you thought it was, if the Government proves their case it would be the death penalty?
JUROR: No, not necessarily. I mean I knew that there would be other--
BILL MCGUIRE: Options.
JUROR: Yes, you could do life or you could do death.
BILL MCGUIRE: So no Juror is ever required to vote for death. Did you know that?
JUROR: Yes.
BILL MCGUIRE: Okay. And it can be for, the Judge will tell the jury at the end of the trial, any individual Juror can vote for life for any reason, no reason or mercy alone. Did you know that?
JUROR: Can you restate it?
BILL MCGUIRE: Yes. Right. This is kind of a new concept for most people. At the end of the trial, if we get to a penalty phase, the Judge would charge the jury that any individual Juror can vote for life without parole for any reason, no reason or mercy alone. You probably have never heard that before?
JUROR: I understand, yes sir.
BILL MCGUIRE: Does it sound fair to you?
JUROR: Yes.
BILL MCGUIRE: An example of that would be, say this is the jury and the first Juror sitting right here could say, you know, I saw something in the man's mental health and I am not going to vote for death to kill a man where he has got a broken mind, I am not going to do that. That is my reason. And then the Juror sitting right next to him could say, I didn't really see that, I don't think that is necessarily true but I saw something in his relationship, the Defendant's relationship with his father and I saw a spark of humanity there, hope of redemption. That is my reason to vote for life without parole. And you can see how they have different reasons and they don't have to agree. Did you know that jurors don't have to agree on why?
JUROR: I did not know that. That is the one question I did have, does it have to be unanimous on the jury.
THE COURT: Unanimous verdict for the death penalty, all jurors sign the verdict form, the death penalty is carried out. If it is unanimous on a life sentence, the life sentence is imposed and carried out. Go ahead.
BILL MCGUIRE: And what do you think happens if you have six on one side and six on the other, what do you think happens if they can't come together.
SHAWN GRAHAM: Objection.
THE COURT: That is an improper question, sustained.
BILL MCGUIRE: Okay. So the way the rules of court work is once a Juror comes to their individual moral judgment, that is how this decision is described in the law, kind of a conscious held position, very personal. You agree that whether somebody lives or dies, that might be the hardest, most personal decision any human being can ever make.
JUROR: Absolutely.
BILL MCGUIRE: And the way the law and the rules work, is that if a Juror decides that they want to vote for the life penalty, life without parole, the have a duty and obligation to stick with that position and not change it if it would harm their conscience.
SHAWN GRAHAM: Objection, Your Honor, it is inappropriate.
BILL MCGUIRE: That's the law.
THE COURT: I think that is an appropriate question, I overrule that objection. I don't want it characterized otherwise, with some other words we have discussed with another Juror.
BILL MCGUIRE: Right, I have worded it down a bit.
THE COURT: All right.
BILL MCGUIRE: So, the rules of court require if a Juror reaches their individual moral judgment where they have a conscious belief and that is right for them, they have a duty and obligation to stick to that position and not change it if it would harm their conscience. Is that a principle of the law that you could respect?
JUROR: I thought you could hash it out in the jury room to determine, that is not the case?
BILL MCGUIRE: Absolutely. We would expect reasonable and reasonable deliberations and civil discourse. And, but once somebody makes up their mind for themselves, it is their individual moral judgment, conscientious held belief, they can't change that position just to go with the other side. They can't let the group speak for them, it has to be their own change of position and nobody else can change it if it is just for the sake of joining the others. Did you know that?
SHAWN GRAHAM: Objection.
THE COURT: That is a lengthy question. I will allow it. We discussed the no coercion and that--
BILL MCGUIRE: I am getting that.
THE COURT: Okay, I will allow.
BILL MCGUIRE: Did you know that is how the, that is probably a new concept, does that sound like a fair principle to you?
JUROR: I would think that I would change an answer but I thought that that was the whole purpose was to get all twelve jurors, if it is not all twelve jurors then it is a hung jury. Is that correct?
BILL MCGUIRE: Well, you would receive further instruction from the Court if you reached that point.
JUROR: Right.
BILL MCGUIRE: That would have to happen and then you would get further instructions from the Court.
JUROR: Okay.
BILL MCGUIRE: We can't tell you right now.
THE COURT: The Court will give you instructions if y'all weren't able to reach a verdict as to how to try to resolve that, that dispute.
JUROR: Okay.
BILL MCGUIRE: Does that sound fair?
JUROR: Yes.
BILL MCGUIRE: Okay. And let's say you saw a Juror member and you were convinced in your heart that person has reached their consciously held position and it would harm their conscience to change their position and they wanted to vote for the life penalty and you saw that folks were trying to coerce that person, maybe bully that person. And that person, as I contemplate the rest of my life, my mortality, I don't want this black mark on my soul, I do not want to vote for the death penalty but you saw people trying to force them to abandon that position. That is wrong, I will just tell you, the rules of court says that is wrong, could you step in and stop them?
JUROR: I don't know how I would stop it.
BILL MCGUIRE: I want to give you a suggestion. Pass a note out to the Judge and said, as the rules of the court require that everything be conducted with decorum and dignity, we expect deliberations would have to be civil discourse, not bullying. And if you saw bullying and dignity had left the jury room you can write a note out to the Judge saying, dignity has left, this is not civil discourse anymore, there is some bullying and, Judge, could you stop that. Could you do that?
JUROR: Sure.
BILL MCGUIRE: That is all I have for you.
THE COURT: Mr. Graham, anything else?
SHAWN GRAHAM: Briefly, Your Honor.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Mr. Chapman, I want to go over some of the questions Mr. McGuire was asking you. Even in the case of, if you got to the second phase, and you as a member of the jury had determined as an aggravating factor that a child under eleven was murdered and multiple children were murdered--
BILL MCGUIRE: Your Honor, I can't hear Mr. Graham.
THE COURT: Okay, he is speaking softly, speak up.
SHAWN GRAHAM: In the second phase when you would be considering the aggravating factors, if you and the other jurors had unanimously decided that a child under eleven had been murdered or multiple people had been murdered. Do you understand where we are at?
JUROR: Yes, sir.
SHAWN GRAHAM: In that case you would still be a type three Juror, you would still want to hear the good and the bad and you could still consider life and you could still consider death.
BILL MCGUIRE: Objection, asked and answered.
THE COURT: We are readdressing it, go ahead.
SHAWN GRAHAM: Is that correct?
JUROR: Yes, sir.
SHAWN GRAHAM: In talking about the jury deliberations, when you are back there in the second phase and you are and the rest of the jurors are having your conversations about what you saw, what you didn't see, what your thoughts are, listen to their thoughts. You understand that you always have the right to change your opinion?
JUROR: Yes.
SHAWN GRAHAM: Thank you.
THE COURT: All right. Mr. Chapman, I am going to have you step in the hall real quick, I have got to put a couple of things on the record and I will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, Mr. McGuire, you want to be heard?
BILL MCGUIRE: Yes, Your Honor. Just briefly. I move to strike for cause. When becoming aware of the category of the case, the aggravators, he indicated that the death penalty was always appropriate, the life sentence would not be severe or harsh enough to punish that kind of killing. So he is substantially impaired despite the fact he gave some inconsistent answers. And he would be a burden shifter, clearly and we would have to get him off of that and that would be burden shifting. This would violate Mr. Jones Constitutional rights to a fair and impartial jury under the Sixth Amendment and due process clause under the Fourteenth Amendment.
THE COURT: Mr. Graham.
SHAWN GRAHAM: Your Honor, I think that he replied that he would always be for the death penalty in that case, whether he leaned one way or the another, depending on the aggravating factors he is not disqualified. He said that he would still need to, he said there were other factors. I think the quote was, he did say death penalty unless there were other factors. He is willing to listen and he made that abundantly clear that he was going to listen. I personally think this is an area we are not suppose to go into because we start staking out people. So, he may be predisposed, he may think that that is the appropriate punishment but he is not saying it is the only punishment that he would be imposed. He still said he wanted to listen and I think that the question is unfair, which is why I objected to, the way it is worded because when you ask somebody if it is appropriate you are not really getting to the matter can they consider everything which is truly the reason to determine, that is the information that is needed to determine whether they can be a Juror or not. When I re-questioned him on that he said that he would want to hear the good and the bad before he made up his mind. He is qualified, Your Honor.
THE COURT: All right. Is there anything else that needs to be delved into about the lawyer in the other case that I was the presiding Judge on?
RICK HUBBARD: No, sir.
THE COURT: That probably causes me more concern than y'all then.
RICK HUBBARD: No concern here.
BILL MCGUIRE: And, Judge, just for the record, I would agree with Mr. Graham that he is predisposed and would be, for him to follow the evidence, he is not a qualified Juror. That if there is a Juror that is predisposed to recommend a sentence of death in a case of intentional killing such that there is a reasonable basis for which the trial Court concluded that this Juror would not be able to follow the instructions, his or her responsibilities as a Juror of the law, that is predisposed to that Juror and I believe this Juror meets that description.
SHAWN GRAHAM: Your Honor, I just ask to go to the totality of the circumstances, his answers to you, his answers to Mr. McGuire and myself.
THE COURT: I am going to go back to the employer again. This is what I recollect about the results of that trial. It was a shooting and aggravated assault with a self-defense defense. I recollect there being some harsh feelings towards the Defendant and his employer, towards the Court.
BILL MCGUIRE: I would be happy if you want to let him go for that reason.
THE COURT: It was harsh reaction during that trial when the verdict came in and I imposed sentence. They expected that kid to walk out of the courtroom and he is at the Department of Corrections under an eighty-five percent sentence from me. He has heard something about it. I am getting to the point, just for that reason alone I don't really--
RICK HUBBARD: Your Honor, I appreciate your personal feelings on that based on a prior trial. Obviously the office that I represent that prosecuted him, we are the reason for this. But this man said, although he had that friendship, he didn't indicate how he felt about the case. He has a friendship with this guy. But his answers on this case, whether he could be qualified and fair and impartial in this case, even with you sitting as the Judge, his answers were consistent. And for that reason, Judge, I think he has got to be qualified based on his answers. Ultimately that is what we have got to go back to, his answers. And, Your Honor, I think that is where it is, I don't think there is anything he indicated that would say that he retains a hostility. Maybe some folks in his company do. But he certainly had an opportunity, particularly when you were asking him and then even when Mr. McGuire got up and directly hit that issue again. He kept saying he could be fair. I think we have got to take him at his word.
BILL MCGUIRE: Judge, I think it is in your discretion.
RICK HUBBARD: It is your discretion, Judge, it is.
THE COURT: Bring him back in here.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Chapman, based upon everything that has been presented the Court and the Court's knowledge of everything going on, the Court is going to find you not qualified to be a potential qualified Juror in this case. And thank you for your patience with us and coming in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are y'all ready on 426.
RICK HUBBARD: I do have something real quick, Your Honor.
THE COURT: Sure. We have two recurring questions that we keep objecting to. One is staking out and it is the recurring question about -- I want all the lawyers to be in here when we put this on the record because I agree, we keep revisiting the same ground. They will be here in a second, I hope. If not I will send you for them. Okay, go ahead, Solicitor.
RICK HUBBARD: Thank you, Your Honor. Two types of questions keep coming up. One is just the bold staking out question that is being asked just about to every perspective Juror. There is a variation but it goes something like, the guy has been convicted of an aggravating murder and brutally killing, getting into the facts, little kids. Is that--
THE COURT: Multiple children.
RICK HUBBARD: Multiple children, sometimes it has been five kids. Does that sound like a case where the death penalty should be imposed. That is clear staking out, even if they don't say always or it must be, it is clear staking out because it is not balanced, it is confusing to a Juror that there are also mitigating circumstances that Your Honor have already gone over that they have to consider. It is not fair to the Juror, it is just a bold staking out and then they are saying, ah-hah, when this Juror answers like this last Juror did, well, now he can't be fair even though every other answer is I want to hear it. That is the first objection. The second one that keeps coming up, so we get to the penalty phase and they are talking about the individual, how do they classify it.
THE COURT: Individual moral judgment, mitigating factor and there is three jurors over here that have different mitigating factors. Is that the line you are talking about?
RICK HUBBARD: That line and particularly where it ends, and you have a duty under the law to basically not change your mind. And if that is the case this is not the America that live in. Because everybody has a right to change their opinion, even their most personal private deeply held opinions.
THE COURT: Said that three times.
RICK HUBBARD: Exactly. I think, Judge, I would like to nip that question, just say, Your Honor had proposed early on, you know, you have to reach your own decision, but you have to hear the others. And you can't be bullied out of your decision, leave it at that. Without us objecting every time.
THE COURT: I tend to agree with the Solicitor that this is the question that is creating heartburn for me is multiple murders, children victims, murder, murder, death penalty is the only result, the only penalty that you should give. Give me your comments. That is an unfair question.
BOYD YOUNG: Your Honor, it is Morgan, it is straight out of the Supreme Court case, United States Supreme Court case, Morgan versus Illinois. He actually ask a Juror, how do you feel about the death penalty, is the only appropriate punishment for somebody who has been convicted of aggravating--
RICK HUBBARD: -- that question is not in Morgan, it is not. Morgan just stands for, we get to probe, the Defense gets to probe their positions. That question, the way it is couched and phrased is staking.
BOYD YOUNG: Judge, I just want to make sure the record was clear. The only person who has said the brutal murder or five murders is the Solicitor. The Solicitor said brutal murder, the Solicitor said five murders. We have said multiple murder of children. He also used the term, baby, one time which we haven't used. And the transcript will speak for itself. Now, the category of the case, the multiple murder of children is the appropriate question based on Morgan and that is the question that jurors have to be able to answer. Are you, some people think that the death penalty is the only appropriate punishment for this type of case. Is that you, is it not you.
THE COURT: How about that. Do you think, leave it at that, do you think that the only appropriate, if multiple murders. Y'all are leading with a huge lengthy explanation, seems like staking out most of the time and then go, would you agree or give me your comments on the death penalty is the only appropriate response. Y'all's questions, the Defense particularly, lengthy, considering all of these facts and these facts and these facts and these facts. And then a very short question, would you agree with me. I mean, y'all are doing that a lot and it is, you are tacking on a lot of stuff on the potential jurors by asking questions in that fashion. The one you just said, do you think that death is the only appropriate result if there is multiple murder of children.
RICK HUBBARD: That is my objection because, and Your Honor sustained that. That is my problem, is that, they haven't even heard questions about, you know, there is going to be mitigating circumstances provided. So they nip this Juror before he has heard anything and says, is that the only one that is going to be appropriate. I have got to object every time, that is clear staking. That is why I would suggest that in order to comply with Morgan, they get to ask where a Juror fits and feels but they can't ask it that way.
THE COURT: I am not sure they can. I mean, I understand what you are trying to say but, we have been doing the multiple murders of children, that is the classification, they started that, we ended up at. I don't know how else to allow them to ask that question other than that fashion. But what I am, it is creating this thing to go on too long and it is, all right, assuming the fact and they give a long, long explanation of the graphic facts, it gets longer and longer. The questions are hugely long and difficult to follow. We are following it because we have heard it seventy-five times, too many. So can we fashion a more simple question.
RICK HUBBARD: What I would ask Your Honor, is that any question that says is this the only verdict that is appropriate is wrong, it is just, that is where it is just to me it is unfair to a Juror. They haven't heard anything and then they are asked, is this the only one that is appropriate. Judge, then, my gosh, if they take a misstep, oh my gosh, you have got to strike them. That is just patently unfair to a Juror, patently unfair.
BOYD YOUNG: I totally agree with the Solicitor that a response to, death is appropriate in that situation does not result in, all right, the Defense is done, Judge, kick him, let's get out of here. There is an absolute follow-up question. Judge, do mitigating circumstances, the background, walk in life, the factors that the Judge has read to you, are those ever going to change a juror's mind. Is that enough for you to be able to consider life in a case of multiple murder of children. That combines with your start at death. Do you require the defense to prove to you, those follow-up questions are absolutely important. It is not a one question in a substantial impairment. It is up to Your Honor--
THE COURT: Both sides have asked the same question multiple times during the questioning. I am going to allow that question but I don't want an extensive summary of the classification of multiple murders of children. That is where, I don't want any expansive adverbs or adjectives in addition to that because where we keep getting slowed down.
BOYD YOUNG: I have to just check in to make sure you understood what the Judge said was murder. Do you understand what, when I say, murder--
THE COURT: And when you say, murder, the State proves all of this and all of this and all of this and all of this and all of this and would you agree. I think I have already done that. Y'all are repeating a lot of what I say the second time through. It is just getting lengthier and lengthier.
BOYD YOUNG: Yes, sir.
THE COURT: I am going to allow the question but I want it simplified.
BOYD YOUNG: Yes, sir.
THE COURT: The second question, the Solicitor is right. The Defense, depending on who is asking the question says this. You understand when a person reaches their individual moral judgment it is improper or not allowed or illegal, it is against the law. Y'all have used several different characterizations of that. I think it is an appropriate question to say, once a person reaches their individual moral judgment, you understand that the person is not allowed to be bullied out of that decision. You can maintain that opinion, you can change your mind but you can't be bulled out of that. But it has been suggested that once a person has reached that decision that they are going to be acting illegally and against the Court's instructions. And the way y'all emphasize it, it sounds like they could be charged with a crime. I mean, it is harsh the way you characterize it, it gets illegal to change your mind. It is illegal to abandon your reason, your moral decision if it is going to injure the constitution and your morals. I suggest that, y'all kind of gotten away from it and gotten back to it. But for the questions we got to earlier which were, you understand you have got to reach that moral decision. And once you do it is okay to stick with it. You can't be bullied out of it. But that is fine. But it is when you go, you realize it is illegal or immoral. I mean, that is where I am getting heartburn too and the Solicitor is not objecting to it every time but y'all migrated back to a more harsh use of the word than improper.
BOYD YOUNG: I understand where the Court is on that. The language that I have used, you understand that your oath to insure that your individual moral judgment, whatever it is, is heard in the courtroom.
THE COURT: That is fine. I think you are correct, it wasn't utilized, I am not sure which one it was.
BOYD YOUNG: The other issue is the Defendant, question which, of course, the State used yesterday to move for the excusal of a Juror where they asked eleven people are over here and one person over here. Will you change your mind and go along with the majority, that is the Bennett question. They asked that a Juror to be excused based on their use of the Bennett question and that question is fair game.
THE COURT: The Bennett question is fair game, you are saying that?
BOYD YOUNG: Yes, sir.
THE COURT: All right. Would you change your mind just to go along with the majority. That is the Bennett question that is allowed.
BOYD YOUNG: Yes, sir. If there are eleven people on one side--
THE COURT: And I think that is what the State asked yesterday to that young lady sitting up here.
BOYD YOUNG: It was.
THE COURT: That was okay.
BOYD YOUNG: Yes, sir.
THE COURT: But you can't bully someone into changing their mind but if somebody just changed their mind to go along with the majority--
BOYD YOUNG: That would be a violation of their oath and--
THE COURT: But not illegal.
BOYD YOUNG: It would be impairing their ability to follow the law.
THE COURT: Okay and I agree with you on both of those. I think the State does too.
RICK HUBBARD: Yes, sir. As long as when it comes to changing the mind, a Juror needs to know they are always free to change their mind. So if it is just, you change your mind it needs to be, you give up your position just to go along with the majority. That is what my question was yesterday.
THE COURT: That is the Bennett question, I am just going to end this, I will go along with the majority. We are on the same page. And, Mr. Young, you understand?
BOYD YOUNG: Yes, sir.
THE COURT: We don't want to go into these violations anymore.
BOYD YOUNG: Yes, sir.
THE COURT: All right. Let's get 426. (Whereupon, Juror Doris Taylor entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Taylor.
JUROR: Yes, sir.
THE COURT: Can you spell your first and last name for me.
JUROR: D-O-R-I-S; T-A-Y-L-O-R.
THE COURT: Ms. Taylor, I do that for the record for Ms. Holston and it kind of gives me an opportunity to hear you on the microphone.
JUROR: Okay.
THE COURT: You are still under oath?
JUROR: Yes, sir.
THE COURT: I ask the same questions to every Juror. Have you talked about the case with anybody?
JUROR: No, sir.
THE COURT: Have you discussed, has anybody tried to discuss the case with you?
JUROR: No, sir.
THE COURT: Now, there has been publicity, social and regular media. There has been publicity, I published the indictments, I read them in open court.
JUROR: Yes, sir.
THE COURT: Monday. Any of that information you received from any source whatsoever, has that caused you to form an opinion as to what happened in this case?
JUROR: Since you read it?
THE COURT: No, no. Any time because I mean, I couldn't control what you read or saw beforehand. So whatever information you may have, you received, from where it came, don't care.
JUROR: Yes, it has.
THE COURT: Have you formed an opinion?
JUROR: Yes, sir.
THE COURT: What do you think happened?
JUROR: I mean, he has already confessed to killing the children from what I have read a while back.
THE COURT: Would that impact your ability to be fair and impartial in this case?
JUROR: I think so, yes.
THE COURT: Okay. Fair enough. That is all I need. Thank you, Ma'am. That is what I am looking for is an honest answer. Okay, you are free to go.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's get 156. (Whereupon, Juror 156, Zachary Gantt entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Mr. Gantt?
JUROR: Yes, sir.
THE COURT: Mr. Gantt, I want you to say and spell both of your first and last name.
JUROR: Z-A-C-H-A-R-Y; G-A-N-T-T.
THE COURT: Mr. Gantt, you took an oath Monday, you took an oath this morning.
JUROR: Yes, sir.
THE COURT: I am asking the same questions of all the jurors. You have heard my request to not talk about the case with anyone?
JUROR: Yes, sir.
THE COURT: Have you talked about the case to anyone since Monday?
JUROR: No, sir.
THE COURT: Anybody tried to talk to you about the case?
JUROR: No, sir.
THE COURT: Now, there has been publicity, social, public, whatever, plenty of coverage on this case over the last several years at different times. I told you some facts about the case regarding the allegations of the charges against Mr. Jones to which he has plead not guilty, he is presumed innocent. Considering any information that you may have received at any time, including Monday, have you formed an opinion as to what happened in this case?
JUROR: Honestly, I have no recollection of who he was or in this case until Monday.
THE COURT: Now, having your memory refreshed over something that occurred sometime ago, do you have an opinion now as to the facts of this case? And look here, you are not going to give me any wrong answers. I just want honesty and candor, there is no right or wrong answer in the way to answer that.
JUROR: I believe anybody is innocent until proven guilty.
THE COURT: Okay.
JUROR: I believe that all the evidence and the facts should be presented and taken into consideration when you are talking about somebody's life especially what this case deals with.
THE COURT: Right. And that is a fair answer and truthful. I can hear your sincerity. Now, I read to you, I will ask you a question about your work schedule, personal schedule, whatever schedule for the next several weeks. The case may start next week and go on for three weeks, the early part of June. What do you have on your calendar that would be, impact directly if you were selected as a Juror. Do you have any prepaid vacation or something scheduled to have a--
JUROR: No, sir. I am a HVAC installer so I have a busy work schedule but obviously if I am required to be here by law I will be here. Other than that, I really don't have any vacation.
THE COURT: Do you work for somebody?
JUROR: Yes, sir.
THE COURT: You are not self-employed?
JUROR: No, sir.
THE COURT: Okay. Y'all are pretty busy when the weather warms up, aren't you?
JUROR: Yes, sir.
THE COURT: Now, I gave you a summary, I will ask you another question. This case matter, the subject matter of this case involves the death of several children. The subject matter will be testimony and evidence in regard to the death of children. That subject matter has been represented to me and I have not heard all of the testimony and evidence, I have seen a little bit of it but not very much. I have been told that it is graphic, difficult, harsh and unpleasant. The lawyers involved in this case would not have told me that if that not were the case.
JUROR: Yes, sir.
THE COURT: Would the subject matter of that type be difficult for you to hear and evaluate and make a decision in a case like this but also in light of that being fair to both the State and to Mr. Jones?
JUROR: No, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: Okay. Now, I gave you a preliminary instruction on the law, kind of described the two-phase concept of a Capital trial. Guilt or innocence, punishment. Guilt or innocence has got to be determined first before the punishment stage occurs. The State has got to prove the first phase beyond a reasonable doubt of murder. Then the second phase starts, the aggravating factor has got to be proven by the State beyond a reasonable doubt and then mitigating factors are considered by jurors. I handed out for you to read, before you came in, three types of potential jurors. Can you identify or find yourself as one of those types, I understand you have got limited facts.
JUROR: Yes, sir. Reading all three I find myself torn between, I see myself as type three but depending on the facts I can quickly bring myself to type one, depending on the facts and evidence.
THE COURT: Okay. Now, that being the case, let me ask you this. I am going to go over the guilt or innocence portion, I am going to kind of break them back down. The testimony would go this way. The State has got to prove murder first. The State has got the burden of proving that beyond a reasonable doubt. So they will call witnesses, present testimony about the unlawful killing with malice and try to convince the jury beyond a reasonable doubt of that. During that phase defenses are allowed to be presented by the Defendant. And I will read all the potential defenses, I am going to tell you now that all of them will not be instructed, some of them may be present, one of them has been claimed already by Mr. Jones. I will read them all to you and then I will come back and ask you another question. Potential defenses are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi.
Those are potential defenses that are afforded to people from the statutory books back here. Can you give meaningful consideration to the instructions of the Court on that, to respect to those defenses, if they are appropriate. In other words, are the facts for which you are to consider to evaluate was not the present, if there is no fact there to evaluate, like alibi, somewhere else, that would be an instruction that one of the Defense claimed. Testimony is out there, the jury considers the instructions of the Court. The jury considers the instructions of the Court requiring the State to prove its case beyond a reasonable doubt. Can you give meaningful consideration to the testimony and evidence in the guilt or innocence phase and consider the instructions that are appropriate, meaningful consider the defenses the Court instructs you on and be fair to both sides
JUROR: Yes, sir.
THE COURT: Can you be fair to the State and the Defendant in this case?
JUROR: Yes, sir.
THE COURT: Now, if a verdict is presented to the jury's consideration, because of the plea entered by Mr. Jones there are four potential verdicts, results that could come out. Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Those potential will be on the verdict form. Can you give meaningful consideration to all four verdict forms, be fair and impartial to both the State and the Defense, considering the facts and evidence presented, instructions of the Court and make a determination on each and all four of those verdict forms.
JUROR: Yes, sir.
THE COURT: And can you do that fairly and impartially and not favor one side or the other?
JUROR: Yes, sir.
THE COURT: Now, if there is a not guilty verdict the case ends, it stops right there. If the State meets the burden of proving the murder the case goes to phase two. At that time the State is then required to prove an aggravating factor. There are five aggravating factors and the State has got to prove at least one, murder of a police, rape of murder, murder of kidnapping, murder of a child, multiple victims. Those are aggravating factors. The State has got to prove at least one to the jury beyond a reasonable doubt for it to seek the death penalty. Jurors are presented mitigating factors, mitigating evidence. There are numerous statutory mitigating factors, I am going to give you those. 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 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. There are other mitigating factors other then the statutory ones, whatever the jury wants to consider and can assign a reason, I find that mitigating, his walk in life, the way he was raised, broken home, whatever, anything. Those are the statutory ones, not all of them may apply, some of them might. You will hear testimony of a wide variety of mitigating factors.
In the sentencing phase, knowing the jury's tasked to impose a sentence, there are two choices, life without parole, death. There is nothing in between, no middle ground, no other options. Can you give meaningful consideration to the testimony offered by the State regarding aggravating factor and their requirement to prove that beyond a reasonable doubt as well as consider any mitigating factors that are presented to you, give meaningful consideration to all of those and consider the instructions of the law by the Court and make a fair and impartial judgment in imposing a sentence in this case?
JUROR: Yes, sir.
THE COURT: You can do that?
JUROR: Yes, sir.
THE COURT: Do you understand the death penalty is not automatic?
JUROR: Yes, sir.
THE COURT: One choice or the other. You consider all aspects of the aggravating factors and the mitigating factors. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, do you have any religious, moral or personal belief which would prevent you from finding a sentence of death?
JUROR: No, sir. I believe in God and I believe we have a maker. I believe you have to take consideration all evidence when you are talking about somebody's life. When you are talking about somebody who took somebody's choice to live or not, if the evidence finds that it is, calls for the death penalty then I feel like as human beings we have to determine whether we decide to take the choice of that person's choice to live or not.
THE COURT: That is an individual choice each Juror makes on their own.
JUROR: Yes, sir.
THE COURT: Okay. Now, do you have any religious, moral or personal belief that you could not impose a sentence of life without parole?
JUROR: No, sir.
THE COURT: So you could find either one?
JUROR: Yes, sir.
THE COURT: And you want to hear the facts, both aggravating and mitigating during the sentencing phase to make that determination?
JUROR: Well, what is right is right, what is wrong is wrong.
THE COURT: Okay.
THE COURT: Okay, Solicitor.
RICK HUBBARD: Thank you, Your Honor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Gantt, I am Rick Hubbard. I am the Solicitor in this case. Thank you for being here.
JUROR: Yes, sir.
RICK HUBBARD: I just want to ask you a few questions, just kind of following up on what the Judge has asked you and what your answers were. Now, have you ever served on a jury before?
JUROR: No, I had jury duty, I can't remember, it was last year I think, maybe, last year. But it was a traffic court and when I showed up at the door back here, it was like it has been dismissed, you can go home. So I didn't even see inside the building.
RICK HUBBARD: So you lucked out?
JUROR: I lucked out.
RICK HUBBARD: On this case, obviously this is a big case?
JUROR: Yes, sir.
RICK HUBBARD: And so there is no right or wrong answers. The Judge has told you that, we just want to know who you are, what your thoughts are and determine, the Judge needs to determine the qualification for each Juror. That is why you are sitting where you are sitting right now.
JUROR: Yes, sir.
RICK HUBBARD: Picking up on where the Judge asked you about this process, you understand it will be up two different phases in this case?
JUROR: Yes, sir.
RICK HUBBARD: The first phase is just like any trial you probably ever thought about where you determine whether somebody is guilty of doing the offense or not.
JUROR: Yes, sir.
RICK HUBBARD: And in most cases when somebody is found guilty the Judge sentences them. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: But in a death penalty or Capital case the jury's do the sentencing, not the Judge?
JUROR: Yes, sir.
RICK HUBBARD: Now, typically if we convict somebody with the Judge, you know, in a regular case we bring the Defendant up and the Judge hears stuff that didn't come out in the trial about the person.
JUROR: Yes, sir.
RICK HUBBARD: Maybe things about that person's life. And maybe hear stuff from us as well. In a Capital case you, the jurors, get to hear that stuff. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: When the Judge was talking about aggravating circumstances and mitigating circumstances. Do you understand?
JUROR: Yes, sir.
RICK HUBBARD: So when a jury is sitting right behind me convicts somebody of murder and all murders are aggravated or have malice.
JUROR: There is a reason why behind every choice we make.
RICK HUBBARD: Yes, yes. So once somebody is convicted of murder, a jury says, yeah, he did it. The next step for them is the punishment?
JUROR: Yes, sir.
RICK HUBBARD: Now, the Judge has said you are going to hear those two types of evidence, aggravating and that you can only give death with aggravating. You can only do it if the State proves beyond a reasonable doubt at least one aggravating circumstance. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: And there is mitigating circumstances. Things about the Defendant, maybe things that are good that make you say, you know, maybe a life sentence is okay. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: So if you were to sit on a jury, any jury, particularly something with this type of consequences and you have reached with your colleagues, your co-jurors, the decision he is guilty of murder, maybe even more than one murder, depending on what the charges are. Would you already have your mind made up coming in that second phase or would you want to hear additional stuff of the good and the bad, the aggravating and the mitigating before you made that big decision?
JUROR: Me personally?
RICK HUBBARD: Yes.
JUROR: Like I said, I think every ounce of information, evidence, facts, mitigating, everything, needs to be taken into consideration before the final decision.
RICK HUBBARD: Is that why you said you are a type three, you would put yourself in that position because you would want to hear aggravating and mitigating good and bad?
JUROR: Good and bad. Like I said, what is right is right, what is wrong is wrong. And one is not going to alter the other one, you just need to take into consideration everything. You are in a court of law. If the evidence at the end of all of this, mitigation, aggravation, all of that, if it constitutes for the death penalty then what is right is right, what is wrong is wrong.
RICK HUBBARD: So you are saying after you hear all of that, if you believe death is appropriate you could issue a death sentence?
JUROR: Yes, sir.
RICK HUBBARD: Would you also be capable and willing, if you hear all of this evidence, both the aggravating evidence that the State is going to present and any mitigating evidence that comes out in this trial about the Defense or the Defendant, would you consider that and be willing to issue a life sentence?
JUROR: Yes, sir.
RICK HUBBARD: Are you a person who has your mind made up coming into this courtroom or do you want to hear facts?
JUROR: I want to hear facts. You are talking about somebody's life.
RICK HUBBARD: Yes, sir. And when you are stepping into that next phase where you are talking about punishment, do you want to hear everything before you make that big decision or are you going to automatically say if he committed a crime, committed a murder, even multiple murders perhaps, it is automatic death. Which one are you, automatic or are you going to hear everything and then make a decision?
JUROR: Like the Judge said, you have got life sentence in prison or death penalty, no in between. I want to hear everything before I make my final decision.
RICK HUBBARD: Mr. Gantt, I think that is all that anybody in this courtroom can ask you to do. I appreciate that.
JUROR: Yes, sir.
RICK HUBBARD: Thank you, sir.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Mr. Gantt.
JUROR: Hello.
BOYD YOUNG: How are you doing?
JUROR: Doing all right.
BOYD YOUNG: I appreciate your patience with us this morning.
JUROR: Yes, sir.
BOYD YOUNG: As the Judge told you, we are just here to talk about your opinions, there are no right or wrong answers here. Is that right?
JUROR: Yes, sir.
BOYD YOUNG: The Judge told you that Tim has entered a plea of not guilty by reason of insanity. You understood that?
JUROR: Yes, sir.
BOYD YOUNG: And you understood a plea of not guilty by reason of insanity says I killed my kids but because of a mental disease or defect, I was not able to appreciate the difference between legal or moral right from wrong. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Two questions. Do you think that, some people think that that is just an excuse or that is just letting a guy off. Is that you or is that a defense that you could give meaningful consideration to?
JUROR: There is people born in this world that, not born but they acquire it, whether it be how they are raised in life, it doesn't matter, that can have a mental disease because confliction on decisions. And I understand that, I acknowledge that.
BOYD YOUNG: Is that a decision that you could see yourself finding, if you found, based upon the evidence, that that was an appropriate verdict could you return that verdict?
JUROR: Based upon the evidence, all evidence.
BOYD YOUNG: Right.
JUROR: Yes.
BOYD YOUNG: And that would be all the facts and circumstances around the crime, the murders?
JUROR: Yes, sir.
BOYD YOUNG: The killings?
JUROR: Yes, sir.
BOYD YOUNG: I am going to move forward a little bit and talk to you about your views after you found somebody guilty of murder. Okay?
JUROR: Yes, sir.
BOYD YOUNG: You understood the Judge's definition of murder?
JUROR: Yes, sir.
BOYD YOUNG: Any questions about that, the intentional killing of another, malice aforethought?
JUROR: No, sir.
BOYD YOUNG: And then we have the aggravation circumstances where we have multiple children killed. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Some people say, based on that, if I find beyond a reasonable doubt guilty, guilty, murder, multiple children, the only appropriate penalty for me is the death penalty. Is that where you are?
JUROR: It is hard to, when you ask me these questions I go back to the evidence. Like, when I hear the evidence I can give you a legitimate reason. I mean, if that is the case then me, personally, yes, if you took somebody's life and took their choice to live or not, purposefully and willingly then I think that your, you forfeit your chance to have a choice to live or not.
BOYD YOUNG: Okay. When they forfeit their chance to have a choice to live or not, are you telling me that that choice is going to be up in the hands of the jury or do you think that the appropriate punishment is death?
JUROR: I think if the jury comes to the verdict of a death penalty then the punishment should be death, yes.
BOYD YOUNG: I think I understand where you are at. The stuff about a Defendant's background, character, how he grew up, those are the facts that would be presented by the Defense in mitigation. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And I know that you told the Judge that you could be a type three Juror who could quickly be persuaded to be a type one Juror based on the facts and evidence.
JUROR: Yes, sir.
BOYD YOUNG: Is that right?
JUROR: Yes, sir.
BOYD YOUNG: This stuff about the house where they were raised, what their background is, how they grew up, that would be the stuff in mitigation that the Defense would offer to a jury to say this is why we think you should go with life without parole sentence. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: Some people say that stuff, it doesn't have anything to do with the killings. And that is not important to me in making my decision about which punishment is appropriate. Do you understand people like that. A lot of people had a hard life and it doesn't excuse what they did.
JUROR: Yes, sir.
BOYD YOUNG: You know people like that?
JUROR: I know people that has had a hard life. But what you are explaining there is, I feel like when it comes to taking another human's life and you are talking about how they are raised and stuff. It is basically like, if your family raised you to be a Carolina fan and when you get older you are a Carolina fan, you can't really explain it, you are just, that is how you are brought up. That is your background. But here you are talking about taking somebody's life. So the way you are brought up could have a lot of consideration of your reason or why but you are still taking another human being's life. I don't really know how else to word that.
BOYD YOUNG: Sure and I think I asked my question and I made a poor chose of words, Mr. Gantt. Are you somebody who can, who says I will need to, before I decide whether or not to end somebody's life I need to weigh their whole life, their good, their bad, their past, their future?
JUROR: With me personally, I want to hear everything, everything.
BOYD YOUNG: Okay.
JUROR: You are talking about somebody's life.
BOYD YOUNG: Right.
JUROR: So what is right is right, what is wrong is wrong.
BOYD YOUNG: And I want to talk to you a little bit about mitigating factors and the Judge has given you some, those are reasons for a Juror to choose life. Okay, are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And I think the Solicitor explained to you a little bit about, they don't have a burden of proof, it doesn't have to be unanimous. All the jurors don't have to agree. Each individual Juror can decide for themselves what is or is not mitigating. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: And it can be any reason, no reason or mercy alone. Do you understand that was how it worked?
JUROR: Yes, sir.
BOYD YOUNG: Could you respect the right of a Juror to say, I don't have a reason but I feel that life is the appropriate punishment for me. Could you respect a jurors right to do that?
JUROR: To say he doesn't have a reason but he feels that way?
BOYD YOUNG: Yes.
JUROR: Like I said earlier, there is a reason to why everything we do.
BOYD YOUNG: Sure.
JUROR: My personal belief, the choice we make. I believe if you are going to make a decision like that you should be able to at least explain it and explain why you feel that way. I mean, feelings are up in the air, I mean you have to explain why you feel a certain way.
BOYD YOUNG: And the Judge is going to tell you, the law is you can give a life sentence for any reason or no reason. And it sounds like to me if a Juror says I don't have a reason, I think life is the appropriate punishment, that would be in conflict with your view on how it should work?
JUROR: Well, I think it is, I could be wrong saying this, this is how I am feeling right now. I believe it is y'all's job to give us the reason, to give us the facts.
BOYD YOUNG: Sure.
JUROR: And when we have the facts, we feel the way from the facts because of the reasons that we give.
BOYD YOUNG: I am going to stick a pin in that and I am going to come back to it in just one second. Okay.
JUROR: Yes, sir.
BOYD YOUNG: This ultimate decision about who lives and who dies. The law refers to that as an individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And an individual moral judgment is like choosing what faith is appropriate for you. You have made your own personal moral judgment about what faith is appropriate for you. Is that right?
JUROR: Yes, sir.
BOYD YOUNG: And you understand that other people may have made different choices about what faith is right for them.
JUROR: Yes, sir.
BOYD YOUNG: You respect their right to have their own choice even if it is different from yours?
JUROR: Of course.
BOYD YOUNG: You expect them to respect your right to make your own individual moral judgment?
JUROR: Yes, sir.
BOYD YOUNG: Now, this decision we are talking about, this individual moral judgments, somebody might say I don't have a reason. This is what feels right for me, I can't put it into words, I can't explain it to you, it is right for me. You understand that?
JUROR: Yes, sir.
BOYD YOUNG: About the individual moral judgment, like faith. Somebody might say, I can't explain it to you, this is what I feel is right. Back to my question, can you respect a juror's right to say, I don't have a reason, this is my individual moral judgment, this is what is right for me, I have got to do it.
JUROR: It might sound harsh when I say this. But if they say that after being presented the facts, I don't believe they should be here.
BOYD YOUNG: Okay.
JUROR: They are not taking seriously.
BOYD YOUNG: No?
JUROR: Yes.
BOYD YOUNG: You think that is not taking--
JUROR: I think after you are presented the evidence and the facts, you have a reason of the way you feel and the way you are going to be weighed to, to the decision you make.
BOYD YOUNG: Okay. I understand where you are coming from. The law also says that for mercy alone, solely on the basis of mercy a Juror can choose life on that base along. I have seen mitigation, I have heard all the aggravation, I just choose to extend mercy. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Based on your, do you think mercy is something that is sort of freely given or is it something that is earned?
JUROR: I can't really answer, it depends on the situation.
BOYD YOUNG: Fair enough. Could you respect the right of a Juror to say, I just want to be merciful, I am going to choose life because I want to be merciful.
JUROR: Yet again, like what the Judge said, there is no between, I don't see how you can be here and be fair to both parties if something says, well, I feel merciful. What is right is right and what is wrong is wrong.
BOYD YOUNG: Okay. It is the duty and obligation of each Juror to make sure that their own individual moral judgment is heard in court. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: Based on the limitation I am going to stop there. Thank you, Your Honor.
THE COURT: Anything, Solicitor?
RICK HUBBARD: Quick follow-up.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Gantt, when we talk about mitigating factors.
JUROR: Yes, sir.
RICK HUBBARD: Those things that don't have to be proven beyond a reasonable doubt.
JUROR: Yes, sir.
RICK HUBBARD: You would, as a Juror, you would consider those?
JUROR: Things that--
RICK HUBBARD: Mitigating factors, those things that basically are to the benefit of the Defendant, maybe his background, his relationships with others that explained who he is, all of those things that they might want to present to say, hey, there is a big picture here we want you to see. Would you be willing to consider all of those mitigating factors before issuing a sentence?
JUROR: I am thinking, it needs to be within a recent timetable. Anything else, to me, how you are raised has a play in it, how a life you came from has a play in it. But when we are here for these, the murders of these kids, needs to be involved around this. Do you know what I mean, I can't really explain that better. The mitigating factors that have something to do with the case. But also, I mean, when you are talking about somebody's life, how long this could take, this whole process. I mean, there is nothing wrong to me with getting all the facts, all the evidence.
RICK HUBBARD: Well, let me ask you this. What if there is a position that says, look, what we want to show you going way back has a lot to do to explain with this event. Would you be willing to consider that and hear it?
JUROR: Yes, I don't see why it could do any wrong. But, like I said, for me personally, you know, what happened twenty years ago when you are in elementary school doesn't have anything to do with your decision making now. Do you know what I mean. I really don't know how to word that or explain that any better. But like I said, I will be willing to, I mean when you are talking about somebody's life, like I said, if the Defense wants to give up their facts, the Prosecutors wants to give their facts, I am willing to listen to both before making an ultimate decision.
RICK HUBBARD: And ultimately, no matter what though, you could render a verdict for life or death?
JUROR: Yes, sir.
RICK HUBBARD: And that would depend on facts or just feelings?
JUROR: Facts.
RICK HUBBARD: Okay. Thank you, sir.
THE COURT: All right. I want you to step in the hall, I have got the lawyers a couple of questions and have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, Mr. Young.
BOYD YOUNG: Your Honor, we would move to excuse Mr. Gantt, he is substantially impaired in his ability to follow the law. He is mitigation impaired. And I know he wants to do what the law requires him to do and he wants to do his civic duty. I don't doubt his earnesty in that belief. But his ability to give meaningful consideration to mitigation is substantially impaired. He says, what he did twenty years doesn't matter. It all has to involve around the facts of the case, around the killings. And I didn't bring that out, that was brought out by Mr. Hubbard. He is also impaired in his ability to follow the law in that he can not allow, he could not respect the right of other jurors to give a life penalty for any reason or no reason or to, for another Juror to consider mercy. And those impairments substantially impair his ability to follow the law as given by Your Honor because he would not allow a Juror to say, for me mercy is appropriate. He says, no, we have got to have facts. Based on those reasons we move to excuse him.
THE COURT: All right, Solicitor.
RICK HUBBARD: Your Honor, we have had an SCDC Chaplain who was, who basically said the same thing, she wasn't concerned about the past and about background. She was qualified with no objection. Here is what, and, Your Honor, I know this guy was kind of all over the board. But the big thing he wanted to hear was facts. He is a facts guy. Now, I think he has got a right to come to a courtroom and say, even be qualified by saying, there is some types of mitigation that I am not interested in. But he didn't shut the door on mitigation. Something twenty years ago he has a hard time understanding. I get that and I think a lot of people can understand that. They want to see how does it tie into the crime and ultimately what I particularly try to do is let them know, that is exactly what the Defense is going to try to do is who that it does have a bearing on the crime. So he is looking for that bearing, that is it. Not just facts for the information, for the sake of information. Hey, do you know that back in the day he used to love ponies. Who cares about that, what does it have to do with this crime. Well, if they start talking about prior relationships and his mother, his father, those things may very well have a bearing on that night because that is how they are going to caption their defense. So, he is going to be listening to those facts.
THE COURT: Anything else, Mr. Young?
BOYD YOUNG: Your Honor, obviously the Court has told him that there is no nexus required for mitigation, for his consideration. But he, himself, requires it and that is why he is impaired in his ability to follow mitigation. The prior Juror who wasn't objected to by the State, as far as whether or not they are or are not mitigation impaired. I know the State brought up the SCDC Chaplain. She did, I did have some concerns based on her overall views. I thought she was qualified and I didn't object. To say that I didn't object to her, I can't object to him is just wrong.
THE COURT: You made the opposite argument yesterday but I, I agree with your statement. He stated repeatedly he wanted to hear all the facts, all the facts before he makes a huge decision of taking someone's life. I find him qualified based on the totality of all of his testimony. I think that is, considering what he presented, questions both sides asked him. That is my decision to find him qualified. Bring him back in here.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Gantt, based upon your responses to the questions of the Court and the lawyers I am going to find you qualified to be a Juror. It does not mean you are a Juror.
JUROR: Yes, sir.
THE COURT: It means you are potentially a Juror, so you are qualified. So you go to the website and check to see what the qualified jurors responsibilities are, when to report back. It is going to say, check back, check back tomorrow, finally it is going to say, please report back on a date and time. It will be back in this courtroom most likely or this Court House some where. So I want you to follow that. Until that time and throughout the trial, I don't want you to discuss the case with anybody, don't let anybody discuss this case with you. I don't want you doing any independent research. I do not want you to be perusing social media and, or public media. I want you to take the oath, which you have given me your oath, that you will not do any gathering of facts, trying to form opinions prior to the trial. I want you to form your opinions and testimony here in the courtroom, not outside the courtroom because that is not fair because no one has control. You can decide this case based upon the Court's instructions and based on what you hear in the courtroom. If you bring into or allow any influence outside the courtroom to influence your decision you are not living up to your oath.
JUROR: The facts are in this room, not outside the room.
THE COURT: Absolutely. Can you do that.
JUROR: Yes, sir.
THE COURT: Will you do that?
JUROR: Yes, sir.
THE COURT: I will see you when you get called back.
JUROR: Yes, sir. (Whereupon, the Juror was excused from the courtroom.)
BOYD YOUNG: Your Honor, we object under the Sixth and the Fourteenth Amendment.
THE COURT: You are protected. We will take our lunch break, about forty-five minutes. Come back at 1:15.
(Whereupon, a lunch break was taken.)
THE COURT: If y'all go back through a question the second time I am going to say asked and answered. I want you to move on, we have got to be moving on with this thing. You can't keep asking the same question and that goes for everybody. But if I have heard it, it has been answered, I am going to say asked and answered, move on. Give you fair warning. Bring me the panel in here. (Whereupon, Juror 199, Barbara Howell-Stevenson; Juror 159, Richard Gentle; Juror 372, Tonya Sasser; Juror 62, Todd Buehrig; Juror 495, Amy Wright; Juror 136, Robin Ehrlick; Juror 244, Ladonna Lee; Juror 56, Elizabeth Brown entered the courtroom.)
BOYD YOUNG: Your Honor, after this panel I want to put something on the record about Juror 156.
THE COURT: Okay, now is not a good time to do it. Okay. The panel is coming in. I tried to feed y'all because I didn't know how long, some panels are taking less time, some a little more time. That last panel took a little extra time because of some issues we discussed. Now, here is the way it is going to work. I will have y'all back in here in a few minutes. You will be placed under oath momentarily, I am going to ask you questions about your upcoming anticipated personal schedule or work schedule that would impact your ability to serve. Then I am going to ask you some questions about your knowledge of the case and whatnot. And then the lawyers get to follow up on some of the aspects of my questions with questions they want to ask you about your ability to consider everything. That is how we will go and most of the questions, a lot of the questions deal with personal feelings and beliefs. So sometimes there is no wrong answers, always no wrong answers. Those beliefs may lead to other questions that can lead to other questions and that is how we get slowed down sometimes. So, depending on how the question is answered, we still need your candidness and honesty. So Madam Clerk, will you place this entire panel under oath for me. (WHEREUPON, the jury panel was sworn at approximately 1:45 p.m.)
THE COURT: I have read this brief instruction on the criminal procedure and some aspects of criminal law to the other panels. I am going to read it just as I read to them therefore everybody is getting consistency in the instructions. So I apologize for not telling you the instructions, I have got to read them. 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 will be the presiding Judge. Mr. Jones is charged with five counts of murder. 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, 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 seek the death penalty.
Before and during a trial a person accused is presumed innocent of each element of the crime to 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 phases potentially. The guilt or innocence phase and then if necessary the punishment phase. In 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 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.
Those two choices of punishment are 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 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 factor beyond a reasonable, I am sorry, if the State proves murder and an aggravating circumstance jurors are required to consider any mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. 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 is imposed. In this case the State has indicted five counts of murder and has notified Mr. Jones 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.
JUROR: wide variety of testimony may be presented to you in the trial. I will instruct you as to how to consider and evaluate the testimony, whether 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 the exact instruction of the law that I will give on each of these, but when you come back in I will ask you, can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I have instructed it and consider the evidence consistent with those instructions. So that will be the question that will be posed to you in addition to others. So those are my instructions, retire to the jury room. Wait, don't discuss the case back in the jury room, there has been publicity, I will ask you about that. But I don't want you to create your own conversation so don't discuss the case. Cameras aren't on, so your names and photographs are not being published or gathered in this hearing today. Okay. Step in the jury room and we will call you in one at a time. (Whereupon, the jury panel was excused from the courtroom.)
THE COURT: Mr. Young, you said you wanted to put something on the record about the Juror, 156.
BOYD YOUNG: I did, Your Honor. We had objected on two grounds on Mr. Gantt's qualification and the first one I think Your Honor ruled upon that he was not substantially impaired in his ability to consider mitigating circumstances that were not casually related to the killing. The second objection to his qualification, based on his inability to consider mercy as a grounds for a life sentence and just ask the Court to rule referring to that second objection.
THE COURT: I think by qualifying him I ruled on all of those. So that is my ruling.
BOYD YOUNG: My lawyer wanted me to make sure, Judge.
THE COURT: Okay, I just did.
BOYD YOUNG: Thank you.
THE COURT: Bring me in 199. (Whereupon, Juror 199, Barbara Howell-Stevenson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Spell your first and last name please.
JUROR: Barbara, B-A-R-B-A-R-A; Howell-Stevenson, H-O-W-E-L-L-S-T-E-V-E-N-S-O-N.
THE COURT: Do you go by Ms. Howell-Stevenson?
JUROR: Yes.
THE COURT: Very good. Ma'am, I asked you, I am going to ask you the same question I ask everybody else. Generally in the same order. You are under oath, I put you under oath Monday to not talk about the case. Have you talked about the case to anyone whatsoever?
JUROR: No.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: Yes.
THE COURT: How did that conversation go?
JUROR: I can't discuss it.
THE COURT: All right, and that was pursuant to my directions?
JUROR: Right.
THE COURT: Now, I made a publication of the indictments and whatnot during the Monday gathering, last Monday. The indictments says thus and so and I gave you facts of the allegations made by the State against Mr. Jones. You have heard those because I said them.
JUROR: Right.
THE COURT: Now, there has been other publicity about this case, since Monday, prior to Monday, even several years ago, all sorts of publicity. Whatever the publicity is or information you have heard or gathered from any source whatsoever. Have you formed an opinion as to what happened in this case?
JUROR: I didn't know anything of this case until I came to court, when you read the indictments.
THE COURT: That is all you have heard?
JUROR: Because I didn't live here in 2014.
THE COURT: Okay. And that is a very reasonable explanation why you didn't hear the publicity because you weren't here to hear it. Now, have you formed an opinion based upon my reading of the indictments?
JUROR: I just had certain questions.
THE COURT: Okay and we will hopefully get to those. Now, I told you first because I was going to ask you about your availabiity to be a Juror over the next three weeks. Because hopefully the jury trial will start next week and continue on for late May or early June. So your availability for those several weeks is what I am concerned about. What have you on your schedule that will be impacted if you were asked to be a Juror?
JUROR: Well, I am on disability and I do not work. But I was suppose to start a part-time job today but they realize I am on jury duty. And that it may continue for sometime and my job will still be there when I am ready.
THE COURT: Other than starting today, that is an impact on you but other than that nothing else?
JUROR: Nothing.
THE COURT: Very good. I asked you to, I am going to ask you this. The case involves circumstances, facts which will be testified to regarding the death of several children. That is the subject matter of this case. I am told and informed by the attorneys representing both sides, the testimony is going to be graphic, harsh, unpleasant, difficult. Those are some of the words that I have heard, some using their words. They are not representing to me those words if that weren't exactly what is going to be presented to jurors and to the Court for consideration. Would consideration of testimony and evidence of that subject matter, unpleasant, be difficult for you to consider and still be able to render a fair verdict for both the State and the Defense?
JUROR: Yes but to be upfront I suffer from severe depression. And if a note is needed I can get a note from a doctor.
THE COURT: Okay.
JUROR: I mean I take medicine every day for it.
THE COURT: Okay.
JUROR: But I could still perform my duties.
THE COURT: Okay. Understanding you are getting treatment but my question would be, with you hearing about the condition, evidence of deceased children affect your ability to be fair and impartial, affect your health that you couldn't perform jury duty and continue it?
JUROR: It would not affect my decision as far as the Defendant.
THE COURT: Okay. What I am looking for is this, is people to be jurors who understand the testimony is going to be tough. In spite of that they can still consider it and be fair to both sides notwithstanding it being tough. Can you do that?
JUROR: Yes.
THE COURT: Okay. Now, I gave you a summary just a moment ago, procedure in this case, two step procedure in a Capital case is a little different than a regular case. Two steps meaning, phase one, phase two. Phase one is guilt or innocence. If not guilty is determined the case ends.
JUROR: Right.
THE COURT: If guilt is determined, the State has met its burden of proof then we go into phase two and that is when punishment is determined. The jury considers if the State has proved an aggravating factor and considers mitigating facts. Mitigating facts are anything that would cause you to vote for a life sentence as opposed to a death sentence. The Defendant being raised up having a tough childhood, broken home, he has never committed a violent crime before, something, I am going to read those to you in a little bit. Those would be things jurors will consider. Now considering various limited facts I have given you, as the allegations of five murders, you reviewed the three types of jurors in this case?
JUROR: Right.
THE COURT: Or into every case just about for a Capital case. Can you identify yourself as one of those particular types?
JUROR: Yes.
THE COURT: With only the facts you have?
JUROR: Yes.
THE COURT: What type would you be?
JUROR: I believe it was number three.
THE COURT: I have got them right here if you want to see them.
JUROR: It is number three.
THE COURT: Number three and that means you want to hear everything before you make a decision?
JUROR: Right.
THE COURT: Now, I am going to go back and kind of break down into smaller pieces. In the initial phase, phase one, the guilt or innocence phase. The State has the burden or proving the murder at that time beyond a reasonable doubt. They have got to prove the killing of another with malice. During that time it is appropriate for a Defendant accused to present defenses if they so choose if they have facts to support them. We know by entering of the plea by Mr. Jones that he is going to tender or has tendered a plea of not guilty by reason of insanity. He is going to present on that to some degree. Potential defenses available, I am going to read them all and then ask you my question. Potential defenses and these all may not be instructed at the end of the case but these could be. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are statutory defenses that a person may claim. If the testimony supports one of those defenses the jury will be instructed on the aspects of that particular defense. Can you give meaningful consideration to any instructions I give on those defenses if they are appropriate for the jury to consider and be fair to both sides
JUROR: Yes.
THE COURT: Can you consider the instructions of the Court regarding the burden of proof upon the State to prove its case, all elements of the murder, beyond a reasonable doubt and be fair to both the State and the Defendant?
JUROR: Yes.
THE COURT: Now, Mr. Jones has entered a plea of not guilty by reason of insanity and by that plea there are four potential verdicts that could be on the verdict form. Guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty whatsoever. Considering those four particular verdicts that are available, can you give meaningful consideration to each and every one of those potential verdicts, considering my instructions on those verdicts and while evaluating the testimony and evidence, fairly and impartially, understanding the State has got a burden of proof, beyond a reasonable doubt on its portion of the case. Can you be a fair and impartial Juror under those circumstances?
JUROR: Yes.
THE COURT: Now, if a finding of not guilty occurs, the case ends. If the State meets its burden it goes to the next phase, phase two. Phase two is when the State is required to prove an aggravating circumstance, the State has got to prove one aggravating circumstance to being able to seek the death penalty. Potential aggravators are murder of a police officer, murder of a child, rape of murder, kidnapping of murder, multiple victims. Those are potential statutory aggravators. The State has got to prove one of those beyond a reasonable doubt for you to consider the death penalty, for them to ask you to consider the death penalty. Statutory mitigators, reasons to not impose the death penalty are also given to the jury for their consideration and I am going to read those to you. The Defendant had no significant history of prior criminal history involving the use of violence against another person. The murder was 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 mitigating facts. There are others like his walk in life, how he was raised, his physical condition, all sorts of things. Can you give meaningful consideration to both, the aggravating factor the State has got to prove beyond a reasonable doubt and any mitigating factors that are presented to you and give consideration of my instructions on all of that law and reach a fair and impartial, be a fair and impartial Juror in the sentencing phase of the case?
JUROR: Yes.
THE COURT: Now, in the sentencing phase, there are only two choices, nothing is automatic, the death penalty is not automatic. Some people think it is, it is not. The State proves murder, it goes to phase two. Phase two, the State has got to prove the aggravating factor and the jury considers any and all mitigating facts. Two choices, life or death, nothing else, no other options, no middle ground, those are your two choices that the jury gets. If a jury reaches a verdict unanimously of life without parole that sentence will be carried out. The jury unanimously finds the death penalty is appropriate that sentence will be carried out. A Juror has to sign the death penalty, each and every one, all twelve. Could you sign the verdict form if that were the case and the facts are proven?
JUROR: If proven, yes.
THE COURT: Okay. Now, do you have any religious or moral, personal belief that would prevent you from finding a death penalty sentence?
JUROR: No, I believe in it.
THE COURT: Scoot up to the microphone so we can hear you.
JUROR: I believe in the death penalty.
THE COURT: Now, do you have any religious, moral or personal belief which would prevent you from finding a life without the possibility of parole sentence?
JUROR: No.
THE COURT: Now, one last question for you. You mentioned to me that you are being treated for depression, it is under management right now?
JUROR: Yes.
THE COURT: Do you believe that that condition could impact your ability to be fair and impartial in this case?
JUROR: No.
THE COURT: Okay.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon.
JUROR: Good afternoon.
BOYD YOUNG: Howell-Stevenson, is that right?
JUROR: That's right.
BOYD YOUNG: Okay. As the Judge told you, there are no right or wrong answers here, we are just talking to you about your feelings about some stuff. Okay.
JUROR: Okay.
BOYD YOUNG: And I want to thank you for taking the time to fill out your questionnaire and you shared a couple of things with us that I imagine were very difficult experiences for you and if you need to talk about anything, sort of with just the Judge and the attorneys let us know and we will talk about it like that. Okay.
JUROR: Okay.
BOYD YOUNG: You shared with us that you had a sister that was murdered?
JUROR: Yes.
BOYD YOUNG: Can you tell me about that?
JUROR: They listed it as a suicide. She lived on Gibson Road, right across from the sheriffs department in the little patio homes. She had just left me that morning to come home and she was shot and killed by her ex-husband. But they did list it as a suicide. I do not have respect for Lexington County Police Department.
BOYD YOUNG: Okay. Would having that experience where Lexington Police Department or the sheriffs department was involved in the case, would that be difficult for you?
JUROR: It was not investigated which made it very difficult for me because I went to see them several times. And he called an ambulance to himself and took himself to a mental hospital after he shot her. And he is still walking the streets.
BOYD YOUNG: He was never prosecuted?
JUROR: He was never prosecuted.
BOYD YOUNG: In addition to that experience you also had a, had a friend who was murdered.
JUROR: My son's best friend was murdered at 31 years old, right off of Cherokee Ridge or whatever it is, Cherokee Home.
BOYD YOUNG: Was it, can you tell me about that, like what happened with that?
JUROR: There was a party going on across the street from his home, he is 31 years old. I had known him since, before he was born. This friend of mine, I had been with her 40 years. For some reason Derrick's roommate had went out of the house and had been drinking. Derrick was not a part of the party across the road. There were also law enforcement involved in this party that had been going on across the road. But Derrick had went out to stop his friend, Chris, from driving off in the car. It was early morning, like 2:00 a.m. And that is the only reason Derrick, that Derrick was outside of his house was to stop Chris from leaving the home drunk. And neither of the two were at the party across the road. It was, the case of Nicewonger. Derrick was shot three times. I mean, he, he was like my own son. And he was shot in the leg, the gun was right at his chest, put at his chest and shot again in the chest and he was shot in the face by just, we don't even know what happened. It was, he was never, they drug tested and did all kinds of tests on Derrick which all come back with no drugs, no alcohol, no nothing in his system. But they never tested Nicewonger which I have strong feelings on that because, you know, he was having a party, there was lots of people there. Like I said, there was even some police officers there. And I felt like it was an injustice done to him because, like I said, I had known this child since birth and there was no, they said there was a fight but there was no evidence of a fight, no hand marks, no scuff marks, no nothing. But Derrick was shot three times. And he layed dieing in the road.
BOYD YOUNG: Please understand that I am very sorry you went through those experiences, those are tough. And I can tell that those are hard.
JUROR: He was like my boy.
BOYD YOUNG: Yes. This is your time, I mean this is a murder case involving the murder of children and I know the Judge has asked you about that. Can you do it?
JUROR: Yes. I can be fair and impartial. I have had to live through a lot of things. My growing up was very rough, my father was an alcoholic, I seen things as a child no child should ever see. I have one son who served both in the Navy and in the Marines. He was in Iraq twice and Afghanistan once. His best friend dies in his arms. You know, I mean, there was so many things that I saw as a child that you just can't make judgments on.
BOYD YOUNG: Okay. I want to thank you, I appreciate that. I am going to move forward and talk to you a little bit about the defense that the Judge talked to you about, the not guilty by reason of insanity plea. Okay?
JUROR: Okay.
BOYD YOUNG: When there is a plea of not guilty by reason of insanity, I did the killing, I did the crime. But because of a mental disease or defect I was not able to appreciate the moral or legal wrongfulness of my conduct. Do you understand what I am saying there?
JUROR: Yes.
BOYD YOUNG: And I think, some people say that that is just a copout, that is an excuse, it is not a real verdict that I can really consider in a case like this. Is that you?
JUROR: No, I have depression, I have been institutionalized. I realize what the difference between insanity and what I have exist.
BOYD YOUNG: Has your depression ever manifested as psychotic features?
JUROR: They have never listed me as psychotic. I have just severe major depression.
BOYD YOUNG: Severe chronic depression?
JUROR: Yes. I take meds every day.
BOYD YOUNG: Is Vistaril one of the medications that you take?
JUROR: I am sorry?
BOYD YOUNG: Vistaril?
JUROR: No.
BOYD YOUNG: Okay. I want to talk to you little bit about, I am going to move forward a little bit and talk to you about your views of the death penalty. Okay. And I know you said you believe in the death penalty?
JUROR: I do.
BOYD YOUNG: Can you tell me a little bit more about that. What is your general philosophy about the death penalty?
JUROR: I don't exactly remember the case when I was young, there was a boy, when I was in school there was a fight that had taken place. And the boy was killed and as I recall I was in middle school. And if I am not mistaken he received the death penalty.
BOYD YOUNG: Do I take it to mean that you thought it was appropriate?
JUROR: I knew both boys. And it was, I was surprised that he got the death penalty but, you know, when they talked about it in the papers and my parents, remembering my parents talking about it, I understand why.
BOYD YOUNG: The Judge talked to you a little bit about what murder is in South Carolina, the intentional killing of malice aforethought and in this case talking about the intentional chose to kill with malice multiple children. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And that is, before a jury is able to decide about punishment they would have found guilty, guilty beyond a reasonable doubt, any evidence would be heard about not knowing the difference between right or wrong, we rejected that, found that he knew right from wrong, chose to kill. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Some people say in that type of case, for me the death penalty is the only appropriate punishment in that type of case. Does that resonate with you?
JUROR: Truly insane and going for that verdict then I believe that everyone here, that Defendant or the Defendants or the other Counsel would prove that. And then I don't believe there would be a death penalty case.
BOYD YOUNG: Right. If you found not guilty by reason of insanity the case would be over. Okay. But and the jury, the jury's job would be over. Okay?
JUROR: Right.
BOYD YOUNG: It is only if somebody were found guilty or guilty but mentally ill that the jury would have the option of doing or deciding penalty. Okay. So insanity is out, the jury has decided beyond a reasonable doubt that the person was insane and they knew what they were doing. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: It sounds like to me, maybe in that case, they knew what they were doing, for you the appropriate punishment would be the death penalty?
JUROR: Yes. If they can prove without a doubt.
BOYD YOUNG: Right. If you had a doubt about whether or not they did it or not--
JUROR: In my mind if I had a doubt, based on things that I heard, no, I couldn't impose the death penalty.
BOYD YOUNG: But if you were convinced, if you were firmly convinced beyond a reasonable doubt that they did it, they knew what they were doing, chose to kill, for you that is the death penalty?
JUROR: Death penalty.
BOYD YOUNG: And for you, in that circumstance, where they chose to do it life in prison without the possibility of parole, that is just not a substantial enough punishment for that type of crime?
JUROR: No, it is not.
BOYD YOUNG: And evidence about somebody having a hard life, a hard childhood, hard background, that is not evidence that is going to convince you that life is appropriate?
JUROR: No, that wouldn't convince me because I was there, there was six children in my family.
BOYD YOUNG: And you have had a hard life?
JUROR: A very hard life. My dad's punishment for us was a braided bullwhip. So, I know what a hard life is.
BOYD YOUNG: That is terrible.
JUROR: And that was right here in South Carolina, well, in Columbia.
BOYD YOUNG: Your views that you share with me, those are your honest answers.
JUROR: Yes.
BOYD YOUNG: I am not going to change your mind about your views. Right?
JUROR: No. I mean I believe my father should have been under a jail.
BOYD YOUNG: We probably agree on that. And your opinions that you share with me and you are going to share it with the State and with the Judge.
JUROR: Right.
BOYD YOUNG: Thank you, I don't have any further questions.
THE COURT: Ms. Mayes.
SUZANNE MAYES: No questions, Your Honor.
THE COURT: If you will step outside I need to go over something with the lawyers and I will have you right back in here.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, we want to excuse Ms. Howell-Stevenson.
RICK HUBBARD: No objection.
THE COURT: I find that appropriate. Tell her she has been excused and are y'all ready for the next one?
BOYD YOUNG: Yes, sir. (Whereupon, Juror 199, Barbara Howell-Stevenson was excused.)
RICK HUBBARD: Yes, sir. I know this Juror was a little different. We are still getting into that, do you think death would be appropriate without information. And we are still going into that. I want to let Your Honor know we are still having that.
THE COURT: Okay, be careful how y'all characterize that question. You know what I am talking about. Bring him in. (Whereupon, Juror 159, Richard Gentle entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Sir, could you please state your name and spell it for us reminding you you are under oath.
JUROR: My name is Richard Gentle. R-I-C-H-A-R-D; G-E-N-T-L-E.
THE COURT: Sir, since I placed you under oath and asked you not to talk about the case or allow anybody to talk to you about the case. Has anybody talked to you about the case?
JUROR: No, sir.
THE COURT: Have you talked to anybody about the case?
JUROR: My wife. I mentioned to her that--
THE COURT: That you were here?
JUROR: Yes.
THE COURT: Okay. Now, there has been publicity in this case. Social media, regular media. The Court, me, published the indictments. I read them to the whole jury panel. Is there any information that you heard or received or understood thus far to right now caused you to form an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: Don't have an opinion whatsoever to what happened?
JUROR: No, sir.
THE COURT: Okay. Now, I asked you, did you bring me your schedule, not bring it to me written down, I am asking you about your schedule. If you are selected as a qualified Juror potentially, have you sitting, listening, next week or it would take two and a half, maybe three weeks, late May, early June is kind of the commitment I am looking for from the jurors without impacting your calendar harshly. Can you tell me if that is the case, do you have something on the agenda that is planned, prepaid, something along those lines?
JUROR: Nothing planned or prepaid until August of this year.
THE COURT: Okay. I think we are safe there. So you could serve if asked to serve?
JUROR: Yes, sir.
THE COURT: Very well. Now, the subject matter of this case involves the allegation of murder, children. The subject matter is going to be graphic, harsh, unpleasant, tough, those are some of the words the lawyers have used to me. I haven't seen all the testimony. I have been told that by the attorneys on both sides. Not easy, unpleasant. Would the subject matter, testimony about that type of graphic evidence, would that make it difficult for you to be fair to both the State and the Defense?
JUROR: No, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: Have you had an opportunity, you heard my instructions on the procedure. A Capital case is two procedures. Phase one, phase two if necessary. Phase one is the State's attempt to prove the murder. Phase two is, if the murder is proven the jury decides the punishment. I gave you a sheet to identify, there are three general categories as jurors in cases such as Capital cases. Can you find yourself, not knowing any more than you know, big picture, no facts other than murder, aggravating circumstances to consider, can you find yourself as one of those jurors?
JUROR: Yes, sir. Type three.
THE COURT: You are type three?
JUROR: Yes, sir.
THE COURT: Does that mean you have got your mind not made up but want to hear everything before you make a decision?
JUROR: I would be openminded.
THE COURT: Now, in the sentencing side there is only two choices, the death penalty is not automatic, the jury has got to decide between the two. Do you understand?
JUROR: Yes, sir.
THE COURT: Did you study the potential witness list?
JUROR: I looked it over, yes sir.
THE COURT: Did you recognize any names on there?
JUROR: No, sir.
THE COURT: Do you know of those witnesses?
JUROR: No, sir.
THE COURT: You could be fair and impartial since you don't have a relation with any of them?
JUROR: Yes, sir.
THE COURT: All right. I am going to discuss both phases in a little more detail. Phase one which is the guilt or innocence phase. The State has to prove the murder, killing of another, malice, ill-will, the State has got to prove that beyond a reasonable doubt, all the elements. During a murder trial the Defense, if they claim a defense allowed by the statute, they could ask the jury, Judge, we have presented testimony, we would like for you to instruct the jury on that particular defense. I am going to read all of the defenses, I don't think all of them are appropriate or I don't think all of them are inappropriate. Perhaps the jury will be instructed on one or more of these. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are statutory defenses. Can you listen to the instructions of the Court if testimony were to support one of more of those defenses, give meaningful consideration to those defenses understanding the State has the burden of proving murder beyond a reasonable doubt, give meaningful consideration to the State's testimony and evidence and my instruction on the law on how to evaluate all of that and make findings. Can you be fair and impartial?
JUROR: Yes, sir.
THE COURT: Under those circumstances?
JUROR: Yes, sir.
THE COURT: Now, I told you already and I will tell you again, Mr. Jones has, he has admitted a defense of not guilty by reason of insanity. By that assertion he brings into play four potential verdicts in the guilt or innocence. Potential verdict could be guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty whatsoever. Can you give meaningful consideration, considering my instructions on the law, facts and circumstances, evidence the jury hears, give meaningful consideration to each and every one of those potential verdict forms?
JUROR: Yes, sir.
THE COURT: If a verdict of not guilty, not guilty by reason of insanity is found the case ends. If the State proves the murder beyond a reasonable doubt we will proceed to phase two. At that time the State has got to prove a statutory aggravating factor. I am going to name off five. Murder of a policeman, rape of murder, kidnapping, murder of a child, multiple murders. Those are statutory aggravating factors. If the State proves one of those aggravating factors beyond a reasonable doubt the jury can then consider a sentence of life without parole or death. The jury also takes into consideration mitigating evidence and factors. I am going to give you a list of those also that the jury can consider if the facts and testimony support it. 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 capacity for the Defendant, the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The Defendant acted under duress or the domination of another. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim 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, there are other non-statutory reasons to not give the death penalty. How he was raised, maybe his physical condition, broken home, troubled childhood. Any factor the jury hears testimony about, they can consider mitigating factors in deciding a life without parole sentence. Can you give meaningful consideration to the State's burden of proving the aggravating circumstance, the aggravating factor and meaningful consideration to the mitigating factors presented in the case, be fair and impartial and reach a fair verdict considering my instructions and the testimony you hear. Can you do that?
JUROR: Yes, sir.
THE COURT: Now, you understand that in the sentencing phase, you get there, the guilt is proven, the sentencing phase is two choices for the jury, death or life. Nothing in between, no other options. Death is not automatic. Do you understand?
JUROR: Yes, sir.
THE COURT: If a unanimous verdict of death is found that sentence will be carried out. If a sentence of life without the possibility of parole is unanimously decided, that sentence will be carried out. Can you be a fair and impartial Juror in those circumstances?
JUROR: Yes, sir.
THE COURT: Now, you have any religious, moral or personal belief that would prevent you from finding a punishment of the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal beliefs which would prevent you from finding a sentence of life without the possibility of parole?
JUROR: No, sir.
THE COURT: Those are my questions.
THE COURT: Mr. Secor.
EXAMINATION By Mr. Secor:
CASEY SECOR: Good afternoon, Mr. Gentle.
JUROR: Hey.
CASEY SECOR: How are you doing?
JUROR: Good.
CASEY SECOR: Good. The Judge was just talking about your ability to determine the law and be fair and impartial. I want to talk to you just about your personal feelings and I don't want you to feel incumbent by trying to be fair and impartial or follow the law, I just want to know how you feel. Is that all right?
JUROR: Sure.
CASEY SECOR: Do you remember hearing anything about this case in the past when it originally happened back in 2014?
JUROR: No.
CASEY SECOR: You don't. Okay. Any media incurred, have you heard anything about the case I guess?
JUROR: It was the day before when we reported over to the other Court House that it came up on the news that there was the jury selection was going to start with this. And then my wife mentioned it, she said something like, maybe that is what you are doing and I said, I don't think so.
CASEY SECOR: You never heard anything?
JUROR: That was the only thing I had heard prior to this.
CASEY SECOR: I understand. And the Judge talked to you about the verdict of not guilty by reason of insanity. And you understand that when a person is not guilty by reason of insanity they are saying I did it, I did the killing. But because of my mental disease or defect I was unable to appreciate the difference between legal right and wrong, moral right and wrong. Do you understand that?
JUROR: Yes, sir.
CASEY SECOR: And some people, just on a personal level, when they hear that they think, they say, give me a break, that sounds like an excuse or a copout. Does that, do you feel that way?
JUROR: No, I don't.
CASEY SECOR: It seems to you like a real, legitimate thing that you would be able to consider?
JUROR: Yes, sir.
CASEY SECOR: Okay. I appreciate that. I want to talk to you about your personal feelings on punishment for a guilty murder. Okay. And I am going to ask you, I am going to ask you a question but I want to make sure that you understand that. In a case of a guilty murderer, aggravated guilty murder in South Carolina the jury always has a choice between life or death. So I want you to just have that in the back of your mind that that is always an option. But as the Judge said to you, murder in South Carolina is the malicious killing of a person and it was done with evil, wickedness and hatred. Okay. And in order to find somebody guilty of murder you, as a Juror, would have to find that they knew right from wrong, meaning that they were not insane. And that there was also no excuse, justification or defense. It wasn't self-defense, it was defense of others, it wasn't heat of passion, it wasn't a mistake, anything like that. And that the person maliciously killed and in this case multiple children. Okay. And so for you, what I would really like to know on a personal level, what are your feelings about how a guilty murderer like that should be punished?
JUROR: I don't really have any feelings about it to tell you the truth because I don't know how that person should be punished. I don't know what the laws are around that, what they are, what that person is subject to. I don't know. So I guess what I was saying to the Judge and to you was, with guidance or whatever the law is I could be openminded about what is presented.
CASEY SECOR: And I appreciate that and I don't doubt that for a second. I guess, maybe I didn't say this well. When you, if you found that to be true and there was no question in your mind that person had committed murder of multiple children, personally do you start off thinking that death is appropriate--
SUZANNE MAYES: Objection, Your Honor, asked and answered.
THE COURT: I don't believe he has asked that question so overruled on that one.
CASEY SECOR: Do you start off thinking that one is more appropriate in your own mind, personally?
JUROR: No, not really.
CASEY SECOR: I appreciate that. Do you feel like, again, on a personal level, that a person's whole life, everything that they have been through, where they come from, is that relevant to how they are punished once they are found to be guilty of murder?
JUROR: Well it depends on what that whole life is, what you are talking about.
CASEY SECOR: Yes, sir. Can you tell me the types of things you think would be, are relevant about a person's background or life to how they are punished?
JUROR: It is various and numerous, you know, with educational. I mean, where you come from, that is kind of hard to take all of those different factors that could be applicable and just barrel it down to just one little thing. But, yes, there are things that are in your background that I am assuming that could be relevant. Now, relevant to the punishment, you are saying is given out because of their background, I don't know.
CASEY SECOR: And the punishment would mean because they are a guilty murderer, right. So you would be asking to take into consideration things that didn't have anything to do with the murder but might somebody, like the person grew up in poverty, the person had a drug problem, the person had an abusive parent. Are those types of things that you think are relevant to how a person is punished even though they decided and chose to commit a murder?
JUROR: I don't think that is relevant to the punishment, no.
CASEY SECOR: All right. I would like to run through a few principles that govern how jurors to come to their decision in the punishment phase of a Capital case. All right. As the Judge told you, a Juror on a Capital case, they go through the first trial, the guilt or innocence trial. If they find the person not guilty or not guilty by reason of insanity of course the trial ends and you understand that, right?
JUROR: Yes.
CASEY SECOR: And it is only if the person is found guilty that you then and the other eleven jurors proceed to the penalty phase. At the penalty phase you are asked to make the determination between life or death. And the State presents to you aggravating evidence which are things that they think weigh in favor of a death sentence and they have to be proven beyond a reasonable doubt, unanimously to all jurors. You can accept that, right?
JUROR: Yes.
CASEY SECOR: And mitigating evidence or mitigating factors are any reason to vote for a life sentence. And they can involve the character and background of the Defendant. They don't have to have anything to do with the crime. Does that sound fair to you?
JUROR: Yes.
CASEY SECOR: And jurors are impowered to find mitigating circumstances and vote for life based on mitigating circumstance that no other Juror agrees with. And just as an example, one Juror might say he had a good relationship with his father. To me that is mitigating, I am going to give that the value of life and vote for life. Another Juror will say, I didn't see that, but I think he had some mental health problems, that is mitigating to me, I am going to vote for life based on that. They don't have to agree. They both have found mitigation for themselves and they are going to vote for life for those reasons. And you would respect a jurors right to do that?
JUROR: Yes.
CASEY SECOR: And the law also says a Juror can vote for life for no reason. I have heard everything, I have considered the aggravation, I have considered the mitigation, I can't put into words. I am just saying for me, life is the right sentence in this case and I am voting life. I can't put it into words. And you could accept, you would respect a juror's right to say that even if they couldn't put it into words?
JUROR: Yes.
CASEY SECOR: Because the law doesn't require them to justify it. And finally, the law also empowers a Juror to give life for mercy. Meaning again, they can say I have considered the aggravation, maybe I haven't even found any mitigation but I am just going to vote for life for mercy because I feel that is right for me in this case. And you could respect a juror's right to do that?
JUROR: Yes.
CASEY SECOR: The law says that the ultimate decision on which punishment a Juror decides is your individual moral judgment. And it is something as profound and personal as something like the faith you choose for yourself enforcement. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: And, of course, I am sure you respect people's individual moral judgment that you might disagree with because they make them for themselves?
JUROR: Yes.
CASEY SECOR: And you would demand respect for your own individual moral judgment even if people disagree with you because you decided it for yourself?
JUROR: Correct.
CASEY SECOR: And once a Juror arrives at that individual moral judgment the law does not allow them to be bullied or coerced or pressured out of that. Does that make sense to you?
JUROR: Yes.
CASEY SECOR: Okay. And if you saw a person, said that they had arrived at their individual moral judgment was being bullied you could step in and say, that is not right, they are entitled to their opinion.
JUROR: Correct.
CASEY SECOR: Even if you disagreed with the individual moral judgment they had made, you would stop that kind of bullying?
JUROR: Yes.
CASEY SECOR: Okay. Thank you, Mr. Gentle.
JUROR: Okay.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Mr. Gentle.
JUROR: Hello.
SUZANNE MAYES: My name is Suzanne Mayes and I am a Prosecuting Attorney, we represent the State in the prosecution of this case. I just wanted to follow-up on a couple of things that Defense Counsel was just asking you about.
JUROR: Okay.
SUZANNE MAYES: You described yourself as a type three Juror?
JUROR: Yes.
SUZANNE MAYES: And I believe your previous testimony was, that was because you want to hear all of the evidence. Does that include the evidence that goes towards deciding punishment?
JUROR: Whatever evidence is presented.
SUZANNE MAYES: As the Judge indicated, there would be potentially two phases of this trial. The first phase would be the guilt phase and I heard your responses on that and that you would consider all possible verdicts, even verdicts that may relate to the Defendant's mental state.
JUROR: Yes, ma'am.
SUZANNE MAYES: And then potentially if there is a second phase of the trial, that only deals with punishment. And so there would be two options there, life without parole and the death penalty. And your indications to Your Honor is that you could consider both?
JUROR: Yes, ma'am.
SUZANNE MAYES: Now, in considering both, there would be potential, what we call mitigating factors that would be presented by the Defense and the Judge gave you some examples of those earlier. I just kind of want to go over that again in a little more detail. Because in addition to those facts that the Judge gave such as whether or not he may have been under the influence of a mental emotional disturbance, whether or not he is under the age of 18, whether or not he had mental retardation. In addition to all of those factors the law also allows for mitigating factors to be offered into evidence that can be anything that Defense Counsel chooses to show. So it could be any random thing about his past or his history that they believe somehow may relate to a decision on punishment. So with that in mind can you consider all evidence in this case in ultimately reaching a decision?
JUROR: Yes, ma'am.
SUZANNE MAYES: Including a decision on punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: And so I know the Defense was asking you earlier, what about this or what about that. And I don't want to pick one or two things and just ask you about those one or two things. I am going to ask you can you consider everything that they show that relates to mitigating, mitigating factors?
JUROR: Yes, ma'am.
SUZANNE MAYES: Mitigation evidence?
JUROR: Yes.
SUZANNE MAYES: And then can you follow the instructions of Your Honor?
JUROR: Yes, ma'am.
SUZANNE MAYES: And those instructions would be that you shall consider all evidence and mitigation?
JUROR: Yes.
SUZANNE MAYES: You could do that?
JUROR: Yes.
SUZANNE MAYES: Just a couple of things. We are now talking about that second phase of the trial where we are only deciding punishment, life without parole or the death penalty. If after considering all of the aggravating factors offered by the State and each of the mitigating factors offered by the Defense, you found that the death penalty was appropriate could you render a sentence of death?
JUROR: Yes, ma'am.
SUZANNE MAYES: You do not have an opposition to the death penalty?
JUROR: Depends on the evidence.
SUZANNE MAYES: And so depending on the evidence, if that were the verdict reached by yourself as well as the other jurors unanimously could you sign your name to a form indicating that a death sentence was your verdict?
JUROR: Yes, after hearing both sides and the mitigating factors, like you say. If that was the decision that I came to, yes, I could sign my name to it.
SUZANNE MAYES: Okay. Have you thought much about the death penalty before you got that jury notice and showed up two weeks ago?
JUROR: Not really, I haven't thought about it sense then either, to tell you the truth.
SUZANNE MAYES: Okay.
JUROR: That is something that I don't dwell on too much.
SUZANNE MAYES: Okay. You don't have any disagreement with the law in South Carolina allowing for the death penalty?
JUROR: No, ma'am.
SUZANNE MAYES: Then I want to ask you, just as we spoke about the death penalty. If after hearing all of the mitigating factors offered by the Defense and the aggravating factors offered by the State and you determined that the appropriate sentence was life without parole, is that a verdict that you could reach considering all of the evidence?
JUROR: Yes, ma'am.
SUZANNE MAYES: Thank you, nothing further.
THE COURT: Mr. Secor, anything further?
CASEY SECOR: Briefly.
THE COURT: Very briefly.
EXAMINATION By Mr. Secor:
CASEY SECOR: Mr. Gentle, I want to go back to one thing.
JUROR: Sure.
CASEY SECOR: And I want to make sure you understand that no one is trying to give you a hard time or confuse you.
JUROR: Okay.
CASEY SECOR: When we were talking about, things about a person's character or background. And correct me if I am wrong, but I think I asked you if those things to you on a personal level, things about a person's life, if those matter to how they are punished for an intentional malicious murder. And my recollection you said for you those things don't matter, the punishment. Now, when you were talking to Ms. Mayes I felt like I got a little bit different picture but I want you to clear it up for me. I don't want to try to suggest. I know you would follow the instructions. I know everybody believes they can do that.
JUROR: Right, right.
CASEY SECOR: But when it comes to you.
JUROR: Well, people's background, I mean I have dealt with a lot of people over my life, I spent 24 years in the Army and people, their backgrounds that they have when they come into the military is diverse and different all across the spectrum. Now, the punishment and the way people were treated in the military while I was there, during my time period, your background doesn't matter when it comes down to, whether or not to the punishment. It was kind of standard across the board for everybody. You do this this is what you can be expecting. If you mean, your punishment should be different based off of your background or where you come from versus everybody else, no, I don't believe so. It is all standardized punishment I guess is what I am kind of familiar with and comfortable with for quite a few years. So long as it is applied across the board fairly to everybody.
CASEY SECOR: And you said that is 24 years of experience in the military is where you got that sort of ingrained--
JUROR: Part of that brain washing comes from.
CASEY SECOR: But that is also just part of who you are?
JUROR: Yes, sure.
CASEY SECOR: Thank you, sir.
JUROR: All right.
THE COURT: Ms. Mayes?
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: If part of the Judge's instructions is to consider all factors presented and all evidence and that included background would you do that?
JUROR: Yes, ma'am.
SUZANNE MAYES: In regards to punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: Nothing further.
THE COURT: Okay. Step in the back and I will put something on the record. Let me talk to the lawyers and we will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Secor, let me hear from you.
CASEY SECOR: I would argue Mr. Gentle, despite his seeming very genuine, responses about wanting to follow the law, following the Judge's instruction. There is a clear delineation between him as a Juror and him as an individual. He said that based on his experience, partially in the military that a person's life history and background is not, does not matter to him for the purpose of how they are punished for a crime that they are convicted of or I guess, plead guilty to. And he thinks that punishment should be meated out fairly without regard to a person's past and history. And my argument would be that based on that he is mitigation impaired.
THE COURT: Okay. Didn't he answer questions from you about respecting other people's belief and assigning reasons why they would have an individual moral judgment?
CASEY SECOR: Absolutely.
THE COURT: Okay, I thought so. Let me hear from Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor. His explanation there at the end perfectly explained where he is coming from. He is relying on his experience that began in the military for 24 years and he is answering their question, very pointed question and a very premature question. Again, we submit it is staking but he is answering that in relation to his military background. However he cured that by repeatedly stating he would consider all evidence because he wants to consider that evidence. And in addition to that, he would follow Your Honor's instructions to give weight to all evidence presented. So he has been asked a very pointed, asked him an unfair question. He gives an answer and then they want to argue that he is disqualified because of that answer. And I don't know how a Juror can possibly survive this setup under those circumstances.
THE COURT: Any more, Mr. Secor?
CASEY SECOR: I guess I am not even sure what question it is that the State is complaining of.
SUZANNE MAYES: We object, Your Honor, to picking and choosing certain factors and then saying, well, do you think that should be considered in regards to punishment. These are non-statutory mitigating factors. He is saying that he will consider all factors. But to just pick one or two and then tie it in in the context of this case where they have already said it is a guilty murderer, he has done this and he has done that, what about his background. As the Solicitor stated earlier, the fact that when he was five he liked ponies. No, I mean the way it is presented in the form of a question is very confusing to any potential Juror. But in the end he answered it accordingly. He would follow the Court's instruction and consider all evidence.
CASEY SECOR: Substance abuse definitely falls into one of the statutory mitigators. I mean, I didn't say anything about a pony or anything nearly as absurd as that.
THE COURT: Well, you know, here is the thing for the Court. Substance abuse is not his background, that is a circumstance that could be considered mitigating. I don't, didn't understand, the question did not point to name everything is his background that you wouldn't consider, last history you would consider. I think he is qualified. I mean I think he went over all the points of I will consider everything. I agree with you, he said exactly, he answered the question exactly like you said, would you consider personal background. He said, I wouldn't know, I am in the military, everybody is equal, everybody knows what to expect, to take orders and follow them. That is a military background. For him he doesn't consider the background of a military. The Court's instructions, he said I will accept the Court's instructions. And he never wavered from being a three, all the way through, however y'all characterize it. He wanted to hear everything first. I find him qualified.
CASEY SECOR: Yes, sir. May I place an objection on the record?
THE COURT: You may.
CASEY SECOR: We would just cite for Mr. Gentle's mitigation impairment, the State versus Bell, Bryant v. Sterling, United States v. Folks, Morgan v Illinois, Eddings v. Oklahoma and Abdul Kabir versus Quarterman. The principle that a Juror is disqualified for cause if mitigation is irrelevant to them or they cannot properly consider mitigation. Thank you, sir.
THE COURT: Okay. Your objection is noted for the record. Bring him out here.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Gentle, based upon your answer to the questionnaire and my questions and instructions of the Court and the questions from both attorneys the Court finds you qualified. That means you are going to be on a list of qualified jurors that will be maintained here. But you will follow the instructions on the Clerk of Courts website where you found to come back today. Look on that website, qualified jurors are to check back tomorrow might, check back, finally it will say please report to the Lexington Court House on a date and time. It will probably be early next week. Until that time you are under oath to not talk about the case, don't let anybody discuss the case with you, do not do any independent research. What you need to decide this case you will find in this courtroom. The parties will present it to you, my instructions on the law. You and all the other jurors, if you are so selected, will consider all of that testimony from what you hear in the courtroom, not what you hear outside.
JUROR: Okay.
THE COURT: Thank you so much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, let's bring in 372. (Whereupon, Juror 372, Tonya Sasser entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Tell me your name and spell it, first and last.
JUROR: Tonya Sasser, T-O-N-Y-A; S-A-S-S-E-R.
THE COURT: Ms. Sasser, my name is Eugene Griffith, I introduced myself to you several times. You took an oath Monday, I am asking you the same questions I have asked everybody else.
JUROR: Okay.
THE COURT: Have you talked about the case with anybody whatsoever?
JUROR: No.
THE COURT: Has anybody tried to talk to you about the case?
JUROR: No.
THE COURT: There has been publicity before you took the oath. A lot of publicity way back, recently, this week. I gave you instructions of the allegations on the indictments of the allegations of five counts of murder. Any information which you have received, have you formed an opinion yourself as to what happened in this case?
JUROR: Yes, sir.
THE COURT: And what is that opinion?
JUROR: That he is guilty.
THE COURT: Okay. Now, I gave you three types of jurors. Do you find yourself on one of those types?
JUROR: One.
THE COURT: Type one. You are not going, you are pretty hard on one?
JUROR: In this case.
THE COURT: In this case?
JUROR: Yes, sir.
THE COURT: So the death of the children have really impacted you?
JUROR: Yes, sir. One of my nieces went to school with one of the children.
THE COURT: That is all I need to hear. That would create a huge problem.
THE COURT: 372 is excused. Thank you for coming in.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We are on Juror 62. (Whereupon, Juror 62, Todd Buehrig entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Juror 62, please state your name and spell it, first and last.
JUROR: Todd Buehrig, B-U-E-H-R-I-G.
THE COURT: Mr. Buehrig, I placed you under oath Monday. I am asking you the same questions I asked every Juror, the same order. Took an oath to not talk about the case. Have you communicated with anybody about this case since Monday?
JUROR: No.
THE COURT: Has anybody tried to communicate with you other than telling your boss or your wife or spouse, whomever, that you had to come to court?
JUROR: No.
THE COURT: Now, there has been publicity in this case, social media, public media, all sorts of publicity before Monday and since also. I read the indictments to the entire panel and provided information and the allegations the State has made against Mr. Jones. He has plead not guilty and is presumed innocent. Have you formed an opinion as a result of the information that is out there that has come to you from any source?
JUROR: No, I don't know much about the case.
THE COURT: Okay. Now, your schedule, work, personal, otherwise, starting next week for about three weeks. What do you have if you were selected as a Juror that would impact, I understand missing work, that is going to be an impact. But preplanned, prepaid, impact on your schedule.
JUROR: No, I am an Executive Director for a non-profit so obviously my schedule is packed. But beyond work related duties I don't have any travel or any prepaid items that I could use as an excuse to get out.
THE COURT: Subject to the normal inconvenience jurors who have jobs and families, the inconvenience factor, other than that, you don't have any particular scheduled things that you would have to reroute.
JUROR: No, I do not.
THE COURT: All right. Now, the subject matter of this case involves allegations of the death of five children. That subject matter has been described to me by the lawyers, I have not seen all of the evidence. I have seen a little bit of it, preliminary hearings, not much. The subject matter is going to be difficult, it is going to be harsh, it is going to be graphic, very difficult is described to me by the lawyers. That type of subject matter regarding the children and being difficult, would that affect your ability, knowing that is the subject matter, to be fair and impartial to both sides, both the State and to Mr. Jones?
JUROR: I do believe not, no.
THE COURT: You could listen to testimony like that and still consider it, fair to the State and fair to Mr. Jones?
JUROR: I believe so, yes.
THE COURT: Now, I gave you some preliminary instructions on the Capital murder of a trial, phase one is guilt or innocence, phase two is the punishment phase. If the State meets the proof of stage one, hypothetically under my typical types of jurors. Then the jury decides the punishment. Jurors are classified as three typical groups. Not giving you any facts other than the accusations of the murders. Presume those have been proven beyond a reasonable doubt and guilt has been found and now the State is going to prove the aggravating factor and you get to hear mitigating facts. Can you identify yourself as one of those three types of potential jurors.
JUROR: I believe the option is three. I really don't have an opinion either way on the--
THE COURT: I have the paper right here.
JUROR: I believe it is option three. I believe I would be fairly balanced in looking at the evidence, I am not passionate one way or the other when it comes to the Capital punishment.
THE COURT: I am going to go back, did you look at the jury list?
JUROR: I did.
THE COURT: I am sorry, the witness list.
JUROR: I did.
THE COURT: The witness list, potential witnesses. Do you know any of them?
JUROR: I don't, I am new to the County so I don't know many in the area.
THE COURT: How long have you been here?
JUROR: We moved her about a year ago.
THE COURT: Welcome to South Carolina.
JUROR: No, I was in Richland County, just down the road. We built a house over here.
THE COURT: Okay. Welcome to Lexington. I am from Newberry County so I am not far, just near, we all touch the lake. I will go back to the guilt or innocence portion, phase one. We will talk about that. In that case the State has got to meet the burden of proving the murder beyond a reasonable doubt. They have got to do that beyond a reasonable doubt and they have got to do that by calling witnesses and presenting evidence. During that presentation the Defendant is allowed to have defenses which are shown by the evidence or which are claimed by them upfront to be considered by the jury and instructed by the Court if the evidence supports it. Okay?
JUROR: Okay.
THE COURT: Potential statutory defenses, I am going to read all of them to you, not all of them are going to be applicable. I am going to read them all and tell you that if the evidence supported it I would instruct you on that aspect of the defense. Okay.
JUROR: Okay.
THE COURT: 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 defenses available under our statute. If the testimony were to support the jury can consider those I would instruct you on them. Can you give meaningful consideration to the guilt or innocence phase, meaning understand my instructions will include the State has the burden of proving each and every element of the murder beyond a reasonable doubt. Any defenses presented, whatever they are, the aspect of a defense, the jury's consider instructions regarding those defenses, consider the evidence. Can you be a fair and impartial Juror given those circumstances and parameters to all of my instructions?
JUROR: Yes.
THE COURT: Mr. Jones has entered a plea of not guilty by reason of insanity and by that plea that is brought into play potential verdict forms of four different things. Potential verdicts that could be reached by the jury, guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Given those are four potential verdict forms can you give meaningful consideration to all the testimony and evidence presented during the guilt or innocence phase and meaningful consider each and every one of those potential verdict forms, consider my instructions and the testimony and evidence?
JUROR: Yes.
THE COURT: Can you be fair and impartial in doing so?
JUROR: Yes.
THE COURT: If the not guilty or not guilty by reason of insanity verdict is reached the case ends, it stops there. If the State meets its burden of proving murder the case goes to phase two. Phase two is when the jury considers, can you give meaningful consideration to those particular defenses, any of them if they are appropriate to be instructed considering the testimony and evidence in the trial. Can you do that?
JUROR: Yes.
THE COURT: Also, if not guilty verdict or not guilty by reason of insanity verdict is reached the case ends. It stops there. If the State meets it burden of proving murder the case goes to phase two. Phase two when the jury considers, the State has to prove an aggravating factor. I am going to name off several aggravating factors and tell you the State has got to prove at least one. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple victims in murders. Those are statutory aggravating factors. The State must prove one of those beyond a reasonable doubt. Mitigating factors, there are some in the statute and there are some that are not classified under the statute. The jury considers mitigating factors, here are the statutory ones. 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 of the crime. The Defendant had mental retardation at the time of the crime. And any other mitigating factors that you find such as the Defendant's childhood history, broken home if that is the case, physical condition can be for consideration. Mitigating factors is any reason to cause you to vote for life without parole. Now, in the sentencing portion the State has got to prove the aggravating factor beyond a reasonable doubt. Mitigating factors are just considered by the jury if they want to consider them because they will be presented. No burden of proving those. Can you give meaningful consideration to all that testimony, whether it be aggravating testimony or mitigating factors by the law as instructed by the Court and be fair and impartial to both the State and the Defense?
JUROR: Yes.
THE COURT: Now, do you understand the verdict in the sentencing phase is not predetermined, the death penalty is not automatic. Do you understand?
JUROR: Yes.
THE COURT: Death or life are the two choices. If the jury finds a verdict unanimously of the death penalty that penalty is carried out. If the jury unanimously finds for life without parole that penalty is carried out. Those are the two options for jury's. Can you meaningful consider my instructions on that, all the testimony, aggravating and mitigating and be fair and impartial to both the State and the Defense?
JUROR: Yes.
THE COURT: Do you have any religious, personal, moral belief which would prevent you from entering a verdict of the punishment of life without parole?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief that would prevent you from finding a punishment of the death penalty?
JUROR: No.
THE COURT: Mr. Madsen.
RICK HUBBARD: Can we approach, Your Honor?
THE COURT: Yes, sir. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Mr. Buehrig, I have been apprized by the State that you are a participant in or active in the National Safety Counsel. What exactly is that?
JUROR: The National Safety Counsel is a National Non-Profit but we are the Southeastern Chapter in Georgia and South Carolina. We work with defensive driving in the State, we place safety in emergency care. Our primary area is defensive driving. Our largest program is called Alive at Twenty-five. It is a distracted driving program in high schools.
THE COURT: I am familiar with that.
JUROR: In South Carolina. We work with 140 high schools to mandate that their students take the, a four-hour course prior to being able to park on campus. So that is one of our biggest most well known programs.
THE COURT: I am familiar with that. The fact that you are involved in National Safety Council, would that impact your ability to be fair and impartial to both the Defense, particularly the Defense but also the State?
JUROR: No, but I do want to be transparent. The Solicitor is the newest addition to our Board of Directors. We have not met, he is a brand new addition. I think we corresponded by email once or twice but I do want to be transparent about that.
THE COURT: And he mentioned very, very similar facts to that. You reached out via email and invited him and told him he was nominated by someone. Now, the fact that he is involved on the Board for your non-profit, is that going to affect your ability to perform your duties as a non-profit organization or perform your duties here as a Juror?
JUROR: No.
THE COURT: You don't think so?
JUROR: No.
THE COURT: Can you be fair and impartial knowing that, you may see him again?
JUROR: See the Solicitor?
THE COURT: Yes. Can you do that?
JUROR: Yes.
THE COURT: Okay, Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Mr. Buehrig.
JUROR: Buehrig.
ROBERT MADSEN: Mr. Buehrig, the Judge kind of went over some stuff with you asking you if you can kind of be fair and impartial. My name is Rob Madsen and I represent, one of the lawyers that represents Tim. What I want to talk to you about is just kind of your feelings, your thoughts, kind of your personal opinions. Is that okay?
JUROR: Sure.
ROBERT MADSEN: Did you know any of the other jurors when you came in, I guess a little over a week ago?
JUROR: I did not.
ROBERT MADSEN: And let me just kind of ask you, what are your general feelings on the death penalty?
JUROR: I am not really partial one way or the other. I guess I feel that there are certain crimes that warrant it and perhaps it is a deterrent to some crimes. At the same time I also think it is not always equitably, I think sometimes human error comes into our problem with the death penalty as well. So I guess I am not passionate one way or the other on the issue. I can see both sides.
ROBERT MADSEN: When you said, deterrent to certain crimes. Can you explain that to me?
JUROR: I guess in the idea that, like a premeditate crime. If you, the idea the death penalty is there, perhaps that is something that would stop that from happening or stop that individual performing that crime.
ROBERT MADSEN: So, I am want to ask you. If you were the Governor of South Carolina and they put a Bill on your desk and one of them says, we will have the death penalty, the other one says we won't have the death penalty. Which one would you sign?
JUROR: It is either, or?
ROBERT MADSEN: Either, or.
JUROR: I am not sure I would sign either one of them. Mandating that there wasn't an option, I am sorry, you have to--
ROBERT MADSEN: Either you have the death penalty or not have the death penalty and you were the Governor and the decision was up to you?
JUROR: I am not sure how to answer that question.
ROBERT MADSEN: Okay. Fair enough. Let me change the subject a little bit. As you heard, the Judge told you that there is a number of verdicts. Not guilty, guilty, guilty but mentally ill and not guilty by reason of insanity. And you heard that Tim has plead not guilty by reason of insanity which means that because of a mental disease or defect, someone can't appreciate the legal or moral wrongfulness of their actions. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And so basically what that means is they are saying, hey, I did the action, I did the killings but because of that mental or, because of that mental disease or defect they don't understand the legal or moral wrongfulness of their actions. Some people would say, hey, you know what, for me, that is kind of a copout, that is an excuse and I can't consider that. My question is, is that you?
JUROR: No. I mean I would have to understand a little more about the issue involved and the signs behind it. My father was a psychologist and so I think, he taught me to sort of believe about, it is not always a black or white situation. So I think there is room for that as a defense, I think I would need quite a bit of evidence to kind of, of push me in that direction but I am open to it.
ROBERT MADSEN: Okay. So let me ask you then. Let me kind of put you on a jury and what I want to talk to you about is your feelings on punishment for a guilty murderer of multiple children. So you understand we are talking about someone who, if you heard any evidence of any kind of mental defense, that person knows the different between right and wrong. That person maliciously, well there is no excuse, there is on justification. We know that this person is guilty, guilty. I mean we know that this person did it. And my question to you, that person who chose to maliciously kill those multiple children. What do you think as the death penalty being the appropriate punishment for that guilty, guilty murderer.
JUROR: So we have removed all options, no doubt.
ROBERT MADSEN: We know it is that person, we know that they are the one that did it, we know that they knew right from wrong and we know it is not a self-defense or an accident or anything like that. We know we have got the right person and they did it.
JUROR: And your question is, is the death penalty or--
ROBERT MADSEN: My question is, what do you think of the death penalty as being the appropriate punishment for that guilty murderer of multiple children?
JUROR: I think it could be an option in that scenario if we have removed all doubt, if we removed all the possibilities from that.
ROBERT MADSEN: And are there things that you would want to know before you made that decision?
JUROR: I mean the scenario you just showed me is, convincing that we have eliminated all doubt. But I mean, I think there is a lot of steps before I would get to that point to issue for that opinion. As for specifics about what I would know, I am not really sure.
SHAWN GRAHAM: Objection, Your Honor, I object to the question and ask Your Honor to instruct. He is asking one specific thing that he might or might not care about.
THE COURT: Okay. Go back and recharacterize your question. I will sustain the objection. Rephrase it and you kind of know where you are going anyway.
ROBERT MADSEN: I can just kind of move on.
THE COURT: All right. That will be fine too.
ROBERT MADSEN: So the Judge kind of told you about mitigation and you heard there are certain things statutory type of mitigation. But you understand that the law never requires a guilty murderer to be put to death. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: And so what that basically means is that the law is always satisfied with a life sentence in this case, in any case or even the worst case you could imagine. You understand that?
JUROR: Correct.
ROBERT MADSEN: Mitigation is basically any reason to give someone the life penalty. You understand that?
JUROR: Yes.
ROBERT MADSEN: And while the Judge told you about statutory mitigation, there is this other mitigation and it can be different for each individual Juror. So in other words, say Juror number one here says, you know what, I saw a spark of humanity, I saw the relationship with his dad and for me that is reason that I want to vote for life. You understand that?
JUROR: Correct.
ROBERT MADSEN: And Juror number two could say, you know what, I didn't see that but I saw some mental illness there. And for me, for me that mental illness is why I want to vote for life. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And those two jurors could have, you know, different opinions, they don't have to have the same reason. You understand that?
JUROR: So you are saying basically, my personal opinions or beliefs or how I can refer my own life to the situation of the Defendant.
ROBERT MADSEN: Well, each Juror.
JUROR: Okay.
ROBERT MADSEN: Because mitigation doesn't have any type of burden of proof. The State has got to prove aggravating circumstances to you and the jury has got to find those unanimously and beyond a reasonable doubt. Mitigation does have any type of burden.
JUROR: Okay.
ROBERT MADSEN: And then there could be a third Juror that says, you know what, I didn't see what Juror number one saw, I didn't see what Juror number two saw, in fact I can't even really tell you why I want to vote for life. I just, that is, I just believe in that. Could you respect that decision?
JUROR: Yes. Not having been in this position before, to make that decision, but I guess I can see how a personal opinion and intuition can play to that.
ROBERT MADSEN: And you understand that after consideration of mitigation that the penalty is actually based on each juror's individual moral judgment. Do you understand that?
JUROR: Okay.
ROBERT MADSEN: Have you ever heard that term before?
JUROR: Moral judgment?
ROBERT MADSEN: Well, yes, an individual moral judgment?
JUROR: Yes.
ROBERT MADSEN: And the way it is best been described to me is, whatever your faith is. You have made an individual moral judgment about what your faith is. And you might, someone over here that has made a different individual moral judgment about their faith. And you would expect them to respect your individual moral judgment about your faith, wouldn't you?
JUROR: Correct.
ROBERT MADSEN: And you would give them respect about what they believe, correct?
JUROR: Correct.
ROBERT MADSEN: And so the law says that each one of those jurors back there have an individual moral judgment about what they believe the appropriate sentence is. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: So you understand that once a Juror, the jurors, obviously when they are back there in the jury room, they should discuss their thoughts and opinions with other jurors, kind of have a regular civil discourse. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: But once someone makes their individual moral judgment it is not appropriate for them to be bullied out of that decision or browbeat. You agree with that, don't you?
JUROR: I do, yes.
ROBERT MADSEN: And certainly once someone makes their individual moral judgment, the law says, hey, you can't just be bullied or browbeaten or give it up just so you can go along with the majority. You understand that, right?
JUROR: Yes.
ROBERT MADSEN: And are you someone that if you are back there and you see the bullying or the browbeating going on that you could step in and say, no, no, no. This has past, you know, normal civil discourse, this is inappropriate, this person has made their individual moral judgment, could you kind of step in?
JUROR: I would hope so. I am assuming that this follows intense discussions and, I mean, obviously I would respect anyone's opinion. But, I mean, it has to be challenged to a point based on what we have learned. But obviously a person's opinion is their own. I can't change that.
ROBERT MADSEN: And you understand that if it gets to the point where it gets past that normal back and forth civil discourse that if it was, got to the point of the bullying or the browbeating, that the law says, hey, you can write a note to the Judge and say this is just gotten out of hand. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And if you saw that would you be able to do that?
JUROR: I believe so, yes.
ROBERT MADSEN: For you, does someone's personal life history, does that matter to you as far as determining what the appropriate punishment would be?
JUROR: What do you mean by personal life history?
ROBERT MADSEN: Well, just their upbringing, just how they have grown up?
JUROR: I wouldn't believe so, no. Can you give me an example of what you are referring to.
ROBERT MADSEN: Well, maybe someone had a hard life. Like the Judge said, I think he might of used some examples, had a hard life, substance abuse in the past, things along those lines.
SHAWN GRAHAM: Your Honor, I move to object. If he wants to ask the question the way you have asked the question I think it is appropriate.
THE COURT: I sustain the objection. Rephrase it similar to the way the Court did because I think that has been asked and answered to consider mitigation.
ROBERT MADSEN: Let me ask, let me just kind of move forward and ask this. The fact that the Solicitor in this case is asking for a death sentence and I guess he is on your Board. One-hundred percent sure that wouldn't affect your decision?
JUROR: It would not at all, no. As I said, the Solicitor and I have never met before.
ROBERT MADSEN: Sure.
JUROR: Prior to today.
ROBERT MADSEN: Obviously I have got to ask those questions.
JUROR: Sure.
ROBERT MADSEN: Just to make sure. That is all the questions I have.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Is it Buehrig.
JUROR: Buehrig.
SHAWN GRAHAM: Thank you for being here this afternoon. My name is Shawn Graham and I am one of the Prosecutor's in the case. I have a few follow-up questions for you. In the guilt or innocence phase, you understand because of his plea of not guilty by reason of insanity that there are four verdicts.
JUROR: What was just read, correct.
SHAWN GRAHAM: You have guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty. Those four for the jury to consider.
JUROR: Okay.
SHAWN GRAHAM: You are going to hear most likely testimony from psychologist and psychiatrist and other people like that, experts. Because of the rules of court most people aren't allowed to give opinions but experts are. So they would make an opinion, make an opinion that he was insane and he didn't understand the moral differences or the difference between right and wrong, legally or morally because of a mental disease or defect. Okay?
JUROR: Okay.
SHAWN GRAHAM: You would understand or agree with me that as a Juror you just don't take that opinion blindly?
JUROR: Correct.
SHAWN GRAHAM: You still evaluate it, use your own common sense to determine whether you believe that opinion or whether to support it?
JUROR: Correct.
SHAWN GRAHAM: If there is a verdict of guilty but mentally ill or a guilty, a guilty verdict then we would go to that second phase. And in the second phase, if you or a member of the jury found an aggravating circumstance which as the Judge explained would be, in this case, would be either the death of a child under eleven or multiple deaths. Only then could you consider the death penalty as an option.
JUROR: Okay.
SHAWN GRAHAM: At that point, as a Juror, you would either have the decision to make life without parole or death. You understand that?
JUROR: Correct.
SHAWN GRAHAM: Okay. In making that decision you have to listen to all the evidence, evidence that is put up by the State and evidence that is put up by the Defense. Anything that the Defense puts up is called mitigation. Things for you to consider, a reason to give not death but life. You understand that?
JUROR: Correct.
SHAWN GRAHAM: Just because you hear mitigation doesn't mean you have to give a life sentence. You understand that?
JUROR: Yes.
SHAWN GRAHAM: It is just something to consider. If after hearing all the evidence, both the good and the bad, and the aggravation and mitigation, if you felt life was the appropriate sentence could you give a verdict of life without parole?
JUROR: I could, yes.
SHAWN GRAHAM: If after hearing all the evidence in the punishment phase, the good and the bad, and you thought death was the appropriate sentence, could you make a vote for death?
JUROR: I could, yes.
SHAWN GRAHAM: And one final question, if you and all the other jurors, after deliberating and going back and forth and explaining everybody's position and what you are considering and why you are considering and listening to what they are saying, if all of you unanimously agreed that death was the appropriate verdict in this caese you would actually have to sign a piece of paper with your name. If that is the decision that you and the other jurors reach would you actually be able to put your name on a document for the death penalty?
JUROR: I could.
SHAWN GRAHAM: Thank you very much.
THE COURT: Anything else, Mr. Madsen?
ROBERT MADSEN: No, sir.
THE COURT: Step in the back and I will have you back out here in a second. (Whereupon, the Juror was excused from the courtroom.)
ROBERT MADSEN: Judge, we believe that he would be mitigation impaired. He had indicated that the background wouldn't be relevant as far as determining punishment. So we do believe that he ought to be excluded. I think Joy has it but we would cite State versus Bell, Bell versus Sterling, United States versus, Morgan versus Illinois, Eddings versus Oklahoma.
THE COURT: Mr. Graham.
SHAWN GRAHAM: Your Honor, he answered your questions and said that he could consider everything. I think when you start going down the road and asking specific questions, because something is not important to him doesn't mean he couldn't consider it. And when Your Honor gives him the law and told him that he had to consider it, every element of mitigation, he acknowledged that he would follow the law and do what he was suppose to do. He said that he would listen to all the good and the bad and based on that to make a decision. I think the questions are inappropriate and I think that is why we keep running into the same problem. Regardless, Your Honor, I think he is qualified with the totality of the circumstances.
THE COURT: Based upon the totality of all the answers to his questions, the questionnaire, the questions answered by the Court as well as those answered for the Defense and prosecution, I find him qualified. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Buehrig, the Court has found, based on all of your answers, I find you qualified to sit as a potential Juror. So what is going to happen next is, the qualifying jurors, trying to find a group of qualified jurors sufficient enough to meet the demands. You are on that group so you will follow the website. The qualified jurors is the instructions you will look for. It may state to please check back tomorrow, it will finally say please report bask to Lexington County Court House of some date and time. I suspect it will be early next week, but just check that website. Do not, under your oath, talk about the case, allow the case to be discussed with you, do any independent research. Do not do any independent research, surfing the internet, looking up facts. There is a lot of information out there, none of it is, been scrutinized in this courtroom in a court record, none of the rules of evidence. I want you and all the jurors to decide the case on what you hear in this courtroom, not something that you have received outside the courtroom. Can you do that under your oath?
JUROR: Yes, sir.
THE COURT: I will see you when you get summoned back.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a short break.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in number 495. (Whereupon, Juror 495, Amy Wright entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Wright, spell your name and say it so I can make sure you are speaking loud enough for Ms. Holston.
JUROR: Wright, W-R-I-G-H-T. Amy, A-M-Y.
THE COURT: Ma'am, since Monday, I placed you under oath and asked you not to talk about the case. I ask the same questions to everybody else. Have you talked about the case in any manner whatsoever with anyone?
JUROR: I have not.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: No.
THE COURT: Do, you heard some publicity because I gave you some. I gave you the allegations--
JUROR: Only what you gave me.
THE COURT: That is all you have heard?
JUROR: That is all I have heard.
THE COURT: Have you formed an opinion as to what happened based upon what I told you?
JUROR: No. I need more facts.
THE COURT: You need more facts.
JUROR: I need more facts.
THE COURT: Excellent. Tell me about your work schedule coming up, if the jury were to start, if you were selected as a qualified Juror and we were to start next week. I am expecting your jury responsibilities will carry through late May, early June, so about three weeks.
JUROR: Okay.
THE COURT: Would that impact your personal schedule, work schedule or otherwise?
JUROR: No, sir.
THE COURT: You are open?
JUROR: I am open.
THE COURT: Excellent. I gave you an overview of the criminal process. Do you, did you understand those instructions?
JUROR: I did.
THE COURT: Now, based upon that instruction, that tells you that a Capital case is generally divided into two phases. Phase one is the guilt or innocence phase. Phase two is the punishment phase. Presuming phase one was proved by the State and a guilty verdict was found then the jury were to consider and the State proved an aggravating factor and a mitigating factor would also be presented. Could you identify yourself as one of those three typical types of jurors?
JUROR: Type three.
THE COURT: Type three. And your answer to the first question kind of eluded that, you need more facts.
JUROR: Yes.
THE COURT: Now, I am going to go back to another question and ask you this. The subject matter that, the death of these children. It has been described to me, lawyers have heard and they have exchanged all of the information so they know all of the evidence out there available, I don't. They have described the testimony and evidence as being graphic, harsh, unpleasant, it is going to be tough. That is the kind of answers and descriptions I have gotten regarding the subject matter that will be presented to the jury. Will testimony and consideration of that type of subject matter being described as tough and unpleasant be difficult for you to receive and consider and also be a fair Juror considering it being that unpleasant?
JUROR: I think I could be fair.
THE COURT: Understanding the testimony will be unpleasant, can you be fair and impartial and consider that testimony?
JUROR: I can.
THE COURT: Or evidence.
JUROR: I can.
THE COURT: Maybe photographs, descriptions, I don't know what all might be presented but unpleasant and tough is what I am told. Can you do that?
JUROR: I can.
THE COURT: Okay. Now, in the two phase of a Capital case, the first phase is guilt or innocence. In that phase the State is required to prove the murder beyond a reasonable doubt. They have got to prove the killing of another with malice aforethought, all elements beyond a reasonable doubt. A person accused of that has several defenses available to them under the statute. I am going to read them all and come back and tell you, I will instruct on whichever one of those may be relevant depending on the testimony. Potential defenses to a murder are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are potential defenses. The testimony has not been presented, it will be during the trial and during that first phase. Mr. Jones has claimed one of those defenses and intends to present evidence to that defense. Other testimony could come into play which may impact whether any one of these other defenses is also applicable. So can you consider all the testimony and evidence, knowing the State has the burden of proving its case of murder beyond a reasonable doubt, consider any of the defenses instructed by the Court and the aspects of the law on those particular defenses and act as a fair and impartial Juror for both the State and the Defense.
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: All right. Now, Mr. Jones has claimed and is going to present, has entered a plea for not guilty by reason of insanity. By virtue of that plea that brings into play four potential verdicts. Forms of the verdict could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty at all. Those are the four verdict forms.
JUROR: Okay.
THE COURT: Can you likewise, the same circumstances, consider the State has the burden of proving its case beyond a reasonable doubt, consider all aspects of the facts, testimony and evidence presented, weigh that and consider it, meaningfully consider it consistent with my instructions on their burden, the State's burden as well as the aspects of those verdicts. Can you meaningful consider each and every one of those four potential verdicts?
JUROR: Yes, sir.
THE COURT: Can you be fair and impartial in doing so?
JUROR: Yes, sir.
THE COURT: Now, if the State does not meet its burden or proving the case or the jury is finding not guilty by reason of insanity, if that happens the case is over, it ends. If the State meets its burden, proves its guilt beyond a reasonable doubt the case moves to phase two. During phase two jury's have to make a decision on punishment. The jury has got two choices subject to some more facts to be proved. The two choices are life or death. So the State must prove, during the punishment phase, one of several statutory aggravating factors and I will name off a few. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors under our statutes. The State has to prove at least one of those beyond a reasonable doubt. If they do so then the State may seek a sentence of death. Also during the sentencing phase the Defendant presents on mitigating factors.
There are mitigating factors allowed under the statute, there are also mitigating factors that are just general mitigating factors jurors can consider. I will list the mitigators. The Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional 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 his 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. There are also other factors that jurors can consider, whatever they want in imposing a life without the possibility of parole sentence including his childhood, the way he was raised, broken home if that is what the circumstances, whatever else, they can consider any of those factors as mitigating factors in deciding to vote for a life sentence. Now, can you give meaningful consideration to the State's burden of proving an aggravating factor beyond a reasonable doubt, as well as any and all mitigating facts which are presented by the Defense, give meaningful consideration to those and the instructions of the Court on the law, how to evaluate all of that presentation of evidence and testimony and act as a fair and impartial Juror?
JUROR: Yes, sir.
THE COURT: Can you be fair and impartial to both the State and to the Defense considering that same question?
JUROR: Yes, sir.
THE COURT: Now, do you know of any reason why you could not, whether it be personal, religious, moral, could not find a punishment in the sentencing phase of the death penalty?
JUROR: No, sir.
THE COURT: Do you know any reason whatsoever, religious, moral, personal belief that you could not make a finding of life without parole sentence?
JUROR: No, sir.
THE COURT: Do you know any reason whatsoever you can't be fair and impartial to both sides?
JUROR: No, sir.
THE COURT: Did I ask you about the witness list?
BILL MCGUIRE: I don't think so, Judge.
JUROR: No. I didn't know anybody on it.
THE COURT: Did you know anybody on it?
JUROR: No, sir.
THE COURT: Nobody on the witness list. That won't be a problem then. Sorry about that.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, Ms. Wright, how are you doing today.
JUROR: I am good, how are you.
BILL MCGUIRE: A little hoarse. Thank you for being with us and being patient, this is a slow process. We have been in here working the whole time. I am going to ask you some questions about your views of the death penalty.
JUROR: Okay.
BILL MCGUIRE: And I want to start by asking you to put yourself in a situation where you are the Governor of South Carolina for a day and you have a Bill on your desk that says, we are not going to have the death penalty anymore. And you have a Bill where you keep the death penalty. Which way would you go?
JUROR: I want to say I don't know.
BILL MCGUIRE: Let's say you were Queen of--
JUROR: Queen for the day.
BILL MCGUIRE: Queen for a day and it is the Kingdom of Right and only you can make the decision, which way would you go?
JUROR: Probably life without parole.
BILL MCGUIRE: You lean towards life without parole?
JUROR: Yes.
BILL MCGUIRE: Okay. And would you agree with the statement that the death penalty, we do have it obviously now but it should be reserved for the worst of the worst?
JUROR: Yes.
BILL MCGUIRE: And the Judge talked to you about the category of some kind of cases with aggravating factors. And I want to focus on the one, killing multiple children. Would that fit in that category, the worst of the worst?
JUROR: Yes.
BILL MCGUIRE: And could you consider the death penalty for that?
JUROR: I could.
BILL MCGUIRE: Could you consider the life sentence for that?
JUROR: I could.
BILL MCGUIRE: And in determining what sentence is appropriate do you think that the person who committed the murders, the killings rather, their background, how they grew up, their walk in life, their background, character, in fixing punishment for that type of crime, would the background of the person be relevant?
JUROR: It could.
BILL MCGUIRE: And when you say it could, what are you thinking?
JUROR: Not knowing everything it is hard for me to, like, I have--
BILL MCGUIRE: I know, it is extremely difficult.
JUROR: Yes, it is really--
BILL MCGUIRE: Here is my question, some folks say, you know what, if it doesn't have anything to do with the actual incident, the offense, then I am not going to consider it because I am just going to look at the facts and the punishment is going to fit the crime and i don't really think it is relevant about somebody, how they grew up 10, 20 years ago. Is that you?
JUROR: I think that it, I don't know. Honestly, it is, yes.
BILL MCGUIRE: You would be open to hearing it?
JUROR: I would have to hear the whole thing in order to know whether or not how I would determine that. It just depends on the situation.
BILL MCGUIRE: Sure. And the Judge also told you that Mr. Jones has plead not guilty by reason of insanity. And that means there is an admission that the Defendant committed the acts and the only thing at issue is what was his mental state at the time. And the Judge would tell you that, if you find that there was a mental disease or defect that prevented the person, the Defendant, from right from wrong or moral right from wrong or legal right from wrong, then the verdict would be not guilty by reason of insanity. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Have you heard those words before, that definition before?
JUROR: No.
BILL MCGUIRE: But now that you know it, some folks might say, you know what, killing multiple innocent children, not guilty by reason of insanity is kind of a copout or almost letting the guy go and it wouldn't really consider that verdict. What do you think about that statement?
JUROR: I don't know.
BILL MCGUIRE: Okay. I want to kind of walk through this process with you and tell you a little bit about how this works, a little bit more detail. If I say something you don't understand or if I say something confusing you just start asking me questions. Okay.
JUROR: Okay.
BILL MCGUIRE: And the Judge told you a little bit about the first phase of a Capital trial, that is just a regular, do they have the right guy, is he guilty, that sort of thing. But the penalty phase in a Capital trial is extremely unique and it has a lot of things change, it is not a group decision anymore, it is twelve individual jurors and each Juror has the right to have their own view about what the punishment should be. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: And the way and an example of how that could work out. A Juror number one right here could say, you know what, I saw something about his mental health, mental illness and I am not going to vote for death for somebody who I think has a broken mind. And that is my reason. And then another Juror could say, you know what, I think he knew right from wrong and I am not buying the mental health thing. But I saw an enduring relationship between the Defendant and his father. I saw a spark of humanity there, some hope of redemption and this Juror could say that is going to be my reason and they don't have to even agree. In fact, different jurors could have twelve different reasons to vote for the life penalty. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: The whole jury doesn't have to agree, this is why we are doing this. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: Okay. Sound fair?
JUROR: Yes.
BILL MCGUIRE: And the Judge would instruct the jury at the end of the trial, if we got to a penalty phase, that any individual Juror could vote for the life penalty for any reason, no reason or mercy alone. Does that sound fair?
JUROR: It does.
BILL MCGUIRE: So in that situation some people are better at articulating their opinions, views and some person on the jury might say, you know what, I can't really put into words just why I will not vote for death, why that is not right for me. But as I contemplate the rest of my mortality I don't want that black mark on my sole but I can't really give it a reason. They are allowed to do that. Does that sound fair?
JUROR: Yes.
BILL MCGUIRE: And the way this decision is described, individual position on what punishment should be is called an individual moral judgment. And if it becomes a belief that is strongly held, a conscientious belief, where it would harm their conscious to change that position it would be against the Court rules for that person to just go over to the majority for the sole sake of joining the majority. Do you understand that would be wrong?
JUROR: Yes.
BILL MCGUIRE: While we expect reasonable deliberations and civil discourse, if you saw somebody, you could see it on their face, they had reached, it would harm their conscious to vote for death, and they were being bullied or forced or coerced to change their position, to go with the majority, that would be wrong. And could you jump in and stop that?
JUROR: Yes.
BILL MCGUIRE: And one of the things you could do, you could just pass a note out to the Judge saying, we were told these proceedings have to be conducted with dignity and civility has left the room, it has become coercive, it has become bullying. And, Judge, could you help us get that back here, could you help us get back to the civility. Could you pass a note out like that?
JUROR: Yes.
BILL MCGUIRE: I think that is all I have for you. That is all, thank you so much.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Ms. Wright. My name is Suzanne Mayes, I am a prosecuting attorney in this case. We represent the State. I just have a few questions for you, just to follow-up kind of on some of the reasons you gave just a few moments ago.
JUROR: Okay.
SUZANNE MAYES: Defense Counsel was asking you about your views on the death penalty. I think your initial response was you couldn't really even answer what you would do if you--
JUROR: I would have to hear more, yes.
SUZANNE MAYES: Have you thought much about the death penalty prior to coming into jury service last week?
JUROR: No. To be honest, no. I have never had to do anything like this so it is not something you think about on a daily basis.
SUZANNE MAYES: Not something you had to write an essay for or anything like that in school. With that in mind, how would you best summarize for us here in court, what your feelings are about the death penalty and whether it is appropriate under the law?
JUROR: In certain situations I feel that there are times that people cannot be redeemed. But at the same time, I don't know if I could, I don't know, I don't know. I would have to know more, I am sorry.
SUZANNE MAYES: When you said I don't know if I could and I don't want to put words in your mouth but can you finish that statement--
JUROR: I don't know if I could without knowing all the facts because that is someone's life. So I would have to know everything in order to make a decision like that. I can't just, just give you a yes or no to that without knowing everything about it.
SUZANNE MAYES: So I want to come back to that where you said I don't know if I could. That is because the whole purpose of this hearing right now and having you testify is so that you can tell us what you could or couldn't do. And there is no right or wrong answers. If the answer is I don't think I could then we would need to know that as well. So I know when the Judge was giving you the potential Juror types that were on that sheet, and you felt like you were a type three?
JUROR: Yes.
SUZANNE MAYES: Part of what type there is, is a Juror who can, who knows that they want to hear all the evidence, want to hear all the facts but they know that they can return a verdict of either life without parole or the death penalty. And it sounds like you are part of type three because you want to hear all the facts. But that second element of type three, you don't know if you are there because you don't know if you can in fact return a death penalty.
JUROR: It is not that I don't know that I can, it is that I need to know the whole story before I can give an answer to that question. I have to consider everything before I can consider the two. Does that make sense.
SUZANNE MAYES: Okay. Ultimately if the jury of twelve unanimously decided that the death penalty was appropriate, after hearing all of the facts. Part of what they would do is sign their name to a form, each individual Juror confirming the death sentence. And so you are saying you would have to hear all the facts to even know what a verdict would be and that is absolutely understandable. That is why we have a trial, that we have that first stage of morally, morally can you sentence someone to death, can you sign that form in any kind of case?
JUROR: Yes.
SUZANNE MAYES: And you feel comfortable with that?
JUROR: Yes.
SUZANNE MAYES: Another thing that Defense Counsel was asking you about is a potential defense of not guilty by reason of insanity or a plea of not guilty by reason of insanity which is one of the four potential verdicts that would be submitted in the initial phase of this trial, what we call the guilt phase of this trial. And I think the question that Counsel posed was, what do you think about the defense is a copout. And you gave an honest response of I don't know. Is there anything more that you can elaborate on that, on the potential not guilty by reason of insanity?
JUROR: I am not really, say it again.
SUZANNE MAYES: So--
BILL MCGUIRE: We object, asked and answered. It is actually my exact question that is being asked.
THE COURT: I will let her rephrase one time but I agree with you, she has answered she could. So I want Ms. Mayes to reask it to make certain it is clear.
SUZANNE MAYES: Okay. So when you say I don't know, you don't know if you can consider the not guilty by reason of insanity verdict?
THE COURT: Rephrase your question to giving the parameters and the balance like we have been talking about, I think that would be appropriate.
JUROR: Or just repeat it.
SUZANNE MAYES: Okay. So with the four possible verdicts in that first phase of the trial being guilty, guilty but mentally ill, not guilty be reason of insanity and then not guilty. The one that was proposed to you earlier when Defense Counsel was asking questions was specifically about not guilty by reason of insanity. Is that something that you can consider a copout or is that a defense that you can truly consider, is that evidence you can truly consider of a verdict?
JUROR: Depending on the situation, I guess. Again, I am not getting the whole story here. Y'all are giving me bits and pieces and it is hard to answer.
SUZANNE MAYES: And it becomes problematic, isn't it.
JUROR: It is.
SUZANNE MAYES: You haven't heard any of it.
JUROR: Exactly, because I don't want to say yes or no because I don't know until I am presented everything. And then at that point I can answer any question you want.
SUZANNE MAYES: Because it is premature to even try and give an answer to something at this stage?
JUROR: Yes. It is really difficult, sorry.
THE COURT: I am going to ask you a question, a similar question that was asked before. In the guilt or innocence phase where the Court will instruct you on aspects of those four particular verdict forms and the law on that.
JUROR: Yes.
THE COURT: Testimony is going to be there for you to consider. Can you consider my instructions and whatever evidence that is presented and make a fair verdict finding and be fair to both sides.
JUROR: Yes sir, that I can do.
THE COURT: Anything else Mr. McGuire?
BILL MCGUIRE: Nothing further for Ms. Wright or the Court.
THE COURT: Anything from the State?
SUZANNE MAYES: No sir, Your Honor.
THE COURT: Ms. Wright, you are qualified as a Juror. You are not on the jury but a qualified Juror. That means you will be part of the group that will come back to have a jury selected form. In the meantime, check the website--
JUROR: And don't talk to anybody.
THE COURT: No, Ma'am. There is a lot of testimony you are going to hear in the courtroom, it is going to be special, lay people, whatever. I want you and the rest of the jurors to decide the case on what you hear here in the courtroom, not what is presented out there on the newspaper, internet, television. That is not the scrutiny of the evidence laws or court of under oath. I want you to consider and determine this case on what you hear in here and my instructions so you are not leaving out facts or you are not getting all the facts. On the outside of the courtroom, that is, potentially could happen. Don't do any independent research, minimize your contact with the publicity, don't talk to anybody about the case. That is your oath. See you when I see you next, check the website and make sure to come back.
JUROR: Thank you, sir.
THE COURT: Thank you, Ma'am. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Next one is 136. Wait a minute. This Juror called the Clerk's office numerous times complaining about being summoned in and nobody answering the phone. She has been a problem for the Clerk's office. (Whereupon, Juror 136, Robin Ehrlich entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Hello.
JUROR: Hello.
THE COURT: Ms. Ehrlick, is it?
JUROR: Yes sir, that is correct.
THE COURT: Can you spell and say your full name for Ms. Holston to make certain we can hear you through the microphone.
JUROR: Sure. Robin N. Ehrlich. E-H-R-L-I-C-H.
THE COURT: Ma'am, I placed you under oath Monday, I am asking you the same question I ask everyone else. Have you had any contact with anybody to discuss this case since Monday when I told you not to?
JUROR: Not at all.
THE COURT: Has anybody tried to contact or communicate with you regarding the facts of this case or trying to communicate with you about being a Juror?
JUROR: No, sir. Not at all.
THE COURT: Now, there has been publicity, social media, news media, whatnot, a lot of that since Monday but also prior to Monday before you took the oath. I also read to you five indictments out loud on the record. Has any information which has come to you, from whichever source, don't care where it came from, my question is this. Has any of that information that has come to you created an issue for you, have you already formed an opinion as to what you think happened in this case?
JUROR: No, sir.
THE COURT: Now, what do you have on the calendar coming up week after next, the week following and the week following. Anything on the work schedule, personal schedule, vacation, such as that.
JUROR: My daughter has a couple of doctors appointments. My husband and I are both retired military so he works from home, so it is not a problem. She is on home bound right now. She is 16 but I am retired so I don't do anything. Well, excuse me, I do a lot. I am a domestic engineer.
THE COURT: So you don't have anything particular on your calendar but a lot of things on your calendar?
JUROR: Yes, a lot of things but nothing in particular.
THE COURT: So you could serve if so called?
JUROR: Yes, sir.
THE COURT: Now, I gave an overview of the criminal procedures of a Capital case, a two stage process. Stage one is guilt or innocence. Stage two is the sentencing. Jurors are tasked to do both stages if they hear facts consistent with and make findings consistent with my instructions. There are three types of typical jurors. Have you reviewed that typical Juror sheet?
JUROR: Yes sir, I have.
THE COURT: Did you understand my instructions or my explanation of the criminal procedures that takes place in a Capital case?
JUROR: Yes, sir.
THE COURT: And can you find yourself in one of those three typical types?
JUROR: Yes.
THE COURT: Which type?
JUROR: Type three.
THE COURT: Type three. That means you want to hear everything before you make a decision?
JUROR: Every time.
THE COURT: All right. That being the case, I am going to ask you a few more questions. Stage one, when the jury is required to listen to the State offering proof, their burden to prove the case beyond a reasonable doubt of the murder itself. The State has got to present testimony and evidence to that end. The Defendant accused can claim defenses as well as they can request the Court to instruct jury's on potential defenses if the facts support them coming from the testimony. I have not heard the testimony yet so I don't know exactly what the testimony will come out to be. There could be additional defenses other than the one Mr. Jones has already claimed that he intends to try to prove. Other testimony may support one of these other defenses. Potential defenses allowed under our statute are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Now, if the Court hears testimony which could support the jury considering one of those defenses I would instruct you on the aspects of that particular defense. Mr. Jones is claiming not guilty by reason of insanity. So certainly I will instruct on that defense.
JUROR: Thank you.
THE COURT: Now, understanding the Court will instruct you, can you consider, give meaningful consideration to all the testimony offered by the State, offered by the Defense, considering the required proof of the State on its attempt to prove guilt beyond a reasonable doubt as well as any testimony by the Defense on its defense it is claiming, consider all of the testimony, consider all the evidence, consistent with my instructions and be fair to both sides. Can you be fair to the State and the Defense knowing that is going to be your oath?
JUROR: Yes sir, I follow directions very well.
THE COURT: Do you understand that the testimony will come however but I will give you instructions on the aspects of the four potential verdicts which could come out based upon Mr. Jones' plea. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Those are the four potential verdict forms. Can you consider my instructions on the particulars of those four individual verdict forms, give meaningful consideration to the testimony and evidence that you hear as a Juror and make a finding but be fair and impartial to both the State and the Defense?
JUROR: Yes sir, I can.
THE COURT: You can do that. All right. Now if a finding by the jury is unanimous, not guilty or not guilty by reason of insanity the case ends. It stops right there. If the State meets it burden of proving the case beyond a reasonable doubt and guilt is found the case proceeds to phase two. During phase two the State is required to show a aggravating factor. I am going to name off several, just got to show one. Killing of a policeman, killing of a child, rape of murder, kidnapping of murder, multiple murders. The State must prove one of those aggravating factors beyond a reasonable doubt in order to ask for a sentence of a death penalty. During the sentencing phase the Defense presents testimony of mitigating factors, mitigating evidence meaning those are reasons to assign sentence of life without parole. I am going to read you the statutory parameters of mitigating. There are others, also that are non-statutory.
The 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 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. Those are statutory mitigating factors that evidence could support any of those.
No proof required, just consideration by the jury. They must consider those. Other mitigating factors jurors can consider are how he was raised up, troubled childhood, broken home, any aspect of his growing up can be considered a mitigating factor. Now, during the sentencing phase jurors have two choices to sentence. Life or death. The State has got to prove the aggravating factor beyond a reasonable doubt to ask for a sentence of death. The death penalty is not automatic. The two sentences are the only two options. Mitigating factors are presented by the Defense and considered by the jury. There is no burden to show them, they are just presented and considered. Can you give meaningful consideration to my instructions on the law, the requirement of the State to prove the aggravating factor and give meaningful consideration to any and all aspects of mitigating evidence presented by the defense and reach a verdict in this case consistent with my instructions and to consider all of those factors and instructions?
JUROR: Yes sir, I do believe I can.
THE COURT: Can you be fair and impartial?
JUROR: Yes.
THE COURT: Can you be fair and impartial to both the State and the Defense?
JUROR: Yes.
THE COURT: Do you have any moral, religious or personal belief that you could not impose the death penalty?
JUROR: No sir, I do not.
THE COURT: Do you have any religious, moral or personal belief that you could not impose a life without parole sentence?
JUROR: No sir, I do not.
THE COURT: Do you know any reason whatsoever you could not be fair to both sides?
JUROR: No sir, I do not.
THE COURT: Did you read over the witness list?
JUROR: I did. It was a very long list.
THE COURT: It was a very long list. Under the rules they give me all the potential witnesses, in case they may call them. It is likely they won't call all of the potential witnesses, they call many of them. Do you know any of them?
JUROR: No, sir. A couple of names. Like the first names I recognized but nothing, no one that I knew personally. There was a Jamie on there. I just don't know the person's last name, I don't know him. It is just that I am the Treasurer for the Lexington High School Marching Band. There is 140 band members. One of the parents may be, I don't know his last name, Jamie McClellan. But I don't know where Smith County is so I don't know what the dad does for a living.
THE COURT: And that is an out-of-state witness.
JUROR: Okay. So I don't even though, that was the only one that even sounded somewhat familiar to me but I don't know him personally.
THE COURT: There is some witnesses from out-of-state that could be called by both parties. If they are from out of state you are not connected to them.
JUROR: I was stationed in a few States around the Country.
THE COURT: But the McClelland.
JUROR: No, not at all.
THE COURT: But if he is an out-of-state witness, you are not connected?
JUROR: No, I wouldn't know him. There was a Jamie that is in our marching band that I am a Treasurer of.
THE COURT: All right. Now, tell me about this, there was some questioning in the inconvenience, I asked about your personal schedule. There was some, it is an inconvenience to everybody that serves on a jury but it is kind of a civic duty, civic responsibility. The Court is very aware of the inconvenience it puts on people and jurors. I try to minimize that inconvenience but the undertaking of calling in a panel of 500 something, I got in 185 people in the courtroom. It is a challenging logistics for a small County like Lexington. Lexington is not a big County. Understanding that can you still be fair and impartial understanding that there is a huge challenge put upon the Court and the Clerk's office to organize that?
JUROR: Yes, sir.
THE COURT: I want to make sure.
THE COURT: Mr. Young.
BOYD YOUNG: The nature of the evidence, Your Honor.
THE COURT: Yes, did not ask that. I forgot that question. The testimony, evidence presented in this case throughout the trial is going to involve the subject matter that it describes, shows, give the evidence of the death of children. It is described to me by the lawyers, all of them consistently using different words but, graphic, harsh, unpleasant, very difficult. They have not described anything other than descriptions of that type. Understanding the subject matter will be difficult and harsh, unpleasant, can you consider, evaluate the testimony and evidence of that type and still be fair and impartial to both sides. Because this impacts both, the evidence and testimony can be difficult on people personally. I need to know it now because half way in the trial, you know, the ship has sailed and we have got to keep going, I can't stop.
JUROR: Yes sir, unfortunately I have seen the death of children by working in, being deployed to Bosnia, all ages. It is not pleasant whatsoever but it is something that I have dealt with and not comfortably but could.
THE COURT: Could you consider and be fair and impartial to both sides.
JUROR: Yes.
THE COURT: Mr. Young.
BOYD YOUNG: Thank you, Your Honor.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Ms. Ehrlich.
JUROR: How are you.
BOYD YOUNG: Thank you for your service, I hope you enjoyed your time over in Sumter.
JUROR: That was our last assignment, yes sir.
BOYD YOUNG: I want to talk to you a little bit about your views about the death penalty. Okay. Is where the option where somebody has been found guilty of murder. Okay. Can you tell me sort of your general philosophy regarding the death penalty?
JUROR: To be honest I have never really thought about it. I know it is an option and some of our States in the United States, I honestly didn't know it was in South Carolina. I never gave it much thought either way. I know there are certain cases where it is called for and is needed depending on the State that it is legal in. I am comfortable making a decision either way on in.
BOYD YOUNG: Okay. Can you tell me about those situations where it is called for or needed?
JUROR: Mass murders like the school shooting. That guy two years ago shot up the school, Columbine, things like that.
BOYD YOUNG: Sure.
JUROR: Even though the person was not of age so I don't know that they were an adult or not. But I have never really thought about it. I am so sorry.
BOYD YOUNG: That's okay. I understand where you are coming from. Let me ask you one follow-up question. Is there anybody about those people, the school shooters, that you could learn that would make you think, you know what, maybe life without parole is the appropriate penalty for them?
JUROR: Oh, sure. Absolutely. You have to take into consideration where their mind was, how they were raised, their family background, their personal situation. Even the situation that day. I mean, I know there are times that I have had road rage behind a car where I wanted to do more than honk a horn. So, I mean, you, not making that lightly but there are definitely mitigating circumstances in every case.
BOYD YOUNG: I totally understand where you are coming from. The Judge has told you that Tim has plead not guilty by reason of insanity.
JUROR: Yes.
BOYD YOUNG: And in South Carolina what that means is that, I did the killings but because of mental disease or defect was not able to understand the legal or moral wrongfulness of my actions. Do you understand that?
JUROR: Yes, I do.
BOYD YOUNG: And some people thinks that defense sounds like a copout, like that is just an excuse, that would just be letting somebody off. Does that statement resonate with you?
JUROR: No, sir. I have had PTSD myself from just times at war. And can understand situations where that could occur.
BOYD YOUNG: So you could see yourself, if you felt it was appropriate, rendering a verdict of not guilty by reason of insanity?
JUROR: Yes, I could.
BOYD YOUNG: Thank you. Moving forward a little bit, after you found somebody guilty of murder, as the Judge has told you, intentional murder with malice aforethought and we are talking about multiple children, guilty of murder of multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Some people in that situation say death is the only appropriate punishment. It sounds like you, that is not, that would not describe you as somebody who says, based on that I am at death?
JUROR: No, you have to delineate mitigating circumstances to determine that and their state of mind if they are temporarily insane because of other things that have happened. Then, no, it would not be.
BOYD YOUNG: For you life without the possibility of parole could be an appropriate punishment for that type of murder?
JUROR: That is a very good punishment, yes.
BOYD YOUNG: Okay. The way we get there and make this ultimate decision which is what we have been talking about, sort of these mitigating factors. And the Judge has told you aggravating factors have to be proven by the State to all twelve jurors, they all have to agree on it that it is proven beyond a reasonable doubt and they have to be unanimous on it. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Mitigating circumstances do not have to be proven to any level of proof and they don't have to be unanimously found by the jury. Do you understand that?
JUROR: I am sorry, could you repeat that?
BOYD YOUNG: Sure. Each Juror gets to decide for herself what is or is not mitigating. Okay.
JUROR: Okay.
BOYD YOUNG: The Judge will tell you if it is presented mitigation evidence you have to consider it as mitigation. You can't think of it as aggravating. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: But you get to personally decide what value that evidence has to you. Does that make sense to you?
JUROR: Yes, that makes sense.
BOYD YOUNG: Some Juror could say I saw a relationship with his family and based on that mitigating circumstance I want to give that piece of mitigation, to me it gets the value of life, I want to vote for life for that reason alone. Does that make sense?
JUROR: Yes sir, that does.
BOYD YOUNG: And another Juror could say, I disagree. I don't think that that is mitigating or certainly doesn't rise to the level of giving value to a life sentence but for me I thought there was mental illness. And based upon that reason alone I want to vote for life. And that is perfectly okay. If they don't agree, they have different reasons.
JUROR: Yes, sir.
BOYD YOUNG: Does that make more sense about why it doesn't have a burden of proof and why it doesn't have to be unanimously found?
JUROR: Absolutely.
BOYD YOUNG: And finally a Juror can say, I don't have a reason. For me, based on who I am, based on mercy alone, based on my concept of mercy, I can't put it into words but for me I have decided that life is the appropriate punishment and I can't explain it. Could you respect the right of a Juror to say, I can't put it into words, I can't explain it to you but for me it is right.
JUROR: Can I respect a Juror that does, says that?
BOYD YOUNG: Yes, ma'am.
JUROR: Yes, I believe every person has, who has selected has that burden in your heart and in their mind to choose for themselves. We are individuals.
BOYD YOUNG: Right. And that, ultimately this decision about whether or not somebody lives or dies is called an individual moral judgment. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: An individual moral judgment is like choosing what faith is appropriate for you. You have made your own decisions about that.
JUROR: Yes.
BOYD YOUNG: And you recognize that other people may have made different decisions for themselves about that?
JUROR: Yes.
BOYD YOUNG: And you respect their right to make their own individual moral judgment about what is right for them?
JUROR: Absolutely. I fought for my Country, the right of freedom of religion is very important to me.
BOYD YOUNG: Right. And individual moral judgment, whether who we kill or what faith is right for us, those are individual moral judgments. And you respect the right of everybody to make their individual moral judgment about those types of decisions.
JUROR: Absolutely.
BOYD YOUNG: If you saw somebody who was being bullied or pressured to change their individual moral judgment would you stop it?
JUROR: Yes, I would speak up that each person has their own right to their own opinion. That is very important to me, I was a first sergeant for six years. And when the Judge reads the information and I am going to assume that it is going to say that each person has the right to make their own decision. If someone is bullying someone else then that is not following the Judge's instructions and that is inappropriate.
BOYD YOUNG: Thank you very much.
BOYD YOUNG: Based on the Court's limitations I will stop there.
THE COURT: Very well. Mr. Graham.
SHAWN GRAHAM: Thank you.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Ms. Ehrlich, my name is Shawn Graham, I am one of the Prosecutor's on behalf of the State in this case. You understand that in the first phase, which is the guilt or innocence phase, the Judge said there are four verdicts. You remember that?
JUROR: Yes.
SHAWN GRAHAM: Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty. In that phase you potentially will hear testimony from people who are allowed to give expert opinions. And actually tell you it is there opinion, like psychologists and psychiatrists. Do you understand that just because they give an opinion, as a Juror you would still have the right to determine whether you believe that opinion, whether the facts supported it. Does that make sense?
JUROR: Yes, sir.
SHAWN GRAHAM: Okay. If you were a member of the jury and you found that he was guilty or guilty but mentally ill but guilty, then it goes to that second phase. And in the second phase the State would have to prove beyond a reasonable doubt the aggravating circumstances, a child under the age of eleven or multiple deaths. That is called an aggravating circumstance. Only after the State proved to you and the other jurors unanimously that one or more of those aggravating factors existed because you can consider death and you understand that?
JUROR: Yes, I do.
SHAWN GRAHAM: Given that situation then you would hear evidence in aggravation and evidence in mitigation. So evidence that made things worse than the facts you already heard and evidence for you to consider life. Do you understand that?
JUROR: Yes.
SHAWN GRAHAM: Okay. You understand that just because mitigation evidence is presented and you hear it and you believe it, that that is a reason to give life.
JUROR: Would you repeat that.
SHAWN GRAHAM: If mitigation is presented and you believe it you can use that as a basis to give life. Do you understand that?
JUROR: Yes, I do.
SHAWN GRAHAM: Just because you hear it and you believe it you can also give death. Do you understand that?
JUROR: Yes, I do.
SHAWN GRAHAM: If at the end of the day, you as a member of the jury, my understanding is you want to hear everything?
JUROR: Absolutely.
SHAWN GRAHAM: And if the facts supported it then you would be able to talk with the other jurors and tell them about your point of view?
JUROR: At the end, yes.
SHAWN GRAHAM: And you would listen tot their point of view?
JUROR: Yes.
SHAWN GRAHAM: And if you and all the other jurors thought life was appropriate based on the circumstances of this case you could vote for a life sentence?
JUROR: Yes.
SHAWN GRAHAM: If on the other hand, you and the other twelve jurors unanimously thought death was the proper verdict then you would and all twelve could vote for death. Is that correct?
JUROR: Yes, after talking through it, not bullying like the other person.
SHAWN GRAHAM: Right. Not bullying but actually there would have to be a give and a take.
JUROR: Yes, communication.
SHAWN GRAHAM: All the same opinion or different opinions. But if unanimously after not bullying everybody reached the same verdict that death was appropriate you could vote for death?
JUROR: Yes, I could.
SHAWN GRAHAM: Okay. One last question is. And another unique thing about the death penalty in South Carolina is if you were one of those jurors and you and all twelve decided that death was appropriate you would actually have to sign your name to what is called the death warrant or death verdict. Do you understand that now?
JUROR: I understand that now.
SHAWN GRAHAM: If you thought that it was appropriate and the other jurors did too and unanimously you all voted for death, knowing that you would have to sign your name on it, if you thought that was appropriate punishment, could you actually sign it?
JUROR: Yes, I could.
SHAWN GRAHAM: Thank you.
THE COURT: Anything further?
BOYD YOUNG: No, Your Honor, nothing for the Court.
SHAWN GRAHAM: If Mr. Madsen and I could 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: Ms. Ehrlich, you are found qualified by the Court to be a Juror in this case. What you will do is you are going to monitor, that doesn't mean you are going to be selected, it means you are potentially a Juror. But you are qualified, so look at the list, it will say call back next week or late this week, to determine which jurors out of that qualified group will then be selected or not excused, to remain on the jury or one of the alternates. So you are on the qualified list but not yet excused from service. So I am going to have you come back. I will tell you when to come back on the internet. That website you have been watching for, you are now looking at the instructions for qualified jurors. You are not on a panel anymore, you are a qualified Juror group. Follow the instructions, it says look back tomorrow, look back tomorrow, then it says come in Monday, come in Monday. It will tell you the date and time when to come in. Until that time do not talk about the case, do not discuss the case, don't let anybody question you about the case and do not do any independent research. Don't read any news accounts, publicity or any type, minimize that impact. What you need to decide this case you are going to get in here with the lawyers, experts, appropriately under the law. Things outside the courtroom, I have no control or monitoring, nobody is even under oath. They can say what they want to say. I want you to be impacted in decision making on sworn testimony under the scrutiny of the courtroom and lawyers, not no scrutiny whatsoever.
JUROR: Yes sir, you made that clear at the last time.
THE COURT: Can you follow that oath?
JUROR: Yes, I can.
THE COURT: See you when you get summoned back.
JUROR: Could someone write down, under jury selection, is that what it is under?
THE COURT: It is under qualified jurors. Thank you very much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: I am going to put the conversation at sidebar on the record. Ms. Ehrlick is Treasurer of the Lexington Band. Mr. Graham and Mr. Madsen have children in the band, they sold some things to raise money for the band. She apparently didn't recognize them but both of them are in the same posture. I don't know that she knows all the students by first name. It is a large band. So, neither one found an issue with that but that is on the record. If that needs to be addressed further we will.
ROBERT MADSEN: No, sir.
THE COURT: Okay. Fair enough. Let's bring in number 244. (Whereupon, Juror 244, LaDonna Lee entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Ma'am, I told you earlier, my name is Eugene Griffith, I am the presiding Judge of the case. I remind you you are under oath. I have got certain questions to ask you and I am going to roll through them as rapidly as I can without confusing you. You talked to anybody about the case since Monday?
JUROR: Yes.
THE COURT: Who did you talk to?
JUROR: It was about the case but it was basically about what was expected in here.
THE COURT: Let me go back and ask you to say and spell your name for the record.
JUROR: LaDonna, L-A-D-O-N-N-A; last name, L-E-E.
THE COURT: Tell me who you talked to about what is expected of you in here?
JUROR: I don't know her name, we didn't discuss names in there. It was before you brought us in here and said we were under oath.
THE COURT: Okay.
JUROR: And we just said, wonder what is going on in there and what have we got to do. It wasn't anything really specific, we were all laughing about just--
THE COURT: Sitting there waiting.
JUROR: Yes, it really was nothing specific.
THE COURT: Now there has been publicity, in the news, on social media, news media, whatever media. Before Monday, years ago, several months ago, recently and since Monday. I gave you the indictments, I read them out loud in front of the entire jury panel Monday. That is information. Has any information you come across or received or got, seen or heard, cause you to form an opinion in this case?
JUROR: No, sir. I banned my mother from calling me under after I get through with this. I had to. She wanted to know and I kept saying, Mama, I can't talk about it. So I finally had to call my sister and have my sister to tell my mama, don't ask me any more questions. And I could still see her Sunday.
THE COURT: You still want to see her on Mother's Day?
JUROR: Yes.
THE COURT: I think you better.
JUROR: Sorry, I didn't mean to laugh.
THE COURT: That's okay. I understand. Mothers and concerned cousins, family, like to make certain they know everything.
JUROR: Right.
THE COURT: But what they know and what they are getting is not sworn and it is not under, I want you to consider what is in here.
JUROR: Yes, sir.
THE COURT: Have you formed an opinion yet?
JUROR: No, sir. I actually know nothing about it because, other than whenever you gave us the dates and read those indictments the other day. My husband was actually in the hospital for almost a year. So that time period in my life, I didn't care what was going on in the world.
THE COURT: You had other things more important?
JUROR: Yes, sir.
THE COURT: Now, what is your calendar like starting next Monday for about three weeks. What do you have on the agenda that you got due, planned, paid for or obligated to do?
JUROR: My birthday is the
JUROR: Yes.
THE COURT: Okay.
JUROR: I am going to be here, I mean not here.
THE COURT: Another year.
JUROR: Yes, hopefully, Lord willing, if the creek don't rise. I am going to be at work or either I will be here. I plan on having a pool installed the last week of May.
THE COURT: A swimming pool?
JUROR: Yes.
THE COURT: Dug in the ground or placed on top?
JUROR: No, sorry. I have to go on top of the ground. But it is the biggest above ground.
THE COURT: Good luck with that.
JUROR: Thank you. Can I get a note for the husband said you vote for it?
THE COURT: I will tell him that I have cleaned one myself. Now, I gave you a list of witnesses. Do you know any of the witnesses on the list?
JUROR: No, sir.
THE COURT: Now, the subject matter of this case involves, let me go to a question. I gave you the instructions of the procedure.
JUROR: Yes, sir.
THE COURT: Two phase type trial in a Capital case. Phase one is guilt or innocence, phase two is sentencing. The jury has got to determine both, guilt beyond a reasonable doubt unanimously. The jury has got to determine the sentencing phase to consider aggravating circumstances if proved by the State then they can ask for the death penalty. That is what I read to you. Did you understand those instructions, they are broad, no facts have been presented to you so in broad terms. Did you understand that?
JUROR: In broad terms I did understand that.
THE COURT: Now, in broad terms can you identify yourself as one of those three types of jurors?
JUROR: I can in broad terms.
THE COURT: What is it?
JUROR: Number three.
THE COURT: In broad terms that is, I haven't heard much, I want to hear everything.
JUROR: Right, that is the type of person I am in real life.
THE COURT: So you have not predetermined what is going on?
JUROR: No. I found out when I was young, don't judge a book by its cover. Find out what is on the inside.
THE COURT: So you want to hear all the aspects of the case before rendering a decision?
JUROR: If I am going to be involved I want to know everything. And if I don't know I will ask.
THE COURT: Okay. Now, certain, the case is divided into two parts. We will go into part one, I am going to describe that for you.
JUROR: Yes, sir.
THE COURT: Part one involves the guilt or innocence. The State has got to prove the murder beyond a reasonable doubt. Mr. Jones is presumed innocent right now, all the way throughout the trial until the State disproves it.
JUROR: Correct.
THE COURT: Proves it, the burden of proof beyond a reasonable doubt. They will present evidence on that. The jury will consider it consistent with my instructions.
JUROR: Yes, sir.
THE COURT: There are some defenses available. He has claimed one, there are others if the testimony supports any of the others I may instruct on those. So I am going to give you potential defenses that could be proven. All of them might not but I will list them all out of an abundance of caution.
JUROR: Okay.
THE COURT: Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. The testimony may support one of those, may not. If there is no testimony regarding one of those it wouldn't come into play, the Court would not instruct it but it could and if it does the Court will instruct you on the aspects of any of those potential defenses. Now, can you give meaningful consideration to the State to prove its case beyond a reasonable doubt of the murder but also consider any aspects of any defenses that the Defense presents on or the jury can consider regarding any facts and testimony that has been presented during the first phase of the trial, consistent with my instructions and evaluate that testimony and evidence but be fair and impartial to both sides. Can you do that?
JUROR: I can, Your Honor, as long as I had, was able to ask questions for clarification and clarity.
THE COURT: Okay. Now, I am hopeful that my instructions will be clear enough. I have jurors ask questions like please clear up the definition of reasonable doubt. I can do that. Jurors generally aren't allowed to ask questions. So, Judge, can we, we would like to ask that witness a question or, Judge, can we ask you a question, why didn't so and so get called as a witness.
JUROR: That is none of my business.
THE COURT: Right. Some questions I can answer but some I can't. So considering my instructions I will clear up definitions as best as I can. Hopefully my instructions will be concise, clear and efficient. So can you follow my instructions and if you need clarification request that but make findings and be fair to both sides considering my instructions.
JUROR: Yes sir, Your Honor.
THE COURT: Now, if Mr. Jones has presented a defense of not guilty by reason of insanity. The Court will define that to you at the time of considering the case, in the guilt or innocence phase. I will define others because there are four potential verdict forms in this case by entry of that plea. There is guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Those four potential verdict forms will be instructed by the Court, the aspects and the particulars of the law and how to arrive at or consider whether the testimony can allow jurors to find those potential verdict forms. Can you meaningfully consider all four of those potential verdict forms provided you have direct and concise and explicit instructions on the law. I intend to do that. But consider the testimony, all aspects of it consistent with my instructions. Can you be fair and impartial and find each one of those four potential verdicts?
JUROR: I can, Your Honor.
THE COURT: Consistent with my instructions and also unanimously?
JUROR: Yes, sir.
THE COURT: All right. Now, if the State proves its case beyond a reasonable doubt, not guilty, not guilty by reason of insanity is not proven or decided by the jury. Unanimous verdict of guilty the case goes to phase two. At that point the State then has to prove an aggravating factor. I am going to name off several. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, murder of multiple people. Those are aggravators. If the State proves one of those aggravators beyond a reasonable doubt the State can then ask for the death penalty. They have got to prove one of those aggravators during the sentencing phase beyond a reasonable doubt. Do you understand that will be in my instructions at that time?
JUROR: I do.
THE COURT: Also during the sentencing phase the jury will consider any testimony of mitigating facts. Mitigators are reasons to assign the life without parole sentence, to not find the death penalty. Statutory ones which are allowed to be considered to be presented on are the 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 and committed by another person, I am sorry, the murder was committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. 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 that the jury considers if the testimony supports it. All right, under the age of 18, the testimony is not going to support that.
JUROR: Yes.
THE COURT: Now, other mitigating factors, any reason whatsoever a jury wants to believe or assign a reason to give a life without parole sentence such as the Defendant's childhood, came from a broken home, any aspects of his rearing, the jury's can consider that and assign that to be a mitigating factor if they so choose. So can you give meaningful consideration to the State's required burden of proving the aggravating factor, the State must prove one of those before the State can seek the death penalty. The jury must consider any mitigating testimony, facts and circumstances to be shown, they don't have to be proven, just shown. Jury's can assign belief on those as they see fit. Can you give consideration to all the testimony, whether it be an aggravating factor, beyond a reasonable doubt proof required and mitigating factors and reach a fair verdict in this case, be fair to the State and be fair to Mr. Jones?
JUROR: Yes I can, Your Honor.
THE COURT: Now, you understand that during the sentencing phase, two potential verdicts, death or life. No other options, no middle ground. Got to find one of the two.
JUROR: Yes.
THE COURT: You got to consider my instructions in evaluating the testimony in reaching your verdict.
JUROR: Yes.
THE COURT: Can you be fair and impartial to both the State and the Defense in considering only those two options?
JUROR: Yes, sir.
THE COURT: All right. Additionally, do you have any religious, moral or personal belief that you could not impose a sentence of death if the facts and circumstance warranted it and the jury was unanimous in that decision?
JUROR: No, sir.
THE COURT: Any reason you cannot find a life without parole sentence, religious, moral or personal belief that you would not find that sentence?
JUROR: No, sir.
THE COURT: Very good. Do you know anybody on the witness list?
JUROR: No, sir.
THE COURT: None whatsoever?
JUROR: I swear I don't. I live here but I am from Camden.
THE COURT: You are from Camden?
JUROR: Yes.
THE COURT: Okay. Those are my questions, so I am going to allow Mr. Madsen to ask you questions. And, remember, you are under oath, no wrong answers, looking for your personal beliefs.
JUROR: I will answer him like I answered you.
THE COURT: Very well.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: How are you today?
JUROR: Doing well and yourself.
ROBERT MADSEN: So, the Judge kind of went over some stuff for you asking you if you can follow the law. What I want to talk with you about is kind of your personal feelings. Okay. There is no right or wrong answers, it is just kind of what you believe.
JUROR: Okay.
ROBERT MADSEN: Did you know anyone else when you came in on the jury panel?
JUROR: No, sir.
ROBERT MADSEN: So can you just kind of tell me what your general feelings about the death penalty are?
JUROR: Actually I have never give it a thought on how I would vote if I was able to do anything about it. But since last Monday I have given it a lot of thought and I could do it if, I could vote yes or I could vote no but I would need to know all of the facts and I would need to know the who, what, why, when and where. And I wouldn't, I would not do it because I was scared that it would be that, made somebody leave this earth, for lack of a better word. And I wouldn't say yes just to be a vindictive person. It would take a lot, I would have to know before I would say yes. I would have to listen to the whole thing.
ROBERT MADSEN: Would you say like the death penalty is a kind of punishment of last resort?
JUROR: Yes.
ROBERT MADSEN: Kind of reserved for the worst of the worst?
JUROR: Yes.
ROBERT MADSEN: Now, you heard the Judge talk to you about the four different types of verdict, not guilty, guilty, not guilty by reason of insanity and guilty but mentally ill. And you heard that Tim has plead not guilty, not guilty by reason of insanity.
JUROR: Yes.
ROBERT MADSEN: You understand that?
JUROR: I do.
ROBERT MADSEN: And that basically means that someone is saying, hey, I did the murders but I, because of a mental disease or defect I could not or did not understand the difference or did not understand moral or legal wrongfulness of my conduct. Do you understand that?
JUROR: I understand.
ROBERT MADSEN: And some people would say, hey, to me that is just kind of a copout. You know, to me--
JUROR: And they don't understand mental illness.
ROBERT MADSEN: That is just not something that I can consider. Is that you?
JUROR: No.
ROBERT MADSEN: If you heard evidence that is something that you could meaningfully consider?
JUROR: Yes, if somebody can prove that they actually had a history or actually at that time had a mental break, I would be able to be fair about it. I believe I would.
ROBERT MADSEN: Like I said, no right or wrong answers.
JUROR: I know, I just--
ROBERT MADSEN: Let me ask you a little bit, I want to talk about your feelings of punishment of a guilty murderer of multiple children. So we are talking a situation, I am putting you in a a place where you and eleven other jurors have listened to all the testimony and if there was something about mental illness you have rejected that and said, no, this person knew the difference between right from wrong, whether morally or legally, not an ID problem. In other words, this is the person who did it. It is not self-defense or accident or anything like that. Are you with me?
JUROR: Yes.
ROBERT MADSEN: And there is on justification or excuse or anything like that. And so you got someone who maliciously and intentionally killed multiple children. And my question to you is, obviously, and in that situation you could get a life penalty or a death penalty and I want to find out what your opinion is as the death penalty is the appropriate punishment for that guilty, guilty intentional murderer.
JUROR: Yes.
ROBERT MADSEN: So you wouldn't want to hear--
JUROR: If everything else had, like you just said, had been gone through, we had verified that there was no mental illness, it was intentional, it was malicious, didn't have nobody else to blame but themselves and, yes.
ROBERT MADSEN: So in that type of case, it sounds to me like in that situation where you had the guilty murderer of multiple children, for you the death penalty is the only appropriate--
JUROR: No. It was proven, the scenario you provided me, you said everything else was off the table and it was proven. In that case, proven with a preponderance, no doubt, yes, the death penalty.
ROBERT MADSEN: Okay. So in other words, like I said, you heard that first part of it, you and the other eleven jurors have found that person guilty, no doubt whatsoever. He intentionally killed multiple children. For you the death penalty is the only appropriate punishment?
JUROR: If the death penalty is part of the punishment, and we have checked off the list and everything matches up, yes.
ROBERT MADSEN: And to you in that situation a life without parole sentence would never be a sufficient punishment?
JUROR: To me, no. You have done it, you were maliciously doing it, you had your sound mind and you did it. You admitted you did it. There is no other reason, why should you continue on.
ROBERT MADSEN: Sure. And a lot of people think that. Just as I said, this is just and it sounds like that is something that, you know, that in your heart of hearts truly believe?
JUROR: I wouldn't have said it if I didn't.
ROBERT MADSEN: And there is nothing that I could do to kind of talk you out of that or the Judge or the Prosecutor could talk you out of that?
JUROR: Not based on the scenario you just provided me.
ROBERT MADSEN: And so stuff about that guilty murderer's background or character or anything like that, you wouldn't want to hear any of that?
JUROR: You didn't put that in your question. Your question was, everything had been mitigating, everything had been decided and now it was time to determine if there was going to be life without parole or either there was going to be the death sentence. Now, had you told me during the deciding part, before it got to the part that, okay, you are only going to get to say death penalty or no death penalty. Had you presented the evidence that there was a problem with the person that did the killing, no matter how many people or how small the people were, if they killed somebody based on they were beat half the time when they were a child, their daddy was a drunk, their mama was a prostitute and don't nobody care about them and they felt like the world was nothing. That might have something to do with it but that is not how you asked me.
ROBERT MADSEN: Okay. Fair enough. Well, what I am trying to find out though is, so and I don't want to put words in your mouth.
JUROR: No, you are not going to.
ROBERT MADSEN: Got a feeling I wouldn't be able to.
JUROR: No, you are not because I take this very seriously.
ROBERT MADSEN: Sure and as everyone obviously should. So even if you found there is no justification or no excuse you still want to hear everything before you decide the punishment?
JUROR: Yes, sir. Why would I do it any other way, that would be a lie.
ROBERT MADSEN: And you understand that a death sentence is never required for even a guilty murderer.
JUROR: I understand that and based on the scenario you gave me before you told me there could have been, the person's childhood, based on the original question you presented to me, death penalty. Based on the second scenario where there could have been some problems in upbringing and stuff as that, depending on the extremities, I could be considered a different outcome.
ROBERT MADSEN: Well, now, so you understand, as the Judge told you--
JUROR: I feel like he was asking me two different questions in one.
THE COURT: He understands that, he is trying to rephrase his question.
ROBERT MADSEN: Sometimes I can be confusing.
JUROR: You are not confusing. You think you are confusing but you are not. There was two totally different things going on with your statements.
ROBERT MADSEN: If I do that--
THE COURT: The reason it is taking so long to do this, sometimes lawyers do that and they don't know it but you caught him so he is going to ask you a better question. Mr. Madsen, ask a better question and be clear with your question.
ROBERT MADSEN: Just want to make sure, as the Judge kind of told you, it is kind of like two different trials. There is a guilt or innocence phase.
JUROR: I understand that.
ROBERT MADSEN: And what I am saying or what I was trying to convey is that you and eleven other jurors have kind of gotten past that first part. So if you have heard any defenses or anything like that you have determined that this person is a guilty murderer and I am trying to kind of take you into the second phase where you decide the penalty.
JUROR: Okay.
ROBERT MADSEN: Do you understand that?
JUROR: I got that.
ROBERT MADSEN: And so I guess my question is, after you have gotten or through that first phase and determined that there wasn't any justification, any excuse--
JUROR: No childhood, everything was cut and dry, point to the death penalty. If everything was based on the original question that you provided me, no mitigating circumstances, no bad childhood, just a mean individual that is going to be to nobody's good in society and is never going to go free, death penalty.
ROBERT MADSEN: And so in that situation you started, the death penalty?
JUROR: No. You, bless you. It is not funny, you are not going to trick me on this one. No, I am going to finish this. You ask me a question and it was a cut and dry question to begin with. I answered it, you added to it. I answered to it again, you added to it again. We circled back around to the original question with some more stuff added to it. It is like, baking a cake. Now we are adding butter to the cream. I have already explained to you, if there were no extenuating circumstances the person was just like a bad apple, just rotten to the core and instead of that person rotting away in a jail cell, never going to do nothing for society, always going to be just a lump in a chair, on a cot in a room. Yes. But, no, I would not start there, I do not take death lightly.
ROBERT MADSEN: Okay. I just wanted to make sure.
JUROR: I wanted to make sure you understood where I stood, that I don't want you putting words in my mouth.
ROBERT MADSEN: And I don't think you would let me.
JUROR: I won't. I have complete respect for you in this court but this is not the time for runaround jokes. This is serious.
ROBERT MADSEN: Now, when we talk about kind of the background in that, as the Judge told you, he kind of told you about what is statutory, mitigation and then there is other types of mitigation which you understand that there isn't any kind of burden of proof with those types of things?
JUROR: Yes. From the part that he explained to me, I am definitely not college material so I don't know the definition but I will find out.
ROBERT MADSEN: Well, the State, they will want to prove aggravating circumstances to you. And those have got to be found beyond a reasonable doubt and those have got to be found unanimously but by all twelve jurors. Do you understand that?
JUROR: I understand that.
ROBERT MADSEN: And then like I said, mitigation can be just what an individual Juror sees.
JUROR: Okay.
ROBERT MADSEN: And so say, this Juror right here can say, you know, I saw something about his relationship with his father and for me that is mitigation and I want to give that the weight of life. Do you understand that?
JUROR: I got it.
ROBERT MADSEN: And maybe the second Juror says, you know what, I didn't see that but I saw that he had some mental illness and to me that is mitigation and I want to give that the weight of life?
JUROR: Okay.
ROBERT MADSEN: And you understand that they might kind of disagree on mitigation but each Juror gets to find mitigation within themselves.
JUROR: I get you.
ROBERT MADSEN: And there could be a third Juror that says, you know what, I didn't see or heard what they saw and you know, I really can't put it into words as to why but for me the appropriate penalty is the life without parole sentence.
JUROR: And I can get there if it presented itself to me.
ROBERT MADSEN: And you could respect somebody that says, you know what, I can't tell you why, I just know that this is right?
JUROR: Just because somebody else's opinion is not my own does not mean I don't respect it.
ROBERT MADSEN: And some people would call that, you know, this idea of mercy. And my question to you is, is mercy something that somebody earns or is it something that is just freely bestowed on another?
JUROR: No human being has the right to provide mercy to another, we provide comfort, we provide all types of things. But mercy is something that everybody has and it is up to you as an individual to provide it. It is not something that we can just put in a court of law.
ROBERT MADSEN: And you understand that once a jury has considered, once a jury has considered mitigating evidence, on whether or not they decide to put another human to death, that is kind of called an individual moral judgment.
JUROR: Yes.
ROBERT MADSEN: And the way it has been explained to me is kind of what you decided as your faith, it is an individual moral judgment that you have made for yourself. And that is maybe different from someone else's moral or individual moral judgment about what their faith is.
JUROR: Okay.
ROBERT MADSEN: And you would expect them to respect your individual moral judgment on that, correct?
JUROR: I would hope so, yes.
ROBERT MADSEN: And at the same time I think you would respect their decision?
JUROR: I would give it a one-hundred percent to do so.
ROBERT MADSEN: And you understand that when you are back in the jury room there is a, people should have a civil discourse and talk about what they think. You understand that?
JUROR: I do.
ROBERT MADSEN: But the law basically says that once a Juror comes to their individual moral judgment they just can't throw that away to go in with the majority. Do you understand that?
JUROR: I understand that.
ROBERT MADSEN: And if you were back in the jury room and you saw it got beyond kind of civil discourse to where it got to the point of bullying--
JUROR: It is time to call in the bailiff.
ROBERT MADSEN: And that was kind of my question. Are you the type of person if you saw that you could say, you know what,--
JUROR: I tell on myself all the time at work. Yes, sir. I am the one that will tell you that I am late, I am the one that will tell you I wasn't sick, I just didn't want to go in. I will tell you that I went fishing. So, yes, I am that person.
ROBERT MADSEN: And you understand that it is appropriate to say, you know, right a note to the Judge, hey, Judge, it has gone beyond civil discourse back here, can you help us out?
JUROR: I probably wouldn't use the word, civil discourse, but I would say, call the Judge.
ROBERT MADSEN: Okay.
ROBERT MADSEN: Judge, subject to your previous rulings that is all the questions I have.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Ms. Lee, my name is Shawn Graham, I am one of the Prosecutor's in the case and I appreciate you being with us this afternoon.
JUROR: Yes, sir. Nice to meet you.
SHAWN GRAHAM: Nice to meet you. You came in and you said you were a type three, right?
JUROR: Yes.
SHAWN GRAHAM: And you are a type three right now too, aren't you?
JUROR: Yes.
SHAWN GRAHAM: You want to hear everything?
JUROR: Yes.
SHAWN GRAHAM: You want to hear the good--
JUROR: The bad, the ugly and in between.
SHAWN GRAHAM: And then after you hear all of that, if you thought that life was appropriate you could give life?
JUROR: I could.
SHAWN GRAHAM: And if you thought death was appropriate you could give death?
JUROR: I could and if I thought freedom was appropriate I could give that.
SHAWN GRAHAM: You do realize that that won't be--
JUROR: I do but I am just telling you.
SHAWN GRAHAM: But that section, the first section that would be a choice, you are right. One of those four choices would be not guilty or not guilty by reason of insanity. In the second section, if you and the other twelve jurors found that death was the appropriate, you would have to actually sign your name, some people have a problem with signing their names to documents. You have a problem signing if you thought that was the appropriate sentence?
JUROR: No, sir. I would sign my full name.
SHAWN GRAHAM: Okay. In that second phase you heard people talking about mitigation. You heard that word now.
JUROR: Yes, sir.
SHAWN GRAHAM: Which is a reason, it has been described as a reason to give life. Do you understand that?
JUROR: Yes, sir.
SHAWN GRAHAM: Just because mitigation is presented and you hear it, on one hand you can choose that is the reason I am going to give life. You can also hear it and say that doesn't mean anything to me or that is not important--
JUROR: It doesn't affect me, right.
BOYD YOUNG: Objection, Your Honor. You can't say it doesn't mean anything.
THE COURT: It was the individual decision of mitigation, I think how he characterized the question.
BOYD YOUNG: That is a misstatement of the law.
THE COURT: Recharacterize that question. I understand what you meant now.
SHAWN GRAHAM: I didn't mean to misstate anything. I do apologize.
SHAWN GRAHAM: You can hear evidence presented in mitigation, anything presented by the Defense would be presented in mitigation.
JUROR: Okay.
SHAWN GRAHAM: Just because it is presented does that mean you have to individually find that as a reason to give life. Do you understand that?
JUROR: I understand.
SHAWN GRAHAM: You still get to weigh it for what you think it is worth?
JUROR: That's correct. I get to weigh it upon my own feelings and thoughts.
SHAWN GRAHAM: Yes, and then after you would go back and discuss with all of the other jurors what your feelings and thoughts were and listen to theirs and then reach a consensus.
JUROR: Thank you.
SHAWN GRAHAM: Thank you, Ma'am.
THE COURT: Anything else?
ROBERT MADSEN: No, sir.
THE COURT: All right, Ma'am, step out real quick, I am going to talk to the lawyers and have you right back in here. Nothing? Wait, come back in here.
SHAWN GRAHAM: Your Honor, if we could approach at sidebar.
THE COURT: Okay. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Ms. Lee, considering all of your answers, questionnaire and questions in here, I have found you to be a qualified Juror. That doesn't mean you are on the jury, it means you are qualified to be on the jury based upon your answers. I want you to follow the website, the Lexington website and watch for the instructions under the qualified jury tab. It will say, please look back tomorrow, please come back some other time. And then it will say, please come in here on such and such a date, such and such a time, that is when I want you back in here. Until that time you are under your oath.
JUROR: Don't talk to my mama.
THE COURT: Tell her Judge Griffith is really nice but he said absolutely no communication.
JUROR: She understands.
THE COURT: Tell her to steer clear of conversations about the case because that would create an issue for you. Because then you have got to come in here and tell me everything she asked you and everything she told you and then the lawyers get to listen. That will happen.
JUROR: I understand.
THE COURT: Don't do any independent research, look up things. What I want you to determine is based on what you hear in here.
JUROR: Yes, sir. I am that kind of person.
THE COURT: All right. So you are under oath to do that. Don't communicate, don't do anything, don't read the news media reports, social media.
JUROR: I haven't watched the news.
THE COURT: Okay. Don't go on social media.
JUROR: My husband tells me what the weather is.
THE COURT: Enjoy your Mother's Day and maybe we will see you very soon.
JUROR: Yes, sir.
THE COURT: Thank you, Ma'am.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
SHAWN GRAHAM: Judge, if I could just put something on the record.
THE COURT: You may.
SHAWN GRAHAM: The reason the State is opposed the way they are asking the questions, they keep citing Morgan versus Illinois, that is not, the questionnaire does not involve Morgan v. Illinois and leads to the problem we just had.
THE COURT: And she understood.
SHAWN GRAHAM: She did but I don't know that everybody has, that is our concern. Is that you throw it out there and honestly you are looking at disqualified people. And it is not a fair question. Morgan versus Illinois is a question that the Court should have been allowed to have asked was, if you found the Defendant guilty will you automatically vote to impose the death penalty no matter what the facts are. And that is what they are not asking, they are talking about, do you think it is appropriate, not automatic and you are not throwing in without needing to consider anything else. And that has been our objection the whole time and I don't know that we stated it.
THE COURT: And what we saw with this lady was a perfect example of you need to find out what her basis is and she was very confident and comfortable explaining to you that you changed the question and that was not an appropriate question.
ROBERT MADSEN: And, Judge, they keep on talking about fairness and that is certainly, you know, we are zealously representing Tim, I don't care about fairness. Morgan versus Illinois says that we have to ask questions to try to find out biased from people that might not even realize they have that biased. And so saying that we have to have some kind of standard for fair questions is absolutely ridiculous. I mean, it is a tough job where you have to ask questions to try to find out something that someone might not know themselves. And if we don't do that then we come back and we do this again.
THE COURT: Well, the way the question gets characterized can lead to this and that is what the stages, concerned about. And, you know, I understand that.
ROBERT MADSEN: And, Judge, I want her to talk me out of it, I want her to say you got me wrong and she did that.
THE COURT: She did that.
ROBERT MADSEN: She is a qualified Juror because of that. So it works.
THE COURT: Correct. Okay. Well, what I think would be the better question, are you automatically going to death, something like that. But always, maybe it is the word, automatic versus always. I don't know.
ROBERT MADSEN: How is automatic different from only which is a word that they, I mean that is basically the same thing.
THE COURT: Well, it is semantics and I am trying to help guide y'all.
ROBERT MADSEN: And they complained about only.
THE COURT: I am trying to guide y'all reasonably through this narrow course. So I understand their complaint. That is a good example of you walked down with her and then she explained to you why you changed the facts and she was correct. But, you know, you done it intentionally for a reason to see if mitigating factors impacted her decision making. And she was very clear, she did not want to make a decision without them. So, all right, let's go forward, we have got one more on this last panel.
BOYD YOUNG: Your Honor, can we take two minutes.
THE COURT: Yes, we can.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in 56, Elizabeth Brown. (Whereupon, Juror 56, Elizabeth Brown entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Brown.
JUROR: Good afternoon.
THE COURT: My name is Judge Griffith, you are under oath, I am going to ask you the same questions, basically the same order as everybody else. Since Monday have you talked to anybody about the case?
JUROR: Not about the case but jury duty.
THE COURT: And that was somebody earlier today before y'all came in here for my instructions?
JUROR: Yes.
THE COURT: She told me something similar, y'all discussed I wonder what is going on or what we would be asked?
JUROR: Yes.
THE COURT: That type of subject matter?
JUROR: Yes.
THE COURT: Other than that has anybody questioned you about the case?
JUROR: No, sir.
THE COURT: Now, there has been publicity, a lot of it, I gave you some information Monday. The accusations made by the State against Mr. jones are five counts of murder, such and such, I read those.
JUROR: Yes, sir.
THE COURT: That is the information. Other information may have come to you from any source whatsoever. Have you formed an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: Now, you have anything on your calendar starting next week for about three weeks if you were selected as a Juror could you serve or do you have vacation, something personal, work, some obligation that would create a hardship on you to sit as a Juror?
JUROR: I believe I could sit as a Juror, yes sir.
THE COURT: Okay. Fair enough. Now, subject matter in this case involves testimony, evidence, photographs, otherwise of children, the death of children. The subject matter has been described to me by the lawyers, Judge, this is going to be difficult. It is tough, graphic, unpleasant. That type of subject matter will be presented and considered by the jury in the court. Can you consider difficult and unpleasant testimony knowing that is what is coming in this trial and be fair to everybody because it is going to be harsh and unpleasant. You have got to consider it. If you can't I have got to know because that is going to be very difficult to sit and see. And it is going to come in. It is not like we are going to avoid it because the testimony is going to all of a sudden turn around and be something different. Can you do that?
JUROR: Yes, sir.
THE COURT: I sent you, I gave you the instructions on the law. Very, very broad instructions on the process, two step procedure for a Capital case, guilt or innocence and sentencing. If guilt is found then they go to sentencing and the sentencing the State has got to prove an aggravating factor from the statutes. Mitigation evidence is presented and considered by jurors. Understanding that is a very broad picture, do you have an idea, if you were seated as a Juror, which type of potential Juror you would be?
JUROR: I believe I would be Juror number three.
THE COURT: Okay. Now, understand that, Juror number three wants to hear facts, testimony and evidence. They don't have their mind made up. Now, this presupposes a conviction, murder and an aggravating factor. So there is no defenses considered in that portion. So the guilt is found, sentencing only is left. Can you still classify yourself as a type three because you want to hear other testimony?
JUROR: Yes, sir.
THE COURT: Okay. Some people get confused. There is still guilt up in the air. Guilt is not up in the air, it will be decided under this scenario. Did you look at my witness list?
JUROR: Yes, sir.
THE COURT: Those are potential witnesses. Not all of them will be called. Most of them might. Do you know any of these witnesses?
JUROR: Not personally but I know the name of the Lexington County Communications Officer. I worked at a firm that used to do work for the District.
THE COURT: Would that relationship, that friendship, knowing, would that affect your ability to be fair and impartial?
JUROR: No, sir.
THE COURT: Going back to the two stage process, stage one, phase one. Guilt or innocence, when the State tried to prove the murder, the State has to call witnesses, present evidence to try to convince a jury beyond a reasonable doubt unanimously of Mr. Jones guilt. He is seated right there is presumed innocent. The Constitution affords him that presumption. During that presentation Mr. Jones may provide testimony, testimony may come from someone of potential defenses. He is claiming one potential defenses already. If other testimony that could be considered by the jury's defense you may hear additional testimony. Do you understand?
JUROR: Yes, sir.
THE COURT: Now, I am going to read potential defenses and then tell you, I am not going to instruct on all of those but if testimony were to support it I could instruct on some of these. Potential defenses, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress, alibi. Those are potential defenses allowed by our statute one of which he has claimed and he is going to try and prove. Can you give meaningful consideration to any of those defenses, considering my instructions will be focused on the aspects of that law to explain it to you. But to consider the testimony, evidence you heard, consider the State has got the burden of proving guilt beyond a reasonable doubt. But also consider the instructions on defenses while evaluating the testimony and evidence and be fair to both sides, both the State and the Defense. Can you do that?
JUROR: Yes, sir.
THE COURT: It is going to be complicated because of the defense that Mr. Jones has introduced or going to prove, there are four potential verdict forms, guilty, guilty but mentally ill, not guilty by reason of insanity and guilty, I mean not guilty absolute. Of those four potential verdict forms can you give meaningful consideration to all four of those potential verdict forms considering my instructions to explain them and consider the testimony and evidence presented at trial and act as a fair and impartial Juror for both sides?
JUROR: Yes, sir.
THE COURT: So I will explain those defenses. I mean, I am sorry, the verdict forms and the defenses. Then you have got to evaluate the testimony as consistent with my instructions of the law. Do you understand?
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: Now, if not guilty or not guilty by reason of insanity is found the case ends. If guilt is found the State meets its burden of proving the case beyond a reasonable doubt then we go to phase two, the sentencing portion. In that portion the State is required to prove an aggravating factor. Several aggravating statutory factors could be murder of policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors, the State has got to prove one beyond a reasonable doubt. Also during that presentation mitigating factors, mitigating testimony, reasons to give life are presented by the defense. Jury's have to consider those mitigating factors under the instructions of the Court. Now, some mitigating factors could be, under our statute, 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 of the crime. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators or reasons to give life. There are other, childhood, broken home, anything a Juror wants to assign value to to give life is a mitigating factor.
You are not required to be on that statutory list. But jurors can assign reason to give life, can be any one of those. Don't have to give life but those are things that jury's consider. During the sentencing portion jurors have to consider the State's required proof of an aggravating factor. If they don't prove that the death penalty is not allowed. You have got to prove that beyond a reasonable doubt, unanimously. Mitigating testimony is considered by the jury. In the sentencing phase jurors only have two choices, life or death, nothing else. No middle ground, no other options. Can you give meaningful consideration to the State's requirements to prove an aggravating factor, as well as consideration of all the mitigating factors, testimony and evidence shown. Can you follow my instructions and make findings consistent with my instructions as to a potential sentence for Mr. Jones.
JUROR: Yes, sir.
THE COURT: Now, the death verdict. The jury has to be unanimous, all twelve jurors agree and all twelve must sign the verdict form. Can you do that?
JUROR: Yes, sir.
THE COURT: If a jury makes a unanimous finding of life without the possibility of parole then that sentence is imposed. Do you understand?
JUROR: Yes, sir.
THE COURT: Do you have any reason you could not, moral, religious, personal belief that you could not find a verdict, if the facts and evidence support it, you could not find the death penalty. Could you do that?
JUROR: Yes.
THE COURT: Let me reask it. I want to make certain if the facts support it could you find a verdict of punishment for death?
JUROR: Yes, sir.
THE COURT: If the facts support it, life without parole, could you, do you have any religious, moral, personal belief which would prevent you from finding that sentence?
JUROR: No, sir.
THE COURT: Mr. Young.
BOYD YOUNG: Your Honor, Ms. Kuchar from our office.
THE COURT: She has been sitting behind you.
EXAMINATION By Ms. Kuchar:
MS. KUCHAR: Good afternoon, Ms. Brown.
JUROR: Good afternoon.
MS. KUCHAR: I see that you are a legal assistant?
JUROR: Yes, ma'am.
MS. KUCHAR: Does your firm do any criminal defense work at all?
SUZANNE MAYES: May it please the Court?
THE COURT: Yes, ma'am.
SUZANNE MAYES: Can we approach?
THE COURT: Okay. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Okay, Ms. Kuchar.
MS. KUCHAR: Do you guys do any criminal work?
JUROR: The attorneys that I work for are not currently doing criminal work.
MS. KUCHAR: Okay. But you probably have a better understanding than most people are coming in about most of these legal terms and how the court works?
JUROR: Some understanding, yes ma'am.
MS. KUCHAR: I am not sure, my brain is a little bit jumbled at this point of the day. I don't know if the Judge asked you, have you heard about this case, whether it was back in 2014 or any time afterwards?
JUROR: No Ma'am, I didn't move to the State until 2015 and I don't have local cable or the local newspaper.
MS. KUCHAR: So you haven't heard anything about the case?
JUROR: No.
MS. KUCHAR: Okay. And, again, just to start off. The Judge talked to you about the law, I am really here just to kind of learn about your feelings, your attitude, your belief that you have held already before you came into this courtroom. There is no wrong answer, there is no right answer. You are not going, either way, I don't care what the answer is, I just want to know how you feel. Is that fair?
JUROR: Yes, ma'am.
MS. KUCHAR: Okay. And really I just generally want to know, have you thought about the death penalty much before you were summoned?
JUROR: Not before I was summoned but I have done some soul searching on it in the last week.
MS. KUCHAR: Well, tell me about that.
JUROR: I think to some extent, for me it is like being pro-choice. I personally am, would not make that decision. But that option is available because it is granted under the law. So it is there, it is the option and it is something to consider if the facts do support it.
MS. KUCHAR: So it sounds to me like you are saying it is a big choice. Obviously it is something that you take very seriously. And you would consider making the choice?
JUROR: Yes, ma'am.
MS. KUCHAR: What kind of cases do you feel you would be willing to make that kind of choice for that?
JUROR: I think it depends on the factors behind the case, no case is alike. No evidence presented is going to be alike. So it is, just depends on the case itself.
MS. KUCHAR: Can you give me a little bit more, what would you be looking for?
JUROR: Something well--
SUZANNE MAYES: Objection, Your Honor.
SHAWN GRAHAM: Objection, staking.
THE COURT: Okay. Step out real quick, I need to put another thing, I have got another issue. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Changing lawyers is slowing this thing down. We have got eight jurors sitting back in the back that I am getting blamed for being late. Ma'am, it is not your fault, you haven't been up here so I am really not throwing criticism to you. I want to get through three panels, I still do. This is moving slower now because you changed lawyers and put her up here, put her in a real bad spot for me. I am not happy about that, put her in a bad spot. She has not done this and she has not gotten the, she has been here. Let's take a couple of minutes but I am frustrated because y'all are moving slow and we have got jurors sitting back here and I want to get through three panels. Everybody has got a little bit of blame, a little bit of fault including me. But this is not really fair to those guys and the ladies back in the back. So please help me manage them, I have already been asked by the Clerk about the panels tomorrow. I think we may want to go ask them and see if they want to come in tomorrow so they are not sitting here for two hours and fifteen minutes thus far. I am just unhappy about that and I am blaming all of y'all equally and accepting my own blame so I am not pointing all fingers. I have been part of it too. We have got to go faster to get this done and beating dead horses and asking the same questions. It is not fair to the jurors we are trying to get through here. Take a couple of minutes.
(Whereupon, a short break was taken.)
THE COURT: Are y'all ready to proceed on. Ma'am, I apologize, I understand your difficult position that they put you in. I am blaming them. Okay.
MS. KUCHAR: I don't consider it has a difficult position, Your Honor. I am just sorry if I am taking too long.
THE COURT: Go ahead and bring that Juror back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Reask your question.
EXAMINATION By Ms. Kuchar:
MS. KUCHAR: Sorry about that. I think we were just talking about the soul searching that you have done. And it sounds like you could consider both the life penalty and the death penalty?
JUROR: Yes, ma'am.
MS. KUCHAR: Depending on the circumstances?
JUROR: Yes, ma'am.
MS. KUCHAR: And then it also sounds like to me that even in a case where there are the deaths of multiple children, and you found that person guilty you could consider both the life penalty and the death penalty?
JUROR: Yes, ma'am.
MS. KUCHAR: There would be no penalty that would be automatic for you?
JUROR: Yes, ma'am.
MS. KUCHAR: And you heard the Judge explain mitigating factors to you?
JUROR: Yes, ma'am.
MS. KUCHAR: Did you understand what those meant?
JUROR: Like a situation or condition that is, I am going to call it parallel to whatever the event was.
MS. KUCHAR: Okay. And the way I am going to describe it is just any reason that is offered to choose the life penalty instead the death penalty. So that could be a lot of things. I think the Judge read a list to you. It could also be anything that the Defense offers. So, things like the Defendant's childhood or background or relationship with his family. Does that sound fair to you?
JUROR: Yes, ma'am.
MS. KUCHAR: Are those things that you would give meaningful consideration to?
JUROR: Yes, ma'am.
MS. KUCHAR: Okay. And also the Judge explained to you aggravating factors and those need to be proven by the State beyond a reasonable doubt and you all, all of the jurors will have to agree unanimously that they exist before they can be considered. Does that make sense?
JUROR: Yes, ma'am.
MS. KUCHAR: Okay. And mitigating factors are different because you don't need be unanimous and there is no standard of proof. Does that make sense?
JUROR: Yes, ma'am.
MS. KUCHAR: So one Juror could see something like the Defendant had a great relationship with his father and say, I decide to give the weight of life. And the second Juror might not agree with that but that is totally fine, choosing your own mitigation, finding your own mitigation is perfectly valid for a Juror. Does that make sense to you?
JUROR: Yes, ma'am.
MS. KUCHAR: Okay. And likewise a Juror can have no reason at all for choosing life. Death is never automatic in any case, not even in the worst case. So a Juror might not be able to explain why she has come to the decision that life is the appropriate sentence. But she can still choose life. Is that something that you could respect?
JUROR: Yes, ma'am.
MS. KUCHAR: And you wouldn't expect for that person to give you an explanation or a standup for their position if that is their own moral decision that they come to?
JUROR: No, ma'am.
MS. KUCHAR: And would you also, once you have to come to your unique moral determination as to what the appropriate punishment would be, would you be able to stand up for yourself?
JUROR: Yes, ma'am.
MS. KUCHAR: Okay. You wouldn't allow yourself to be bullied out of that position?
JUROR: No, ma'am.
MS. KUCHAR: And if you saw someone else, even if they disagreed with you being bullied would you be able to address that?
JUROR: Yes, ma'am.
MS. KUCHAR: Would you be willing to write a note to the Bailiff saying, Judge, I think that we have gone beyond civil discourse and someone is being bullied?
JUROR: Yes, ma'am.
MS. KUCHAR: Thank you so much. Give me one moment. I don't have anything further, thank you so much.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Ms. Brown.
JUROR: Good afternoon.
SUZANNE MAYES: I am Suzanne Mayes, I am one of the Prosecutor's in this case on behalf of the State. Shouldn't take very long, just a couple of questions to follow-up. One of the things that you were just asked a few moments ago was whether you had thought much about the death penalty before coming in here. And you said, not really. But I wrote down that you said I have done some soul searching over the weekend. To a certain extent it is like being pro-choice, I wouldn't personally make that decision but it is there under the law. When you said I wouldn't personally make that decision, what did you mean by that?
JUROR: I wouldn't personally have that abortion but I will defend another woman's right to have that abortion because that is granted under the law.
SUZANNE MAYES: Okay. I just needed to clarify that the distinction was regarding reproductive rights and not the death penalty itself.
JUROR: Right, yes.
SUZANNE MAYES: Okay. So where the death penalty is concerned would you be able to personally make that decision?
JUROR: Yes, ma'am.
SUZANNE MAYES: If the facts were there to support it after considering both the aggravating circumstances and the mitigating circumstances?
JUROR: Yes, ma'am.
SUZANNE MAYES: And in so doing, the Judge mentioned this earlier but just wanted to give you a little more detail about it. If at the close of the second phase of the trial, it gets to that point, the jury unanimously decides that the death verdict is the decision on a sentence, each individual Juror would then sign that form acknowledging that that is in fact their verdict, to render a death sentence. Could you sign your name to that?
JUROR: Yes, ma'am.
SUZANNE MAYES: You could personally make that decision?
JUROR: Yes, ma'am.
SUZANNE MAYES: Nothing further.
THE COURT: Anything additional?
MS. KUCHAR: Nothing further.
THE COURT: Anything we need to put on the record?
MS. KUCHAR: No, Your Honor.
THE COURT: From the State?
SUZANNE MAYES: Nothing from the State, Your Honor.
THE COURT: Ms. Brown, you are Juror 56. Based upon your answer you are found as a qualified Juror.
JUROR: Yes, sir.
THE COURT: And what that means, you are going to be identified as a qualified Juror on the website. You will look on the website tomorrow evening and determine whether or not I need you to come back in the next day, the next day or the next day. It may say check back the next day. Until it says please come in some date and time, then come in, it will probably be in this courtroom. That is what I want you to do. Until that time and then, if you are selected as a Juror, all through the trial, do not allow anyone to communicate with you about the case, do not discuss the case with anybody. Do not do any independent research, do not peruse the publicity, social or public media where attention this case is given. I have no control, the testimony, facts, whatever it is that is out there, not in the courtroom, it is not under oath, not under the scrutiny of a court record, it is what it is. And who knows what it is. I don't so I want you to make your decision on this case under oath, be fair and impartial to both sides while considering the testimony, evidence, the Court's instructions from within a court record. Can you do that?
JUROR: Yes, sir.
THE COURT: I will ask you that again when you all come back. So maintain your oath and see you when you get back.
JUROR: Yes, sir.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Folks, six out of the eight want to stay and get it done tonight. That is what we are going to do, we will roll two in the morning and add those to the eight tomorrow. The order of the random draw stays the same. I don't know which ones are staying, do you have the numbers.
COURT CLERK: Yes, sir. The two I let go was 308 and 117.
THE COURT: Subject to that we will figure out who is coming in first and y'all figure that out. We will break before we bring them in, why don't we bring them in here and then give them a break because they will have to study, bring them all in. (Whereupon, Juror 255, Laurie Long; Juror 77, Debora Carter; Juror 430, Patricia Teal; Juror 147, Patricia Fowler; Juror 288, Tameka Merritt; Juror 236, Andrew Kirkwood entered the courtroom.)
THE COURT: Thank you for going ahead and get this done tonight. I much appreciate your willingness to do so. I apologize for the delay. Blame it on me, I blame it on the lawyers. Now, that is a joke, all of us in the courtroom, we will get in here and talk about some things. You will understand. We are talking opinions, personal feelings and sometimes they aren't yes or no answers. Okay. And then one answer may lead to another and that is fine because that is what I am looking for in this process are personal feelings and opinions that would allow you to be fair and impartial jurors or not. When you come back in I will ask you about your personal schedules, availabiity to serve as a Juror or not, describe some of the testimony you might receive, whether that would be a problem for you and then also the aspects of the criminal process. I will read you this and then put you back there and then bring you back in one at a time.
And you are going to study the witness list and a three types of jurors before you come in and that will be some of the first questions. I have read this to all of the other jurors, I like to state it to you, I am going to read it that way all panels get the same thing. 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 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 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 seek the death penalty.
Before and during a trial a person accused is presumed innocent of each of the elements of the crime to which he is charged. The State must prove those elements, each and every element of that crime charged to 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 a jury determines punishment. In a Capital case the trial is divided in two phases potentially. Phase one, guilt or innocence and if necessary, phase two, the punishment phase. In the first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused guilty of 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 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 the 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 required to consider any mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. Even if no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to life without parole sentence then a sentence of life without the possibility of parole will be imposed. In this case the State has indicted five counts of murder and has notified Mr. Jones that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity.
In this case you may hear testimony and evidence showing many different things. A wide variety of testimony may be presented to you in the trial and I will instruct you as to how to consider and evaluate that testimony, whether it be defined as evidence of aggravating factors, evidence of mitigation, which are defined as reasons to vote for a life sentence 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 all the evidence is presented I am not able to tell you the exact instruction of the law. You will be asked when you come back in, can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider the evidence, all the evidence, consistent with my instructions. Those are my preliminary instructions on the law procedure which is expected in a Capital case. Step back in the jury room and don't discuss the case. The cameras are off, pictures are not being taken, but don't discuss the case while I am calling you out here. Okay. See you back in a moment. Oh, I am sorry. I forgot to put y'all under oath. Y'all were under oath Monday. My first question to you is going to be, have you talked about the case with anybody since Monday. Stand as a group and place them under oath, Ms. Frick. (WHEREUPON, the jury was sworn at approximately 5:40 p.m.)
THE COURT: The first Juror that will be with the reading material, give you a couple of minutes. We will step out real quick and when you are ready we will have you back in here.
(Whereupon, a short break was taken.)
THE COURT: Are y'all ready to bring in 255. (Whereupon, Juror 255, Laurie Long entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Long, I want you to tell me your name and spell it into the microphone.
JUROR: Laurie Long. L-A-U-R-I-E; L-O-N-G.
THE COURT: Ms. Long, you took an oath Monday not to talk about the case. Have you talked about the case in any fashion?
JUROR: No, not other than telling my boss that I had an open ended date.
THE COURT: Okay. Fair enough. Anybody tried to ask you questions about the case?
JUROR: Yes.
THE COURT: What was your response about those inquires?
JUROR: I walked off.
THE COURT: That is a great response and that is what I want the response to continue to be. Now, there has been publicity, social media, private media, everything. I read those indictments to the whole jury pool Monday. That is information. Has any information that you have come across, whether publicity prior to Monday, publicity earlier last week, any time this week, any information that has been produced to you?
JUROR: No, sir.
THE COURT: Have you formed an opinion as to what happened in this case as a result of any of that?
JUROR: Quite possibly, yes.
THE COURT: The accusations--
JUROR: The accusations are there, our Deputies showed up and there are five children that are dead. Somebody has got to speak for the children.
THE COURT: Now, do you presume that the, Mr. Jones is not innocent right now, as the Constitution requires. Do you think you have already formed an opinion as to what happened?
JUROR: I don't know, I don't know enough about it.
THE COURT: Now, the law requires the State to prove the crime beyond a reasonable doubt and they have got to offer witnesses and testify to that sort of thing. Mr. Jones is presumed innocent, the presumption stays with him. You understand that?
JUROR: Yes, sir.
THE COURT: So part of your duty is, response as a Juror is to accept the instructions of the Court and the presumptions under the Constitution that everybody gets. So he is presumed innocent sitting right there. Now, did you, I will ask you about, you said five children, somebody has got to speak for them. The testimony about this case and in this trial will be, the subject matter involving the death of five children. It will be, represented by the lawyers to me, I have not heard all the testimony, I don't know much of it. I am going to hear the testimony and evidence just like the jury. I am told it is harsh, it is graphic, unpleasant and tough. Those are some of the words I have heard used by the lawyers that reviewed most of these in the courtroom. The subject matter that has been described as tough, unpleasant. Can you consider that type of testimony and evidence, photographs, what have you, and consider this case, be fair and impartial to both sides in light of the fact that it is going to be very unpleasant, graphic testimony involving those, that type of subject matter. Can you do that?
JUROR: I am not sure.
THE COURT: You are not sure. And see, that is kind of the problem. I can't show it to you ahead of time and go, Ma'am, can you handle that.
JUROR: Right.
THE COURT: If you don't know you don't know because you haven't seen it. I want you, I am going to represent to you, suggest it is going to be tough. That being the case can you be fair and impartial to both sides and consider very difficult and unpleasant testimony or would that be too much for you?
JUROR: It would be all right, I could do it.
THE COURT: You could it?
JUROR: I can do it.
THE COURT: All right. I gave you a preliminary instruction on the law just then. Kind of give you a systematic approach. The Capital case is a two phase, guilt or innocence, punishment. In the guilt phase the State has got to prove the case. I gave you a list of three types of potential jurors in cases that are involving the death penalty. This summary suggests, you can take a look at it. This summary suggests, it is the same one you read, the summary presupposes that the guilty verdict has already been found. Then the State is required in the sentencing phase to convince you beyond a reasonable doubt the aggravating factor and the jury considers mitigating factors. Can you describe yourself, find yourself in any one of those three types of jurors right now as you sit, presuming a conviction on the murder?
JUROR: Number one.
THE COURT: Number one. Is that where you find yourself?
JUROR: Yes.
THE COURT: And that is kind of in light of what you said earlier is there is five children.
JUROR: Right.
THE COURT: I understand. And you are pretty firm on one?
JUROR: Yes.
THE COURT: That is what you think the appropriate punishment is?
JUROR: Yes, sir.
THE COURT: Very well. Ma'am, I am going to excuse you from serving on the case. Thank you so very much and thank you for your candor.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Number 77, are y'all ready?
BOYD YOUNG: Yes, sir. (Whereupon, Juror 77, Debora Carter entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing?
JUROR: Fine.
THE COURT: Ms. Carter, good afternoon and thank you for being patient.
JUROR: No problem.
THE COURT: I want you to spell your first name and last for Ms. Holston and to make certain the microphone is picking you up.
JUROR: Debora, D-E-B-O-R-A; Carter, C-A-R-T-E-R.
THE COURT: Ms. Carter, I gave you instructions and an oath Monday to not talk about the case. Have you talked about the case to anybody whatsoever since Monday and receiving the oath?
JUROR: No, I haven't.
THE COURT: Has anybody tried to talk to you about the case since Monday?
JUROR: No, they haven't.
THE COURT: Okay. I gave you some facts, allegations on the indictments from the State they made to Mr. Jones to which he plead not guilty. Those indictments contain facts. There has been publicity about this case several years ago, last several months and the weekend prior to Monday as well as since. I ask you this question, the information you have gotten, I don't care where it came from, whether before the oath, since my reading the indictments to you, where ever it has come from, has any of that information caused you to form an opinion as about what happened in this case? You can't answer wrong, okay.
JUROR: Right.
THE COURT: Not a wrong answer, you are not going to get in trouble no matter your answer. I need your honest opinion, your honest view. Okay.
JUROR: Well, when you first hear of something like that on the news then your first reaction is your opinion at the time. My opinion is how could someone do that.
THE COURT: So do you believe that Mr. Jones, you understand that Mr. Jones under the Constitution is presumed innocent. But based upon the facts you have already heard from the news way back several years ago, the allegations that I read off the indictments, do you have an opinion now that he is already been established as committing those crimes?
JUROR: Explain that again, please.
THE COURT: I want to know if you have formed an opinion. Do you think he is guilty already or not?
JUROR: Do I think he is guilty already?
THE COURT: Yes.
JUROR: Yes.
THE COURT: Okay. And that presupposes the next question. So he is already guilty then it is going to be difficult for you to go back and revisit the facts and circumstances that may have lead to it happening? You may get to hear why but you have already believed he would be guilty?
JUROR: Even though I believe he is guilty now I think I could listen to more facts and, you know, consider those things.
THE COURT: Now, the media reports you heard was several years ago when it first happened?
JUROR: Yes.
THE COURT: Did you hear any news reports here recently?
JUROR: I have not watched the news since I left last Monday.
THE COURT: Okay. I mean last weekend, the weekend before you came in?
JUROR: I didn't hear anything prior to that.
THE COURT: You have already formed an opinion as to his guilt? Is that right, I think you have told me that.
JUROR: I did say that.
THE COURT: All right.
THE COURT: I think that is going to be a tough spot to put her in. I am not going to find her qualified. So 77 is not qualified.
THE COURT: Ma'am, you didn't do anything wrong. I couldn't, you did exactly what I asked and you were candid with me so thank you very much.
JUROR: All right, you are welcome. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Number 430. (Whereupon, Juror 430, Patricia Teal entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Teal, how are you doing?
JUROR: I am good.
THE COURT: Wasn't you sitting on my far left when I was talking to y'all?
JUROR: Yes.
THE COURT: Now, I told you I ask the same questions. You are under oath. And will you spell your first and last name to make certain Ms. Holston is picking up the microphone and your voice.
JUROR: Okay. P-A-T-R-I-C-I-A, T-E-A-L.
THE COURT: Ms. Teal, I asked you not to talk about the case on Monday. Since that time have you talked about the case with anybody?
JUROR: Yes.
THE COURT: All right. Who would that be?
JUROR: When we were in there before we were waiting.
THE COURT: Before I brought you in and told you the instructions?
JUROR: Yes.
THE COURT: Had you talked with the other jurors?
JUROR: A little bit, yes.
THE COURT: And I don't think, I didn't tell you that again today. But what was the nature of those conversations?
JUROR: Just what, that we weren't supposed to talk about it, you know, watch TV, watch anything on the news. We were talking about how hard that was to not watch TV and the news.
THE COURT: And so the nature basically what was going on happened in here, when you were getting the follow-up questioning in here?
JUROR: Yes.
THE COURT: Now, there has been a lot of publicity on the television since Monday, prior to Monday, several years ago. And in fact, I told you some of the facts that are being alleged by the State against Mr. Jones to which he has plead not guilty, he is presumed innocent. Any facts whatsoever, whether you got conversations here in the jury room, from the television at any time, from the internet, where ever, I don't care, I don't care where it came from, even from me. Have any of those facts that you come across 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: You understand that Mr. Jones is presumed innocent of all of these charges as he sits right now here in court?
JUROR: Yes, I do.
THE COURT: I told you also, I want to know about your personal schedule. If you are selected as a Juror it may start early next week, commitment may be two to three weeks. You got anything work wise, personal wise, vacation wise that would be impacted if you were selected as a Juror?
JUROR: Well, I am a personalized manager at my job. So I manage other people at my office, they might could do without me. Other than that I am probably okay with work. But I have vacation planned for Memorial weekend.
THE COURT: Okay. You are going to be gone that whole weekend?
JUROR: Yes.
THE COURT: Any additional days other than Monday?
JUROR: Thursday and Friday.
THE COURT: Thursday and Friday before?
JUROR: Yes.
THE COURT: Okay. I don't want to impact vacations. Some of them are prepaid. Are you going to the mountains or beach?
JUROR: We are going to James Island to camp.
THE COURT: You are going with family?
JUROR: No, well, some of our family might come there. But it is just me and my husband.
THE COURT: Thursday, Friday and Monday?
JUROR: Thursday, Friday and Monday.
THE COURT: I don't want to impact that vacation. I am going to excuse you for that reason. That is why I ask the question. Thank you for your patience today.
JUROR: Thank you.
THE COURT: She is excused. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 147. (Whereupon, Juror 147, Patricia Fowler entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Fowler, I want you to say and spell your name so Ms. Holston can determine how you spell your name and also see if the microphone is picking you up sufficiently enough.
JUROR: Okay. Patricia Fowler, P-A-T-R-I-C-I-A, F-O-W-L-E-R.
THE COURT: Ms. Fowler, I told y'all in here the first question that I would ask, you were under oath to not talk about the case since Monday. Has anybody tried to talk to you about the case?
JUROR: No, sir.
THE COURT: Have you talked about the case with anybody?
JUROR: No, sir.
THE COURT: Now, was there any conversation going on back in the jury room affecting or basically in general terms about what was going to happen out here once y'all came out here?
JUROR: No, sir.
THE COURT: Okay. The attention, the media attention, publicity in this case has gotten, it has been a lot. I read to you the indictments, the allegations the State is making against Mr. Jones in open court. You heard that. The media has been reporting on the case, social media has been commenting on the case. There has been news media reports way before Monday when you came into court from all sorts of, different sources. My question to you is, no matter the source, if you come across information, heard about the case in any fashion including my comments. Has any of that information you have come across cause you to form an opinion about this case and what happened?
JUROR: I haven't heard much about the case to make a judgment yet.
THE COURT: But you have heard a little bit about it?
JUROR: Yes, sir.
THE COURT: But you have not formed an opinion?
JUROR: No, sir. I heard more about it from 2014.
THE COURT: Okay, back when it happened?
JUROR: Yes.
THE COURT: Has that impacted, you still haven't made an opinion, formed an opinion even about the news reports from 2014?
JUROR: I have not made a complete decision on it.
THE COURT: Okay. So whatever decision you have made, a partial decision, can you describe that for me?
JUROR: Well, the only way I can describe it is that it is a very sad situation.
THE COURT: Okay. That is a fair assessment. You understand that five children are deceased and it is very sad?
JUROR: Yes.
THE COURT: All right. I am going on to the next question. The subject matter in this case is going to be testimony involving the deaths of children. That is what is going to be presented to the jury and to the Court. I have not seen all the facts, have heard a little bit of it, preliminary but not much. The lawyers, most of these lawyers in here, we have discussed, it is going to be impactful testimony describing these children. Harsh, graphic, difficult, unpleasant are some of the words I have heard from the lawyers, I am using their words. Testimony of that type subject matter, difficult testimony, unpleasant testimony. Would that create an issue for you knowing that is what we are going to receive in this trial. Can you see testimony like that, evaluate it and be fair and impartial or would that testimony be kind of difficult and create an issue for you not to be able to evaluate fairly?
JUROR: I think it would be an issue with me being able to sleep at night.
THE COURT: Okay. Do you think hearing the testimony because of the graphic as the lawyers have described, would that create a problem for you that you couldn't be fair and impartial?
JUROR: Well, I could be fair and impartial but I don't know if I can handle it emotionally when I got home to sleep at night.
THE COURT: Fair statement. If it did that that would create a very awkward position, difficult for you for not sleeping well and having to come in and consider testimony and evidence is difficult yet again.
JUROR: Yes.
THE COURT: All of that considered, your self-description is, there is no wrong answers in here. I am looking for candor. If you believe it would impact your sleep at night and probably emotionally impact you negatively do you think you can be fair and impartial or not? Your voice causes me enough to know that you are concerned.
JUROR: I am concerned.
THE COURT: And it is not, that is why I have got you in here, okay.
JUROR: I am concerned because I believe that, you know, I am one that believes in the death penalty if it is warranted. But I also believe there are situations where, there are other reasons to it. I mean, if that makes sense.
THE COURT: Now, the difficult testimony, let me get back to that. Do you think and this is just your gut feeling right now, harsh, difficult testimony, is that going to be an unfair position to put you in having to judge this case?
JUROR: Yes, sir.
THE COURT: Very well. I am going to excuse you also. 147 is excused. Thank you.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 288.
EXAMINATION
By The Court:
THE COURT: Ms. Merritt, good afternoon and thank you for your patience. I want you to say and spell your name for Ms. Holston so she can determine whether the microphone is picking you up enough and she gets to spell your name.
JUROR: Tameka Merritt. T-A-M-E-K-A, M-E-R-R-I-T-T.
THE COURT: Ms. Merritt, I told you my first question was going to be, you took an oath Monday to not talk about the case. So the last eight days have you talked about the case with anybody?
JUROR: No, sir.
THE COURT: Has anybody tried to talk with you about the case?
JUROR: No, sir.
THE COURT: Now, I heard there was some conversations in the jury room about the procedures going on here today. Did you hear any of that earlier?
JUROR: No, sir.
THE COURT: Okay. Now, I asked you about, I told you about your work schedule, personal schedule, vacation, whatnot, what have you. If you are selected as a Juror and you are impaneled and put on the jury, right now I am determining whether you are qualified or eligible to be put on the panel. Work, vacation, personal reasons, your calendar is already full. Starting next week, the week following and the last week of May, what have you got on your calendar that would be impacted if you were put on the jury?
JUROR: Trying to get childcare together.
THE COURT: How many children have you got?
JUROR: Three.
THE COURT: How old are they?
JUROR: Four, ten and twelve.
THE COURT: And when do they get out of school?
JUROR: For the summer?
THE COURT: Yes.
JUROR: June the 1st, well May the 31st.
THE COURT: Do you get them?
JUROR: Yes, sir.
THE COURT: You pick them up?
JUROR: Yes, sir.
THE COURT: You work outside the home?
JUROR: Yes, sir.
THE COURT: You get them yourself mostly after school?
JUROR: Yes, sir. I work 6:00 to 2:00 at Lexington Extended Care.
THE COURT: So that you can go get your children?
JUROR: Yes, sir.
THE COURT: You can claim an exception having children under seven, that you are the primary caregiver for and not serve on a jury. You are excused.
JUROR: Okay.
THE COURT: Thank you, Ma'am.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: The last one is 236. (Whereupon, Juror 236, Andrew Kirkwood entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: 236, tell me your name and spell it for Ms. Holston.
JUROR: Andrew Kirkwood. A-N-D-R-E-W, K-I-R-K-W-O-O-D.
THE COURT: Mr. Kirkwood, you are speaking good in the microphone. Some people we have to work with. I told you in my preliminary instructions I was going to ask you about communication about the case. Monday when I brought the whole group together, I ask from this time forward don't talk about the case in any fashion. Have you talked with anyone about the case?
JUROR: I haven't talked about the case. I have heard people mention it but they don't really have any details on it or anything.
THE COURT: Has anybody asked you any questions about it?
JUROR: They have tried to but I haven't--
THE COURT: You have been stopping the conversations and told them you can't talk about it?
JUROR: Yes, yes.
THE COURT: That is what is going on?
JUROR: Yes.
THE COURT: There has been publicity, a lot out there. Four years ago and afterwards, since then, off and on, it has been in the media. Here recently a lot in the media. Monday I read to you the indictments, the allegations the State has made against Mr. Jones. Any information whatsoever from any source whatsoever, has that caused you to create or form an opinion as to what happened in this case?
JUROR: I haven't really heard anything besides--
THE COURT: What have you heard?
JUROR: Mainly just people asking me or telling me that must have been where I went for jury duty was for this case and I told them I couldn't confirm.
THE COURT: Fair enough. You have not formed an opinion in this case as to what happened?
JUROR: I don't think so.
THE COURT: I want to make sure. The other jurors, I was talking about their age, the same age. Four in a row, all of y'all are the same age, amazing. Mr. Kirkwood, let me ask you this. Your schedule coming up, you are put on the jury, qualify the jury and then selected, likely the trial will start over the next week. So what does your calendar look like starting next week for about three weeks. How am I going to impact your personal schedule, work, vacation, otherwise?
JUROR: I do have another court hearing for a separation type thing on the 23rd of this month.
THE COURT: On the 23rd. Do you know what time that is?
JUROR: No, I don't, I don't know what time it is.
THE COURT: Is it here in this Court House, is it in Lexington County?
JUROR: Yes.
THE COURT: It will be in this Court House?
JUROR: Okay.
THE COURT: And that is a domestic situation that you have with your spouse?
JUROR: Right.
THE COURT: If we find out when that is, either have the lawyer reschedule it at my request, let me talk to the lawyers or let me talk to the Family Court Judge and suggest they reschedule it, manage it. Now, I don't really care about your case, don't want to know about it. Have y'all already been to court one time, had the temporary ground rules laid out?
JUROR: Temporary hearing.
THE COURT: Okay. That might need to get done and perhaps, if that needs to be done, if you are qualified we will see if it can be coordinated to get done, are you represented?
JUROR: Yes.
THE COURT: And is she?
JUROR: Not yet.
THE COURT: Well, we can probably coordinate if. If you are qualified as a Juror I will see what I can do to help accommodate and make that hearing go forward even if we have to break, a temporary hearing shouldn't last very long. It is just that it is temporary ground rules. I don't want to give you any advice but I think that shouldn't be a problem with managing that hearing. Okay.
JUROR: Okay.
THE COURT: Other than that no other thing on the schedule?
JUROR: Just work.
THE COURT: Work. If you got selected, was qualified, you could serve?
JUROR: Correct.
THE COURT: Now, I gave you preliminary instruction on a Capital case, two phase process. How it works, how it goes together. The first phase is guilt or innocence, the second phase is punishment. The three types of jurors summary I gave you presupposes that guilt is found. Go into phase two, aggravation, the State has got to find it, proof beyond a reasonable doubt and also the jurors consider mitigating facts. Can you identify yourself, did you understand that sheet?
JUROR: Yes, I did. I believe I would be a number three.
THE COURT: Number three. And to you what does that mean?
JUROR: It is not necessarily a definite death penalty, it could sway the, depending on all the evidence.
THE COURT: So you want to hear everything?
JUROR: Yes.
THE COURT: Okay. Let's ask you a few more questions then. Now, if the jury, did you look at the potential witness list?
JUROR: Yes, I did.
THE COURT: Do you know anybody on there?
JUROR: Not that I know of.
THE COURT: Okay. And if you did, if somebody came in, wait a minute, I know his face and who he is.
JUROR: I am not good with names.
THE COURT: Okay, fair enough. If you are selected as a Juror, you would be hearing the case, phase one would go first. The State has got to prove its case beyond a reasonable doubt and Mr. Jones is presumed innocent right now. Phase one, the State has got to prove the murder. I defined it for you, the proof of killing, malice aforethought. The State presents evidence to that and trying to convince a jury unanimously of guilt beyond a reasonable doubt. They have got to prove all the elements beyond a reasonable doubt. Mr. Jones is tendering a plea claiming a defense to that. There are other defenses that are potentially available and depending on how the testimony goes, I have not heard the testimony yet, so there could be other evidence to support another defense, maybe, maybe not.
All the defenses, potentially available, this does not mean they will be shown to you, it is potentially available depending on the testimony, some of these will not be available because the facts won't support them, the jury trying to decide whether it happened or not. Potential defenses, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. The testimony will be presented from both sides if those defenses are appropriate for the jury to consider. I will instruct you on the aspects of that law. Can you give meaningful consideration to the State's responsibility to prove the murder beyond a reasonable doubt, consider that testimony but also consider the Defenses and aspects of my instructions on any defenses which may be shown through the evidence available to Mr. Jones and act as a fair and impartial Juror in considering all of that testimony and evidence, consider with respect to my instructions and be fair and impartial to both, the State and the Defense?
JUROR: I don't know that I totally can, I feel like a child is innocent. But other than that I think I can, kind of sway or lay with the death penalty.
THE COURT: Some defenses like, entrapment, duress, alibi, those aren't going to come into play. I don't want to comment on too much of what the case will present. But if something supports the consideration of the Defense I would instruct you on that and you would evaluate that testimony. You said that children are innocent. Yes, they are young and innocent, they are the victims. The State will show that. Mr. Jones is presumed innocent though of doing any of this but he has entered a plea of not guilty by reason of insanity. Do you understand that?
JUROR: Yes.
THE COURT: I will present, because of that plea, four forms of the verdict. Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty all together. I will instruct the jury on those respective verdict forms, potential verdicts could be reached. The State has got the burden of proving guilt beyond a reasonable doubt. Can you consider the instructions of the Court, the State's burden of proof and all potential defenses that will be submitted by the Court to the jury, can you give reasonable meaningful consideration to all of those defense?
JUROR: Honestly, I can give consideration to three of those four, I am not sure about one of those four.
THE COURT: Which one?
JUROR: The total innocence.
THE COURT: Okay. And that is all right because one of the defenses may involve the presentation of that. The lawyers may follow-up with that question later. But you think something happened, you are not convinced, but you understand he is presumed innocent right now?
JUROR: Yes. I haven't really heard a lot about the case and I, so I don't have a total thought on it yes, I guess.
THE COURT: But you understand he is presumed innocent by our Constitution?
JUROR: Yes.
THE COURT: Can you accept that. Because part of the thing, even if you disagree with the law you have got to accept it as the Court gives it because I am giving the law of South Carolina as I understand it as a Judge. I am not making it up and it is not my opinion. I instruct the law as I understand it to be.
JUROR: I think I can.
THE COURT: One of the oaths of jurors is, I will accept the oath as you instruct it even if I disagree with it, I have accepted that disagreement and misunderstanding aside and take it as you are giving it, Judge. Can you do that?
JUROR: Yes, I can do that.
THE COURT: Can you accept an oath that presumes Mr. Jones to be innocent right now?
JUROR: From everything I know, yes. I haven't seen all of the evidence.
THE COURT: And I am asking you questions about considering the case yet, it is presumed no evidence right now. But the State is going to present on evidence, they have got that responsibility of proving the case up front. The Defense presents their side kind of after the State goes. That is how the process goes. The State has got the burden, they go first. They will call witnesses first.
JUROR: Okay.
THE COURT: Now, considering those four defenses, can you give reasonable consideration to all four of them?
JUROR: I believe I can.
THE COURT: If the State fails to meet its burden or the jury decides that the Defense has proven not guilty by reason of insanity the case would end there if either of those two happen. If the State meets it burden of proof, proves the guilt beyond a reasonable doubt of the murder then phase two commences. In phase two several things are presented to jurors. First and foremost the State has got to prove an aggravating factor. I am going to name off five and the State is going to prove one of these five. Any one of these could be an aggravating factor. Murder of policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State is under the responsibility of the burden of proof to prove one of those aggravating factors beyond a reasonable doubt before they can ask for the death penalty. They will do that in the sentencing phase, attempt to make that proof to you as a Juror if you are so selected. The Defense presents consideration of mitigating factors.
Those are reasons to give life rather than death. They can be any reasons. But there is some statutory reasons that they can kind of focus in on and they are allowed. I am going to tell you those. 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 were 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 as well as the Defense may present on his growing up, having a hard childhood, coming from a broken home, they can present all sorts of testimony to that end that jurors can use as mitigating factors to assign a reason to give the life sentence. Now, some of these statutory ones wouldn't apply, under the age of 18, is not going to apply. So they can't present on that, they can present on other ones that may be appropriate. In the sentencing phase the State has got to prove the aggravating factor beyond a reasonable doubt, the Defense presents testimony regarding mitigating factors, they don't have to prove for a jury to consider them. Can you give meaningful consideration to all testimony and evidence, whether it be the State's aggravating factors, knowing their burden of proof is beyond a reasonable doubt or whether it be mitigating testimony, mitigating factors the Defense shows you, showing reasons to give a life sentence. Can you give meaningful consideration to all of that testimony and be both fair and impartial to both the State and Mr. Jones?
JUROR: I think the only one I could give consideration to is the minor involvements, the other ones don't really--
THE COURT: Now, I am going to suggest this to you. You must know more facts than you are letting on.
JUROR: I am psychic.
THE COURT: Well, that is not one of them. Some of the facts I have already told you, the allegations of murder, children, kind of know those are allegations. The State has got to prove it. All right. I ask that question again, can you consider all of those factors, they have got to present testimony that can follow one of these categories or testimony about his childhood, struggles in life, anything they wish to present they believe jurors can consider mitigating facts. Jurors are required to consider those mitigating facts. Are you going to be able to accept an oath to consider mitigating factors presented by the Defense?
JUROR: I believe I can consider, I can't guarantee my decision.
THE COURT: Okay. You understand that in the sentencing phase there are only two potential verdicts. Death or life.
JUROR: Yes.
THE COURT: No middle ground, no other options. You have got to consider that, the State has got to prove the aggravating factor. The jury has to consider mitigating factors that are presented out there. Do you have any religious, moral or personal belief that you could not impose the death penalty?
JUROR: I don't think so.
THE COURT: Do you have any religious, moral or personal belief that you could not impose a life without parole sentence if the facts support it?
JUROR: If the facts support it I think I could.
THE COURT: And see, you don't have any facts so not knowing I am kind of asking you, are you still a type three?
JUROR: I think I am, yes.
THE COURT: Now, those are my questions. I am going to let the lawyers ask you some more questions and they can ask you more about your beliefs, candid, candor, honesty, no wrong answers.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good evening, Mr. Kirkwood.
JUROR: How are you doing.
BOYD YOUNG: Doing all right. I appreciate you bearing with us and sticking this out this evening. Mr. Kirkwood, I notice your son is a police officer over in Gaston, is that right?
JUROR: He has been, he is not presently.
BOYD YOUNG: Okay. And I just need you to tell me, some people say that when you have that close relationship with a police officer and a police officer is testifying they may have trouble fairly judging the credibility of a police officer because of the nature of their work. Does that make sense to you?
JUROR: I think so.
BOYD YOUNG: They, sort of police officers have more credibility and believability just based on the nature of being a police officer?
JUROR: Okay.
BOYD YOUNG: Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Is that a view that you hold?
JUROR: I think everybody wants to hold that belief, I don't know if I one-hundred percent hold that belief.
BOYD YOUNG: You think you could fairly judge the credibility of police officers even though they are law enforcement officials?
JUROR: I sure hope I can but I, yes.
BOYD YOUNG: Okay. I have to ask you about some personal stuff and I understand that you are going through a separation and I don't mean to pry on that and if you need to be heard sort of off the record with the Judge we can do that. Okay?
JUROR: Okay.
BOYD YOUNG: If a case involves sort of domestic allegations and child custody allegations, is that type of case going to be something that you can sit as a fair Juror?
JUROR: Yes. I don't have any child custody allegations or anything involving this.
BOYD YOUNG: Okay. Just the divorce?
JUROR: Yes.
BOYD YOUNG: Okay. And that is not going to affect you in a case involving--
JUROR: No.
BOYD YOUNG: Mr. Kirkwood, can you tell me sort of your general philosophy about the death penalty?
JUROR: I consider myself a Christian by faith. So, I mean, death generally is wrong but I think there is an eye for an eye, and about everything. So I think the death penalty is justified in certain cases.
BOYD YOUNG: What do you mean, in a case of intentional deliberate murder with malice aforethought. Do you understand what I am talking about, what the Judge told you what murder is in South Carolina?
JUROR: Something that is not any self-defense or--
BOYD YOUNG: Not an accident, not self-defense?
JUROR: Right.
BOYD YOUNG: Any evidence you heard about mental illness you rejected that, they knew the difference between right and wrong, chose to kill and I believe you said children were particularly innocent?
JUROR: Yes.
BOYD YOUNG: And so in a case, some people say that in a case where the murder of multiple children, for me that is sort of automatically the death penalty.
JUROR: Yes, without extenuating circumstances, again, I don't know all the in's and out's. But yes, I would say, yes.
BOYD YOUNG: And sort of these extenuating circumstances you are talking about, when we are talking about extenuating circumstances, you understand it is already been decided beyond a reasonable doubt that they did it. Right, you are guilty, guilty of the murder. Are you with me on that?
JUROR: Okay.
BOYD YOUNG: And it wasn't heat of passion or self-defense or an accident, not one of those extenuating circumstances.
JUROR: I say the death penalty was, is something that will be--
BOYD YOUNG: Would that always be the death penalty for you?
JUROR: I believe it would, I don't know what could sway me a different direction.
BOYD YOUNG: And if I offered you, like say somebody had a hard childhood or a rough upbringing, that is not going to sway you off?
JUROR: I don't think so.
BOYD YOUNG: And I believe, the Court went through some mitigating factors with you, do you recall the eight that he read off?
JUROR: Yes, vaguely, yes.
BOYD YOUNG: Well, I think your response to him was, well, of those the only one that would be important to me would be if--
JUROR: Minor involvement.
BOYD YOUNG: If it was a minor participant in the crime, in the murders?
JUROR: Yes. Minor being not of age but of an involvement, I guess.
BOYD YOUNG: Sure, sure. Like a codefendant who was in the get-a-way car?
JUROR: Yes.
BOYD YOUNG: That is what you are talking about, like minor involvement?
JUROR: Yes.
BOYD YOUNG: But if they did the killing, that is not minor involvement, right?
JUROR: No.
BOYD YOUNG: Okay. So other than that, sort of for you it is the death penalty?
JUROR: Yes, pretty much so.
BOYD YOUNG: Thank you, that is all the questions that I have.
THE COURT: Any questions, Solicitor?
RICK HUBBARD: No, sir.
THE COURT: All right, Mr. Kirkwood, thank you for coming, I am going to excuse you from service at this time. Thank you very much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: What time did we start that one, 6:00 o'clock?
BOYD YOUNG: I think about a quarter till, 5:30.
THE COURT: I think it was an excellent idea to try to get them done. I am very proud of them staying because we did accomplish that. See y'all, the group of two wants to come in early. They said they would be here at 8:00. We will start at 8:00. See y'all tomorrow. (Whereupon, the trial will resume the next morning at 8:00 a.m.)