1.Jury Selection
3,361 linesMay 8, 2019.
THE COURT: Are we ready to go?
RICK HUBBARD: Yes, sir.
BOYD YOUNG: Yes, sir.
THE COURT: Let's bring the two in first. (Whereupon, 117, Jeremy Davis; 308, Shanna Nelson entered the courtroom.)
THE COURT: All right, the two of y'all, we are going to manage y'all just like we have done everybody else. Here is the way it works. I am going to read this to you in a moment and when you come back in I need to know about your work schedule, vacation schedule, if any conflicts exist there. And then the witness list y'all were looking over, do you know anybody on the witness list. There is another sheet you need to read too, that will be some of the questions. Anyway, this is a summery or a preliminary instruction on the law and I have read to everybody. I will read to the two of y'all and then we will get you in here and hopefully it won't be prolonged too much. Thank you for being on time. I think the folks yesterday were being patient to wait. Madam Clerk, place them under oath.
(WHEREUPON, the two jurors were sworn at 8:06 a.m.)
THE COURT: You have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Judge Eugene Griffith, Jr. and I will be the presiding Judge. 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 seek the death penalty. Before and during a trial a person accused is presumed innocent of each of the elements of the crime for which he is charged. The State must prove each and every element of those crimes charged, crimes charged by a standard of proof called beyond a reasonable doubt. In most 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 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 into the second phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt then the jury considers aggravating and mitigating evidence in deciding the punishment, either a punishment of 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 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 the possibility of parole 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 this trial.
And 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. Mitigation is 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 law I will give but when I bring you back in one at a time I will ask you to accept an oath, to meaningfully consider all the testimony and all of the evidence, apply the law as I instruct it and consider all the evidence consistent with my instructions. Those are your preliminary instructions. Step out and I will have y'all right back in here and don't discuss the case while you are in the back. (Whereupon, the two jurors were excused from the courtroom.)
THE COURT: Bring the first one in. (Whereupon, Juror 117, Jeremy Davis entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Mr. Davis, I want you to say your name and spell it to make sure Ms. Holston and everyone can hear you.
JUROR: Jeremy Davis. J-E-R-E-M-Y, D-A-V-I-S.
THE COURT: Mr. Davis, I remind you you are under oath. I am going to ask you the same general questions I have asked every Juror, basically in the same order. Since Monday, last Monday, I placed the entire panel under oath to not discuss with anybody. Have you discussed the case with anybody since Monday?
JUROR: No, sir.
THE COURT: Has anybody tried to ask you questions about the case since Monday?
JUROR: Yes, sir.
THE COURT: And what were the nature of those questions?
JUROR: Just what I, my job knew I had jury duty.
THE COURT: Okay. Explain to them you had to report to court?
JUROR: Yes.
THE COURT: Discussion going any further than that?
JUROR: Not really, no.
THE COURT: Now, there has been information out there available, publicity about this case, news media, social media, all sorts of places, street corner, people know things. No matter where your information came from, even my reading of the indictments on Monday to the entire jury panel, also information to you. Any information you have received from any publicity, any source whatsoever including the Court, has any of that information that you have received thus far until this point right now caused you to form an opinion as to what you believe happened in this case?
JUROR: Yes.
THE COURT: Has it? What is your opinion right now what happened?
JUROR: I mean, if you kill five kids, man, there is really, insanity or not and then you flee, in my opinion I just can't form an honest opinion of other than guilty.
THE COURT: Okay. I am looking for candor, I am not looking for the answers you think I want, I want to hear your honest opinion.
JUROR: All right.
THE COURT: So you think Mr. Jones is guilty right now?
JUROR: Well, I mean I know all about the case from previous.
THE COURT: Before Monday you weren't prohibited from looking at the news media.
JUROR: No.
THE COURT: That is why I ask you the question. I don't care where you got the information. I want to know right now how do you feel. Do you think he is guilty?
JUROR: I mean, he said he was guilty.
THE COURT: If you could identify one of those three types of jurors, where would you follow?
JUROR: Probably number one.
THE COURT: Fair enough. Thank you for coming, you are free to go. I appreciate your patience with me yesterday.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We have got 308. (Whereupon, Juror 308, Shanna Nelson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Nelson, how are you?
JUROR: Good, how are you.
THE COURT: Very good. I want you to spell, say and spell your name so that Ms. Holston can see if she is picking you up good.
JUROR: Okay. Shanna Nelson. S-H-A-N-N-A, N-E-L-S-O-N.
THE COURT: Good morning, Ms. Nelson.
JUROR: Good morning.
THE COURT: I am asking the same questions to each Juror basically.
JUROR: Okay.
THE COURT: I will start out with the same ones. I am not starting out because I think you have done something. You are under oath, I want honest candid answers. I don't want the answer you think I am listening for, I want candor. Okay?
JUROR: Okay.
THE COURT: Because some of this is about your personal feelings and opinions, some of it is not, this one is not. Since Monday when I placed you under oath, I said don't talk about the case. Have you talked about the case with anyone?
JUROR: No.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: I mean, I have had people say, is it that case and I said, I can't talk about it.
THE COURT: That is an appropriate response. Now, over the last several years, since the incident occurred back in '14 through Monday, through this week, information, publicity has been out there. There is a lot of it. Some people saw it, some people didn't. I am going to ask you, I read the indictments to you in open court, that is information to you also. Those indictments are allegations made by the State against Mr. Jones. Has any of the information you have heard at this point right now this morning, anything, caused you to form an opinion as to what happened in this case?
JUROR: Yes.
THE COURT: What do you think happened?
JUROR: I don't remember the details. It gave me an opinion about him but I don't remember any of the details from when it first came out.
THE COURT: So you saw some media report before Monday?
JUROR: Yes, when it first happened my Mom told me about it. I never actually saw it so I don't remember any of the details or anything, I just remember thinking, well, it is messed up.
THE COURT: Okay. You thought the whole situation was messed up?
JUROR: Yes.
THE COURT: And do you still have that same opinion?
JUROR: Well, I don't know what happened, I don't remember the details from the media.
THE COURT: You understand part of the interactions, it is my job to instruct all jurors on the law. One of my instructions is Mr. Jones is accused by way of the indictments of committing five murders, he has plead not guilty, also not guilty by reason of insanity. He is presumed innocent until the State proves his case beyond a reasonable doubt. Do you understand that?
JUROR: Yes.
THE COURT: Could you follow that instruction if I so gave it?
JUROR: Yes.
THE COURT: I just gave it to you?
JUROR: Okay.
THE COURT: Now, how is your work schedule, home schedule, personal schedule starting next week to say the end of May, early June. What have you got out there that you have got to rearrange if you were so selected to serve?
JUROR: I have a seven-year-old son but I have people who could get him to and from school if need be. And then, I mean I have a full-time job but they are understanding.
THE COURT: Okay. So you could do it?
JUROR: Yes.
THE COURT: And it is inconvenient. And everybody who would be called upon to serve as a Juror would be inconvenienced by the fact that they are serving and not at home tending to their family, their job, those sort of things. Those don't count because of the civic duty of serving as jurors imposes on that and that is an inconvenience but it is one that sometimes has to be done. That is just a civic duty that some people have to do. So if called upon to serve you could do so?
JUROR: Yes.
THE COURT: Now, I gave you instructions just a few moments ago about kind of the criminal procedure and some of the criminal law, very brief description of what is kind of coming down the tracks on a Capital case. A Capital case is potentially two phases. The first phase is guilt or innocence. If guilt is proven beyond a reasonable doubt by the State you go into phase two. Then the State has got to prove an additional factor, aggravating factor. The Defense presents the mitigating factors. Jurors determine the punishment at that time. I gave you a sheet just like this one, I have it. Can you identify yourself if you were seated on the jury and if the guilt was proven, can you identify yourself as one of those potential jurors with the very slim fact you already have, you don't have, I don't want you to consider anything other than what you already have gotten.
JUROR: The type three.
THE COURT: And what does that mean to you?
JUROR: It means I would not decide the death penalty or life without parole without hearing everything. I don't want to make that kind of decision without everything.
THE COURT: Fair enough. So you are open to hearing things?
JUROR: Yes.
THE COURT: Including everything, the good and the bad?
JUROR: Yes.
THE COURT: Did you look over the witness list?
JUROR: Yes.
THE COURT: That is the potential witnesses. It is not necessarily the parties are going to call all of them but potentially they could be called. You have any connection or friendship with any of those potential witnesses?
JUROR: Yes. Dr. James Doer. I used to work up front at his office and now I am a nurse but not his location but that practice.
THE COURT: Is that the Palmetto Pediatric Practice?
JUROR: Yes.
THE COURT: Which office did you work in?
JUROR: I worked at the Lexington office up front through nursing school so mostly summer time. And then, now I work at the downtown location.
THE COURT: So aren't those doctors kind of generally kept at those respective offices.
JUROR: Yes.
THE COURT: My children were there, so there are certain offices out there at Dutch Square, in that area. They stay there and some out in the Northeast and there is some over in Lexington.
JUROR: Correct. The doctors don't really move other than weekends and holidays.
THE COURT: When they are on call?
JUROR: Yes.
THE COURT: Now, the fact that, Dr. Doer?
JUROR: Uh-huh, (In the affirmative).
THE COURT: The fact that he is a potential witness, would that create, do you still work for them?
JUROR: Not at his location but I do still work for the practice.
THE COURT: Over in another location?
JUROR: Yes.
THE COURT: The fact that he may be called to testify as a witness, would that create an issue for you being fair and impartial to both the State and the Defense?
JUROR: No.
THE COURT: Okay. You can do that?
JUROR: Yes.
THE COURT: That is the only witness you know?
JUROR: Yes.
THE COURT: Very well. All right. I want to go back to stage one and describe some additional factors on the phases. Phase one, phase one is guilt or innocence. Nothing is proven, presumed innocent, the State has made allegations, present that case. The State is going to present its case first. They have got the burden of proving the case beyond a reasonable doubt, described that to you over here. So they will go first calling their witnesses. Their burden of proof is beyond a reasonable doubt. I will explain and define that later. Defendants that are accused have certain defenses they can claim. There are numerous ones of them, I want to read all of them to you and then ask you can you accept instructions. Potential defenses to a criminal charge, a murder charge would be identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are all potential defenses. Now, I haven't heard the testimony yet. So if the testimony came in to support one of those defenses the lawyers can ask me, Judge, please instruct the jury since we have heard testimony a little bit about that aspect of the defense, would you please instruct on it. If it is not supported by any evidence then the instructions wouldn't come. Okay. So I kind of got to listen to see what evidence is coming in and if so I may give an instruction on that particular aspect at the end of the trial. Can you give meaningful consideration to any and all of those defenses which are supported by the evidence, consistent with my instructions on the law, still be fair to both the State and the Defense?
JUROR: Yes.
THE COURT: Okay. Now, one defense that we know by virtue of Mr. Jones' plea, not guilty by reason of insanity required that the jury have a verdict choice at the time of determining guilt or innocence. There are four choices, rather than traditional guilt or innocence the verdict will read this way. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty whatsoever. Four potential verdict forms. Understanding there will be four verdict forms the Court will give you instructions on how to evaluate and consider those four potential verdict forms. Can you consider the facts and testimony and evidence presented by the State knowing they have the burden of proving the case beyond a reasonable doubt but give meaningful consideration to my instructions from those potential verdicts. Could you find any one of those potential verdicts consistent with the facts and evidence presented at trial?
JUROR: Yes.
THE COURT: Okay. Any one of those potential verdict forms you would not give consideration to?
JUROR: No.
THE COURT: Okay. Now, if a not guilty verdict or a not guilty by reason of insanity is found by the jury the case ends, it stops right there. If the State proves its case beyond a reasonable doubt, the guilt is found on the murder the case goes to the sentencing phase. At that time the State is then required to prove a statutory aggravating factor. The statutes are over here, the blue books, provide aggravating factors, required to be proven by the State, to enable the State to ask for the death penalty sentence. Potential aggravators, murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State has got to prove one of those five aggravating factors beyond a reasonable doubt in order to request a jury impose a death sentence. Okay. That is in the sentencing side and they do it then. So during that portion of the case they have got to prove that beyond a reasonable doubt but also jurors consider mitigating factors or mitigating evidence.
And those are reasons to give life and not the death sentence. I am going to read you some statutory mitigators, some of them could be presented at trial, some of them may not, so may not be applicable but I will read them all to you and ask you if you can consider those. Mitigating circumstances include the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress and under the dominion, I am sorry, 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 mentality or age 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 murder. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators that the Defense can present on. There are also non-statutory mitigating factors such as his childhood, how he was raised up, did he come from a troubled home, broken home. Those kind of factors are other reasons that jurors can assign a reason for life without parole as opposed to the death penalty. During the sentencing phase can you be, act fair and impartial to both the State and the Defense, consider the State's burden of proving at least one of the statutory aggravating factors and also consider any and all mitigating testimony and evidence which you have been presented by the Defense. There is no responsibility to prove mitigating factors to any certain level, just can you consider mitigating factors which are presented and be a fair and impartial Juror in finding a punishment consistent with my instructions on the law. Can you do that?
JUROR: Yes.
THE COURT: Now, in the sentencing phase there are only two choices, life or death, nothing in between, no other options. If guilt is found the death penalty is not automatic. If it is phase two the State has got to prove the aggravating factor, the jury considers any and all mitigating factors presented. Then the jury decides life or death. Do you have any moral, religious or personal belief which would prevent you from finding a death penalty?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from a life without the possibility of parole verdict?
JUROR: No.
THE COURT: I didn't ask you this about, going back. This should have been when I was talking about the witnesses. The testimony in this case, obviously I have read your sheet and see what you do for a living, you are a nurse.
JUROR: Yes.
THE COURT: The testimony in this case is going to be about descriptions, evidence, photographs of deceased children. You work for a pediatric office?
JUROR: Yes.
THE COURT: Can you consider difficult, unpleasant, graphic evidence of that type of subject matter in considering this case and considering the guilt or innocence, considering the punishment or would that be too much for you to consider. I need to make certain you can handle that type of subject matter and sit as a fair and impartial Juror. Would that subject matter be too difficult for you?
JUROR: No, I think I can handle it.
THE COURT: Okay. Fair enough. All right, Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Ms. Nelson.
JUROR: Good morning.
BOYD YOUNG: Now is the time for you and I just to have a conversation about your feelings and opinions about some subjects. Okay?
JUROR: Okay.
BOYD YOUNG: There is no right or wrong answers, it doesn't make you an unfair person, just how you feel. Okay?
JUROR: Okay.
BOYD YOUNG: Were you working at Dr. Stewart's office between 2012 and 2014?
JUROR: I believe I was off and on up front. I can't remember exactly what year I started and I mainly worked the summer months in between nursing school.
BOYD YOUNG: Okay.
JUROR: So I don't remember exactly what years I was working up front at that office.
BOYD YOUNG: And I know you stood up on Monday that you had seen some pretrial publicity. There is nothing wrong with that, it is hard to miss. And you have seen the pictures of the children that are involved in the case.
JUROR: I don't really remember seeing their pictures. Like, I could not--
BOYD YOUNG: You couldn't pick them out?
JUROR: No, I couldn't.
BOYD YOUNG: When you saw the pictures of the children, did you recognize them as having been treated at the office?
JUROR: I don't, I don't think I ever saw them. I don't think I ever worked or dealed with them at all. Like, I don't, because I worked up front during that time so checking them out, check them in or talk to them on your phone, and I don't remember. I don't remember any of that, I don't recognize the name.
BOYD YOUNG: Okay. All right. And I don't recognize your name from any of the records. Fair enough. You said that you had formed an opinion about Tim. Can you tell me what that is?
JUROR: Well, when my mom told me that a father had killed his children, I just thought that is very heartbreaking, how could you do that.
BOYD YOUNG: Right. Sure. Did you sort of form an impression about what should happen to him?
JUROR: I don't remember forming one, I am sure I would have said he deserves to go to prison. I am sure I would have thought that but I honestly don't remember.
BOYD YOUNG: Okay. Fair enough. The Judge told you a little bit about that Tim has plead not guilty by reason of insanity. Okay?
JUROR: Okay.
BOYD YOUNG: Do you have any questions about that. I am going to give you the definition of insanity. Insanity is, in South Carolina when somebody has, says I did the killings, I killed my kids but because of a mental disease or defect I was unable to appreciate the difference between legal or moral right from wrong. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: And some people say in a case like that, insanity is just sort of an excuse or copout, it is a verdict that I can't really find in a case like this. What are your thoughts?
JUROR: I do think that sometimes people have an underlining illness that we don't know about and it comes out and sometimes stuff can happen. So, I mean, I can believe that there is a chance of insanity, I guess is what I am trying to say.
BOYD YOUNG: Sure.
JUROR: I mean, stuff like that can happen.
BOYD YOUNG: I mean, we used to hear about things like the tweeky defense and temporary insanity and sort of like, oh, that is just nonsense. Right?
JUROR: Correct.
BOYD YOUNG: But that is not, it is not you, you are open to, if it is shown to me that somebody didn't know the difference between legal or moral right from wrong at the time they committed the act I could make that finding?
JUROR: If they can prove it without a doubt.
BOYD YOUNG: The standard is a preponderance of the evidence, likely more, likely than not?
JUROR: Okay.
BOYD YOUNG: Is that okay with you or are you going to require proof beyond a reasonable doubt?
JUROR: More likely than not.
BOYD YOUNG: You are going to follow the law that the Court gives you?
JUROR: Yes.
BOYD YOUNG: Okay. I am going to talk to you a little bit about sort of your feelings about the punishment phase of the case. Okay.
JUROR: Okay.
BOYD YOUNG: That means you would have found somebody guilty of murder, like the Judge has told you what it is, the intentional killing of another with malice aforethought. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And you found beyond a reasonable doubt that they are guilty, guilty, guilty, not accident, not self-defense, they knew the difference -- any evidence that you would have heard about insanity you would said, no. Right, this person knew the difference between right and wrong, they chose to kill multiple innocent children. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: At that point and time some people will say, I don't need to hear anything else, you knew what you were doing, you killed multiple children. For me the death penalty is the only appropriate punishment. Is that you?
JUROR: Yes.
BOYD YOUNG: Okay.
JUROR: Well, I don't know, it is so tricky.
BOYD YOUNG: It is, it is tricky. And I am going to talk to you a little bit more, sounds to me it is like maybe you are sort of starting at death might be the appropriate punishment.
JUROR: It could be.
BOYD YOUNG: There is going to be other evidence that the Judge talks to you about and this is sort of the background, character, how somebody was raised, what their life was like. You think that that stuff, that information about the background and character, what their life was like, what the future might be like. Could that, in your mind, be sufficient for you to say, you know what, based on all of that I think the life penalty might be appropriate.
JUROR: As in do I think those factors could have put him doing what he did and therefore consider those and maybe like the influences in his childhood, take those into consideration?
BOYD YOUNG: Right, yes ma'am.
JUROR: Yes, I could take those into consideration.
BOYD YOUNG: And some of the stuff we are talking about, it doesn't have anything to do with what he did. Right.
JUROR: Right.
BOYD YOUNG: It doesn't have anything to do with the killing. All the evidence about the killing, did he do it, how was it done. You know, all of that stuff has already been decided. Right.
JUROR: Right.
BOYD YOUNG: So, this would be additional evidence about some good stuff that he has done in his life, some bad stuff has happened to him in his life, what his future might be like. Do you understand what I am talking about?
JUROR: Right.
BOYD YOUNG: And actually I need to know from you, is that stuff that would matter to you?
JUROR: Yes.
BOYD YOUNG: That is stuff that you could say, you know what, based on that I think life might be the appropriate punishment?
JUROR: Yes.
BOYD YOUNG: Okay. Can you tell me a little bit about, sort of your general philosophy with regard to the death penalty?
JUROR: I do believe in the death penalty. But I think a lot of stuff needs to be considered before you just say, yes, they deserve the death penalty. I do think that influence can change people. I do think that there are sometimes people weren't given a chance and that is why they do the things they did. And so I think those need to be considered. Like people who have rough childhoods, involved in drugs and gangs and they, I don't necessarily, they automatically deserve the death penalty because maybe they weren't given a chance and so I would think more on the line of life without parole.
BOYD YOUNG: Yes.
JUROR: I just think a lot of things needs to be considered before you choose the death penalty but I do believe in it.
BOYD YOUNG: Okay. I think I am with you. Are there any cases that you can think of that sort of, just sort of call out for the death penalty for you?
JUROR: I mean, people like Ted Bundy.
BOYD YOUNG: Serial killers?
JUROR: Right.
BOYD YOUNG: The worst of the worst?
JUROR: Yes.
BOYD YOUNG: Do you sort of think that the death penalty is reserved for the worst of the worst?
JUROR: Yes.
BOYD YOUNG: Do you think that the death penalty is sort of an option of last resort, can't do anything else, they are going to keep praying on people, we as society just have no other choice?
JUROR: I have never really looked at it that way. I could see it that way but I don't really look at it that way. I look at it more as like the ultimate punishment for what you did.
BOYD YOUNG: For the ultimate crime?
JUROR: And kind of the fear factor it might put in them that you just put in your victims and stuff.
BOYD YOUNG: Okay. I understand where you are coming from. Is the murder of children sort of the worst of the worst crimes?
JUROR: If it is flatout murder and not like accidental and not like any kind of specialty, like putting any of those situations to the side and it is flatout you murdered on purpose. Then, yes, that is horrible.
BOYD YOUNG: With malice aforethought, you intentionally murdered, malice aforethought. That sort of is for you, the worst of the worst.
JUROR: Yes.
BOYD YOUNG: Ms. Nelson, I am going to talk to you a little bit about how this decision gets made by jurors. Okay. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: So we have this person and he has been found guilty of murder, intentional murder, multiple children, malice aforethought, meant to do it, knew the difference between right and wrong. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And that is when the jury gets to say, I get to decide between these two punishments. Okay. Life without parole on one hand and death penalty on the other. Okay?
JUROR: Yes.
BOYD YOUNG: The State will present to you what has been called aggravating circumstances, reasons that they think somebody deserves the death penalty. Okay?
JUROR: Okay.
BOYD YOUNG: And the Defense will present to you mitigating circumstances, reasons why they think the life penalty might be appropriate.
JUROR: Okay.
BOYD YOUNG: And as the Court told you, the death penalty is never required, not in this case, not any case, not in the worst case you could imagine. Okay.
JUROR: Okay.
BOYD YOUNG: There is no set of facts like A, B and C equals, the death penalty is appropriate.
JUROR: Correct.
BOYD YOUNG: The jury has to weigh and give meaningful consideration to all of the mitigating circumstances as well, right?
JUROR: Right.
BOYD YOUNG: So mitigating circumstances are different than aggravating circumstances. Okay. Obviously they are different titles and they are different reasons.
JUROR: Right.
BOYD YOUNG: And they are also, considered different ways. Aggravating circumstances have to be proven beyond a reasonable doubt and all the jurors have to unanimously agree that they are present. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Mitigating circumstances don't have the burden of proof and they don't have to be unanimous. Each Juror gets to decide for herself what is or is not mitigating.
JUROR: Okay.
BOYD YOUNG: So one Juror could say, I saw a relationship with his father and that relationship is important to me and I want to give that relationship the value of life.
JUROR: Okay.
BOYD YOUNG: Can you respect the right of a Juror to say, you know, what, based on that relationship I have decided for me that life is the appropriate punishment?
JUROR: Yes.
BOYD YOUNG: And another Juror may say, I don't agree. I don't think that that is mitigating to me, I didn't see it or even if I saw it I don't think that it deserves the way of life. But for me I saw that he was mentally ill, it didn't rise to the level of insanity defense but I thought he was, he is mentally ill. And for me, based on how I am, for that reason alone I want to give that the value of life. Do you understand how they disagree but they have each arrived at their own decision about life as the appropriate punishment for their own individual reasons?
JUROR: Correct.
BOYD YOUNG: And all twelve jurors could have different reasons and still arrive at life as the appropriate punishment?
JUROR: Okay.
BOYD YOUNG: Finally, jurors, under the law and in the law of South Carolina is that a Juror does not even have to have a reason to give the life penalty for any reason, no reason at all or based on mercy alone. So a Juror could say, I have heard everything, I don't think anything rises to the level of me giving the value of life but for me who I am my walk in life, I think life is the appropriate punishment and I can't even tell you why. Are you with me on that.
JUROR: Yes.
BOYD YOUNG: Can you respect the right of a Juror to say, I can't tell you why but life is the punishment that I want to give?
JUROR: Yes.
BOYD YOUNG: It is what is called an individual moral judgment.
JUROR: Correct.
BOYD YOUNG: And the penalty decision, whether you decided to give life penalty or the death penalty is what is called an individual moral judgment. Okay?
JUROR: Okay.
BOYD YOUNG: And the best way it has been described to me, similar to deciding who lives and who dies is decisions about, your personal decisions that you have made about your faith.
JUROR: Correct.
BOYD YOUNG: You have made your own decisions about what faith is appropriate for you?
JUROR: Correct.
BOYD YOUNG: And you recognize that other people have made different decisions about what is appropriate for them?
JUROR: Correct.
BOYD YOUNG: You may disagree with their decision but you respect their right to have their own individual moral judgment.
JUROR: Right.
BOYD YOUNG: And you expect them to respect your right to have your own individual moral judgment.
JUROR: Right.
BOYD YOUNG: If you saw somebody who was being bullied or coerced into saying, your individual moral judgment is stupid. What you have said about your faith or who you want to kill, that is dumb, you shouldn't have that, you aren't worthy of your opinion. Would you stop that?
JUROR: Yes.
BOYD YOUNG: You would say we are all entitled to our own opinion, it is an individual decision, we get to arrive at it ourselves.
JUROR: Correct.
BOYD YOUNG: And even if you disagree with the person, said I don't agree with their opinion but they are entitled to that opinion, to belittle or disrespect them for their opinion is wrong.
JUROR: Right.
BOYD YOUNG: And could you pass a note out to the Judge, saying people are being belittled or yelled at or harassed or bullied out of their individual moral judgment and that is not how it is suppose to go.
JUROR: Right, I mean, as long as I am not getting in trouble.
BOYD YOUNG: You will not get in trouble, nobody is going to get you in trouble. I promise.
JUROR: Yes.
BOYD YOUNG: The Judge wants to know if that is happening in the jury room.
JUROR: Right.
BOYD YOUNG: And you are going to tell him.
JUROR: Yes.
BOYD YOUNG: Finally, you are going to have conversations, you are going to deliberate in the jury room about, if we arrive at that phase, what punishment is for you. And you will listen to other jurors tell you what they think?
JUROR: Right.
BOYD YOUNG: And even if they say, I can't tell you but this is my opinion. You are going to listen to that?
JUROR: Right.
BOYD YOUNG: And then you are going to arrive at your own decision about what is appropriate?
JUROR: Right.
BOYD YOUNG: And the only thing that your oath requires of you as a Juror is to ensure us that your individual moral judgment will be heard in court.
JUROR: Yes.
BOYD YOUNG: Can you do that?
JUROR: Yes.
BOYD YOUNG: Thank you, Ms. Nelson.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good morning, Ms. Nelson.
JUROR: Good morning.
SUZANNE MAYES: My name is Suzanne Mayes, I am one of the Prosecuting Attorney's in this case. So we represent the State.
JUROR: Okay.
SUZANNE MAYES: Just have a few questions for you to kind of follow-up on some of the things that the Defense Counsel was asking you. And I want to start out like he did just asking a little bit about Palmetto Pediatrics.
JUROR: Okay.
SUZANNE MAYES: I know you said you worked there in nursing school.
JUROR: Yes.
SUZANNE MAYES: Do you remember the year that you entered nursing school or would have gradated nursing school?
JUROR: I started, I started college in 2012 so I think I would have gone into nursing around 2013, 2014.
SUZANNE MAYES: Okay. And then would have graduated nursing school?
JUROR: I graduated December of 2017.
SUZANNE MAYES: Okay. And I know you mentioned that you did know Dr. Doer or would have contact with him through Palmetto Pediatrics. But does he travel around to the various satellite locations?
JUROR: So on the weekends or holidays you work at the downtown office and the doctors will rotate there. So I have worked as Dr. Doer's nurse at the downtown office on a weekend and I have, so if the offices are short staffed a nurse can get pulled to another location. I have been pulled to his location before.
SUZANNE MAYES: And you mentioned downtown, what is the street address for that location?
JUROR: It is 140 Park Central Drive, Columbia, South Carolina.
SUZANNE MAYES: Okay. And you mentioned that sometimes you would answer the phone, is that here at the Lexington location?
JUROR: That was when I was working up front at the Lexington location. As a nurse I can be on the phone now but that was more so working up front, scheduling appointments, answering questions, fax numbers, those kind of things.
SUZANNE MAYES: And then what about, I want to ask specifically about the Irmo location and the Clemson Road location.
JUROR: Okay.
SUZANNE MAYES: Are those locations you would have worked up front?
JUROR: Not up front, no ma'am.
SUZANNE MAYES: And then Eli Jones, Eli, known as Eli Jones, is that a name you are familiar with?
JUROR: No, it is not.
SUZANNE MAYES: Nahtahn Jones?
JUROR: No.
SUZANNE MAYES: Merah Jones?
JUROR: No, Ma'am.
SUZANNE MAYES: Gabriel Jones?
JUROR: No, Ma'am.
SUZANNE MAYES: And then the birth name would be Abigail Jones but she went as Elaine Jones. Is that a name you are familiar with?
JUROR: No, Ma'am.
SUZANNE MAYES: With Dr. Deor being a possible witness in this case there may have been some law enforcement officers that would have come to Palmetto Pediatrics to obtain records. Were you a witness in that or involved in that in any way?
JUROR: No, Ma'am.
SUZANNE MAYES: So you would not have had any kind of role or contact with law enforcement in regards to obtaining records in this case?
JUROR: No, Ma'am.
SUZANNE MAYES: Okay. And the names that I just mentioned, would you have reviewed those medical files at any point and time based on your memory?
JUROR: Not that I remember.
SUZANNE MAYES: Okay. Now, one of the questions, I want to go into some of the questions that Mr. Young was asking you specifically about punishment. And you heard Your Honor say that if this case gets to a second phase where punishment is to be decided it would be two options and that is life without parole and the death penalty. Are both of those options that you can consider?
JUROR: Yes.
SUZANNE MAYES: And then Mr. Young asked you a question and your response was yes but it is tricky. I want to ask you a little bit more about that because the question he asked, basically would you automatically give the death penalty in a worst or worst kind of case.
JUROR: Correct.
SUZANNE MAYES: And your response was, it is tricky. And can you explain what you mean by that?
JUROR: It is just, I guess it is hard to sentence someone to death because you are basically saying you are going to die because you took other people's lives. But I do think that there are situations that it is deserved. I guess it is just mostly, it is hard to say, that yes, you are going to sentence someone to death.
SUZANNE MAYES: Without hearing all of the evidence?
JUROR: Correct. That is hard.
SUZANNE MAYES: I want to follow-up on that a little bit more. As Your Honor said, during the course of a second phase of the trial there would be what we call the mitigating factors which is anything that the Defense may offer about his background, his life, for you to consider. Would you want to hear all of that evidence?
JUROR: Yes.
SUZANNE MAYES: Would you consider each of those factors in deciding punishment?
JUROR: Yes.
SUZANNE MAYES: And ultimately after hearing and considering all of those factors can you also see yourself potentially voting for life without parole, having considered all of the mitigating factors?
JUROR: I could.
SUZANNE MAYES: And by the same token, after considering all of the aggravating factors and the mitigating factors, do you also think that you would be capable rendering a death sentence if the facts of the case supported it?
JUROR: I could.
SUZANNE MAYES: Now, with that, Ms. Nelson, if a jury were to unanimously decide that the death penalty was appropriate, each member of the jury would actually sign the form acknowledging that that is their verdict. Do you think that you could sign your name to that form if that were your verdict?
JUROR: Yes.
SUZANNE MAYES: Another thing I think you said in response to Mr. Young was a lot of stuff needs to be considered before deciding punishment, what do you mean by that?
JUROR: Just kind of anything that was presented, like all the facts. If there was a rough childhood, if there was abuse in the home, if there is any kind of proof of mental illness, all of those little facts that would be presented, I think those things need to be considered.
SUZANNE MAYES: Okay. And you would consider each of those before deciding a punishment?
JUROR: Correct.
SUZANNE MAYES: Thank you, Ms. Nelson, nothing further.
JUROR: You are welcome.
EXAMINATION By Mr. Young:
BOYD YOUNG: Ms. Nelson, did you know anybody else who came on Monday that you saw in the big group, any other jurors that were called in?
JUROR: I don't think so. I was kind of sitting in the middle so there was a lot of people behind me. But I don't think I recognized anybody in there.
BOYD YOUNG: Okay. Let me put it to you this way. And you just have to let me know. Do you think that, when we are deciding whether or not to end somebody's life, that we should take a measure of their whole life?
JUROR: Yes.
BOYD YOUNG: And we have sort of had this conversation about your views about the punishment. And given sort of your initial opinions of Tim, do you think that this case, that he is, this case is really not about guilty, not guilty by reason of insanity, it is more just about punishment?
SUZANNE MAYES: Objection, Your Honor, I believe this has been asked and answered.
THE COURT: I think so, I will sustain that objection, asked and answered.
BOYD YOUNG: Thank you, Your Honor. Based on the Court's limitations I will stop there. Thank you, Ms. Nelson.
THE COURT: Does the Defense want to be heard?
BOYD YOUNG: Yes, sir.
THE COURT: Step outside and I will have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: I like Ms. Nelson, I know that she wants to do the right thing. I think she would be a great Juror in a lot of cases. However, she wouldn't be a good Juror in this case. Her ability to follow the law is substantially impaired. She is predisposed to the death penalty in this category of case under Evans and she made that clear throughout her voir dire. Based on the totality of her responses we believe she is substantially impaired and she should be excused.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Yes sir, Your Honor, briefly. Based on the totality of her responses she is clearly qualified. She did expound upon the question that she was asked which we had issues with for a week now about that particular question because it is a loaded question and it is a very suggestive question.
THE COURT: One that is tricky.
SUZANNE MAYES: Her response was it is tricky and then she went on to explain that she would consider everything and that she thinks would have to consider everything including mitigating factors. She is clearly qualified, Your Honor.
THE COURT: I thought her response the first time through was, I would be concerned equally. The question was very open ended, explain it. Her explanation was clearly the other way to me, I think in the totality of the circumstances she is solid and wants to hear everything. I mean that is just her nature of her being a nurse. She gathers information and wants all the information before she makes a call. She is qualified. Bring her back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Ms. Nelson, you are a qualified Juror. That means you are on the qualified list. The website you were looking at to determine when to come in, look at it again and start looking tonight. It will say, qualified jurors please report back to the courtroom. Please check back and see if you are to report. Watch that website for qualified jurors and follow the instructions on when to report back. You are to report back in this courtroom. Not sure when, check that starting tonight. Okay.
JUROR: Okay.
THE COURT: Now, until then you are under oath not to talk about the case, terminate conversation, don't talk about the case or answer questions. Tell them the Judge told you that, if they want to discuss it with me I will discuss it with them. Don't do any independent research, don't peruse social or regular media about this case. What you need to decide this case is here, you will hear the law here, sworn testimony is in here. Outside, none of that will happen. I want you to consider and make your decision solely on what you hear in the courtroom and not to be influenced by information outside the Court House. Can you do that?
JUROR: Yes.
THE COURT: I will see you soon. Thank you.
JUROR: Thank you.
THE COURT: Let's get the first group today, the first group in this morning. Read the preliminary instructions to them, let them start studying the witness list and then during that time take a break. Bring me this panel in. (Whereupon, Juror 396, Amy Simpson; 210, Jonnathan Jackson; 222, Scott Johnson; 326, Karen Perez; 402, Jason Smith; 355, Lashonda Roberts; 65 Kayla Burgess entered the courtroom.)
THE COURT: Are we missing one, the one you told me about?
COURT CLERK: Yes, sir.
THE COURT: All right. Very well. Good morning. We were finishing up some people left over from yesterday. I appreciate your patience. I am going to read an instruction on the law to you, the same I have read to the other groups that have come in. When you come back in I will ask you questions about your understanding of those instructions. Also I need to know about your work schedule, personal schedule, vacation schedule for the next few weeks and if that is going to create a hardship for you. Those are some of the questions I am going to ask you. The Clerk is going to place your under oath. You are under oath to answer questions. Many of the questions are about your personal feelings, beliefs, opinions, so there is no wrong answers. Okay. Madam Clerk, place them under oath, please.
(WHEREUPON, the jury panel was sworn at 9:58 a.m.)
THE COURT: I apologize for reading this to you. I am reading the same as I did all the other panels. I would rather tell it. You, have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Eugene Griffith, Jr. and I am the presiding Judge. Mr. Jones 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 defense of murder combined with certain aggravating circumstances the State can seek the death penalty. Before and during a trial the person accused is presumed innocent of each of the elements of the crime of which he is charged.
The State must prove each and every one of the elements of the crime charged by a standard of proof called beyond a reasonable doubt. In most criminal cases the Judge determines the punishment upon a conviction. But in a Capital penalty case the jury determines punishment. In a Capital case the trial is divided into two phases potentially. The first phase being 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 circumstances into 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. If no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to a life without 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 things. A wide variety of testimony may be presented to you in the trial. I will instruct you as to how to consider and evaluate the testimony and evidence, whether it be defined as evidence of an aggravating factor, evidence of mitigation, which would be any reason to vote for a life sentence without parole. Evidence of any defenses, evidence of any affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. Until the testimony is fully presented I am not able to tell you the exact instruction of the law I will give on each of these. But when you are brought back into the courtroom individually I will ask you can you accept an oath to meaningfully consider all the testimony and all of the evidence, apply the law as I instruct it and consider all evidence consistent with my instructions. That will be one the questions imposed to you individually. Those are my instructions. Step back, a couple of things I forgot. The camera is not on, don't worry about that. Also, don't need to discuss the case back in the jury room. I am going to ask you about any publicity or information because you have some, I read some to you, it is okay. I am going to ask you that question also. So step in the jury room, don't discuss about the case, relax about the cameras. (Whereupon, the jurors were excused from the courtroom.)
THE COURT: Let's bring in 396. (Whereupon, Juror 396, Amy Simpson entered the courtroom.)
AMY SIMPSON, being first duly sworn, testified as follows:
EXAMINATION
By The Court:
THE COURT: Ms. Simpson?
JUROR: Yes.
THE COURT: Say and spell your name for the record as well as for Ms. Holston.
JUROR: Amy Simpson. A-M-Y, S-I-M-P-S-O-N.
THE COURT: I will ask you the questions in the same order, took an oath Monday to not talk about the case. Have you talked about the case since that time?
JUROR: No, sir.
THE COURT: Anybody ask you questions about the case?
JUROR: No, sir.
THE COURT: There has been a lot of publicity, social media, regular tennis, I provided some information reading the indictment to the accusations the State has made in this case. Any information you have received come across, whichever source, I don't care when it happened, news reports, that is information. Anything you have heard about this case, has any of that information caused you to form an opinion about what is happening in this case?
JUROR: No, sir.
THE COURT: Okay. Now, tell me about your personal schedule, work schedule, vacation schedule otherwise over the next several weeks, say to the end of May, what have you got?
JUROR: Through the end of May, nothing.
THE COURT: Early June?
JUROR: No, I don't have any plans until August.
THE COURT: Okay. That is good. I think we will be okay with your schedule. Now, the subject matter about this case involves testimony and evidence, description of deceased children. I have asked the lawyers, I haven't seen all the evidence, I don't know. The description of the lawyers, both sides, harsh, graphic, unpleasant, difficult. The subject matter of that type being difficult and unpleasant. Can you consider that subject matter, be fair and impartial to both sides, understanding that subject matter will be a topic of the whole case.
JUROR: Yes.
THE COURT: You can handle that type of subject matter?
JUROR: Yes, sir.
THE COURT: Did you examine the witness list for me?
JUROR: Yes.
THE COURT: Did you see anybody you knew?
JUROR: I think I know them, I am an acquaintance.
THE COURT: Who is it? There is a lot of people on the list.
JUROR: I know and I had to read it twice. I don't want to miss anybody but April Hames and Stephanie Stanley.
THE COURT: How do you know them?
JUROR: I don't really know April but a friend, I play tennis and it is a large community and occasionally a group of our friends will go out and do other things other than tennis. So April, if it is the April that I think it is she is a friend of one of the people that I play tennis with.
THE COURT: Would that create an issue for you sitting as a Juror understanding she could testify and you still give her testimony the same credibility as all of the other witnesses and be fair and impartial to both sides?
JUROR: Yes, sir.
THE COURT: You are not going to believe her over everybody else because she is a friend of a friend?
JUROR: No, sir.
THE COURT: Equal footing on all the witnesses?
JUROR: Correct.
THE COURT: Who else?
JUROR: Stephanie Stanley.
THE COURT: How do you know her?
JUROR: Tennis.
THE COURT: Same thing?
JUROR: If it is the Stephanie Stanley that I think it is, I haven't seen her in many years.
THE COURT: The same question, can you be fair and impartial in light of the fact she could testify?
JUROR: Yes, sir.
THE COURT: Who else?
JUROR: No one.
THE COURT: That is the only two. Another question is, I am informed, I hold court here regularly but, Preston is what I know him by, is your neighbor?
JUROR: Yes sir, he is. I looked for his name on the list.
THE COURT: I want to ask you about him. He lives nextdoor to you?
JUROR: He lives across the street.
THE COURT: Okay and y'all socialize some?
JUROR: I was in his swimming pool last weekend, yes.
THE COURT: Now, he is not involved in the case other than coordinating security and organization and logistics here in the Court House.
JUROR: Okay.
THE COURT: So not involved, but the fact he is in here, would that create any issue for you being fair and impartial?
JUROR: It would probably make me more comfortable.
THE COURT: Okay. But he is not going to testify or say anything other than maybe respond to some of my, is the door locked, is the door open, is all the jurors here, something like that.
JUROR: I can handle that.
THE COURT: You can handle that. I gave you some preliminary instructions on the law describing the two phase process of a Capital case. Phase one being guilt or innocence, phase two being punishment. Two punishments only, life or death. I also gave you a summary about the three typical types of jurors. Can you, with very scant facts, what I have read to you in open court, presuming the State proves the guilt, can you identify yourself as one of those three types of jurors?
JUROR: Yes, sir.
THE COURT: Which one?
JUROR: Three.
THE COURT: Three. Now, having prepared that, I understand three means, what do you think three means?
JUROR: I understand three to mean that I would consider all of the facts, I can't answer that question without seeing the evidence. But, I mean if you are asking me if I could consider the death penalty the answer would be yes but, you know, I have to see the facts.
THE COURT: You understand the death penalty is not automatic?
JUROR: I understand.
THE COURT: You understand that. That will be my instruction at the very end. All right, now, if we go and I will go back and go through phase one a little bit and tell you some other things. Phase one is guilt or innocence, meaning the State has the burden of attempting to prove the murder. Mr. Jones is presumed innocent sitting right here. The Constitution affords him that presumption. He is presumed innocent, the State has got to meet the burden of proof. If the State fails to meet its burden of proof the verdict is not guilty. The State has got to prove its case beyond a reasonable doubt of the murder. People have certain defenses afforded to them under out statutes. If testimony supports any of them I would instruct the jury you may consider this defense if you think the evidence supports it. The jury does the evidence finding because there may be, for instance there may be testimony, traffic light was red and green, the jury determines which color it was. I don't say I think it was yellow. I don't get involved in the facts. But if there is testimony which would support one of the defenses you may hear instructions on more than one defense. Potentially defenses, I am reading them all whether they are applicable or not because I have not heard the testimony either.
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 available. If testimony and evidence supports the consideration of those would you consider the appropriate instruction on the law provided me and consider the State has the burden of proving the guilt beyond a reasonable doubt, consider the evidence presented, instructions on the law and make findings consistent with my instructions based upon the evidence you hear and be fair and impartial to both sides?
JUROR: Yes, sir.
THE COURT: You could do that?
JUROR: I can do that.
THE COURT: Now, particularly with this case, a plea of not guilty by reason of insanity is claiming one of those defenses which brings two of them kind of into play and I will instruct on those at the appropriate time. Four potential verdict forms in this case could be and the jury may have to consider this, four forms could be, guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Can you give meaningful consideration to my instructions on the law on those four aspects and verdict forms, considering the evidence and testimony presented, understanding the State has the burden of proving its case beyond a reasonable doubt. Will you consider my instructions and give meaningful consideration to all the evidence in reaching that verdict?
JUROR: Yes, sir.
THE COURT: Can you tell me if any one of those four potential verdict forms, that you could not follow my instructions and you would not consider?
JUROR: No, sir.
THE COURT: You would consider all four?
JUROR: If that is what you instructed me to do, yes.
THE COURT: That is what I am asking. That is exactly what my instructions will say.
JUROR: Okay.
THE COURT: Now, if the jury reaches a verdict of not guilty the case ends, stops right there. It don't go to phase two. If the State meets the burden of proving guilty of murder it goes to phase two. At that time the, phase two begins and the State must then prove an aggravating factor. Aggravating factors are several, I will name a couple of them. Murder of a police, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors outlined, defined by our statute. If the State wants to ask for the death penalty they must prove beyond a reasonable doubt at least one of those statutory aggravating factors in the sentencing phase. Also during the sentencing phase jurors consider mitigating evidence. Let me define you some statutory 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 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 age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the crime. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the crime. Those are statutory mitigators. Also mitigating factors can be any reason the jury decides to impose life as opposed to death such as the Defendant's childhood history, came from a broken home, aspects of his personal life. Anything the jury wants to consider, there will be mitigating circumstance evidence presented. Some of those statutory ones might not be, like he is under 18.
JUROR: Right, I understand.
THE COURT: Jury's consider mitigating circumstances. There is no requirement that they be proved to any certain standard. The aggravating circumstances the State is required to prove must be beyond a reasonable doubt. So during the sentencing phase can you hear the testimony, understand my instructions, the burden of the State, consider the aggravating circumstance issue and consider all the mitigating factors in evidence that are presented in the case or heard during the case and make a fair and impartial verdict, decision as to punishment considering my instructions and all aspects of the evidence. Can you do that?
JUROR: Yes, sir.
THE COURT: Now, I told you before, the death penalty is not automatic. The State proves the murder, phase two starts, two options on the table for the jury as to punishment, life or death. Nothing is automatic. The State has still got to prove the aggravating factor.
JUROR: I understand.
THE COURT: The State fails to meet that burden not entitled to ask for the jury to consider the death penalty. So the jury has got to make that finding. Can you consider all the evidence, mitigating, aggravating, from where ever it comes and make a fair, a fair determination of a sentence considering my instructions and be fair to both sides?
JUROR: Yes, I can.
THE COURT: Do you have any moral or reason, moral, personal or religious belief which would prevent you from making a finding of punishment of the death penalty?
JUROR: No.
THE COURT: Do you have any religious, moral or personal belief that would prevent you from finding a sentence of life without parole?
JUROR: No.
THE COURT: Okay. Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Did you tell the Judge you were nervous?
JUROR: Yes, it is intimidating.
BILL MCGUIRE: Yes, it can be. But what I will tell you is that this probably in the one day in your whole life, everything you say is the correct answer. As long as it is your personal belief and accurate and true and candid, everything you say is correct. You can't be wrong today.
JUROR: Awesome.
BILL MCGUIRE: So, Ms. Simpson, so we can talk about this in some concrete terms. I am going to ask you to put yourself in a position that you just find yourself to be Governor of South Carolina for a day. And you have a Bill on your desk and it says, we are going to keep the death penalty and you have a Bill on your desk that says we are not going to have the death penalty anymore. Where would you go?
JUROR: I was the decider?
BILL MCGUIRE: Yes.
JUROR: And I get to choose?
BILL MCGUIRE: Choose one-hundred percent, just you.
JUROR: I would probably keep it.
BILL MCGUIRE: And that would sort of imply you believe there is a purpose in having the death penalty?
JUROR: I believe it is a deterrent, I hope that it is a deterrent.
BILL MCGUIRE: It keeps other people from doing bad things?
JUROR: Perhaps, sometimes. Perhaps not maybe.
BILL MCGUIRE: Okay. Any other reason to have it?
JUROR: No, I mean--
BILL MCGUIRE: Some people might say it is the ultimate punishment and the punishment needs to fit the crime and that is why we need to have the death penalty. What do you think about that statement?
JUROR: Sometimes I guess punishment could be living forever, dealing with, if you were found guilty of something of such then, sometimes I have heard people say that that is almost as much of a punishment as the other. I mean, I am just saying in general.
BILL MCGUIRE: Do you believe that the death penalty is a punishment of last resort?
JUROR: What do you mean by that, last resort. Like you can't take it back, I realize that.
BILL MCGUIRE: Sure. It is irrevocable.
JUROR: Right.
BILL MCGUIRE: Last resort meaning it should be reserved for just the worst cases?
JUROR: Yes.
BILL MCGUIRE: Okay. Sometimes the Court, the Judge will use the phrase, plain ole murder or vanilla murder. You believe the death penalty should be reserved just in the very worst cases?
JUROR: And depending on the circumstances, yes, I don't think it necessarily applies to every case, no.
BILL MCGUIRE: And what about the killing of innocent children. Is that worst of the worst?
JUROR: I think it is pretty awful, yeah.
BILL MCGUIRE: Okay. Some people might say the case of where you have a Defendant, you have the right guy, he is guilty beyond a reasonable doubt, intentionally, deliberately meant to kill children, not a car accident or anything else, this is a deliberate, intentional killing of multiple innocent children, one after the other. Some folks would say that is the worst of the worst and that case calls out for and demands the death penalty. What is your view on that?
JUROR: I don't really think I can answer that honestly without considering everything, all the other factors.
BILL MCGUIRE: When you say factors, what are you--
JUROR: Evidence like what else is going on. I mean, if this person killed five children and intended to do that and meant to do that then, yes.
BILL MCGUIRE: The death penalty?
JUROR: I could vote for it, yes.
BILL MCGUIRE: Okay. The life sentence, letting somebody spend their years in prison, would that be sufficient enough to punishment, intentional killing of multiple children?
JUROR: As long as I could be assured he would never walk among society.
BILL MCGUIRE: The Judge can tell you right now if he wants to, life in South Carolina, life without parole means die in prison.
JUROR: Yeah, they would have to I think. I would not be comfortable with someone like that walking among society, no.
BILL MCGUIRE: And at the end, like if we were to get to a penalty phase, the punishment phase of this trial the Judge would tell you you have two options, the death penalty and the life without parole penalty. And the Judge would tell you that means he never, ever gets out of prison.
THE COURT: It means die in prison.
BILL MCGUIRE: Die in prison.
THE COURT: No release.
JUROR: Under those circumstances it would have to for me, yes. It would have to mean there was no chance they would ever--
THE COURT: I am going to tell you, there is no chance.
BILL MCGUIRE: Our law changed in 1996, parole, sometimes you might even hear about cases--
JUROR: That would give me a problem, that would give me pause if there was parole, that would give me pause.
BILL MCGUIRE: Before 1996 there was parole, ever since then no parole, die in prison.
JUROR: Okay.
BILL MCGUIRE: Are you comfortable if a person, if they were sentenced to life in South Carolina, would in fact have to die in prison.
JUROR: I am comfortable with that.
BILL MCGUIRE: Okay. And you believe that now that the Judge told you that?
JUROR: Yes.
THE COURT: Ma'am, that is law.
BILL MCGUIRE: And in that case where a person intentionally kills multiple children you believe that the life penalty could be a sufficient punishment for that?
JUROR: It could be, I am not saying that it is. I mean,--
BILL MCGUIRE: It is hard to judge it now, right?
JUROR: Yes.
BILL MCGUIRE: Because you don't have all the facts. Well, let me ask you this. The Judge told you a little bit about the defense of not guilty by reason of insanity. What that means in South Carolina, there is no doubt that the person did the act, committed the offense, did kill children. But the defense is, is that he had a mental defect or a disease that prevented him from knowing moral or legal right from wrong. Are you with me there?
JUROR: I am with you.
BILL MCGUIRE: Okay, does that make sense?
JUROR: That makes sense.
BILL MCGUIRE: Some people would say, you know what, killing multiple innocent children, not guilty by reason of insanity, that sounds like a copout, an excuse, kind of letting the guy off too easy. What do you think about that?
JUROR: Well, I am not a doctor so I can't determine whether someone is insane or not.
BILL MCGUIRE: Sure. I am not asking you to make that decision, is somebody insane or not. I am just saying if there was evidence to support it some people--
JUROR: If there was evidence to support insanity?
BILL MCGUIRE: Yes. Some people would still say, even though there is evidence to support it, I am not going to consider that verdict because it just doesn't have punishment attached to it. I can't really vote that way. What do you think about that statement.
JUROR: Can I ask a question?
BILL MCGUIRE: Yes, yes.
JUROR: Okay. So would insanity mean that they could be in a mental institution and potentially get out if they are cured of their mental illness?
SHAWN GRAHAM: Your Honor, I ask that you answer that question of the Juror.
THE COURT: All right. Insanity needs to be proven to be entitled to that, we have not defined the result yet to any other jurors so I am not going to define it for you. Answer the question based on what you got.
BILL MCGUIRE: It is a little hard to shoot in the dark because we can't tell you what would happen if somebody was found not--
SHAWN GRAHAM: Your Honor, there is not a question--
BILL MCGUIRE: There is a question coming there.
THE COURT: Get to the question.
BILL MCGUIRE: So I am just going to restate what I said. It is sort of difficult to shoot in the dark and the rules do not allow us to tell you what would happen if somebody is found not guilty by reason of insanity. And my question is, would that cause you some concern in maybe make you hesitant to vote for not guilty by reason of insanity not knowing what would happen?
JUROR: Yes, not knowing what would happen I can't.
BILL MCGUIRE: You couldn't vote for not guilty by reason of insanity?
JUROR: I would want to know what the outcome of, if they could get out, if they could walk among us again. Then, yes, I don't know that I could--
BILL MCGUIRE: Okay.
JUROR: --that I can do that.
BILL MCGUIRE: That would cause you to not--
JUROR: I would have pause, yes.
BILL MCGUIRE: Yes. Significant pause?
JUROR: Correct.
BILL MCGUIRE: Because you would have a great concern that the person could be out among us again?
JUROR: Correct. If that is a chance of that happening then, yes, I would, no.
BILL MCGUIRE: And that concerns an impediment to considering that verdict?
JUROR: It would, yes.
BILL MCGUIRE: In fixing punishment for a terrible murder, deliberate, intentional killing innocent children. Some folks take the position that, well let me ask you, do you think that it, that the background of the killer, the person who did the killing, do you think his background, how he grew up, maybe in poverty or had a rough childhood, are these things relevant to you in fixing punishment for this type of murder?
JUROR: No.
BILL MCGUIRE: And that is because the facts of the killing are important.
JUROR: No, it is because a lot of people have gone through a lot of things that are horrible and they don't make those choices.
BILL MCGUIRE: Right, people have free will.
JUROR: They do.
BILL MCGUIRE: And if they know right from wrong they make their choices?
JUROR: Correct.
BILL MCGUIRE: And their choices have consequences?
JUROR: Right.
BILL MCGUIRE: Okay. So their background that is, not connected to the crime would not be relevant?
JUROR: I am sorry, repeat that, please.
BILL MCGUIRE: Sure. The background and character of the person who did the killing, that would not be relevant?
JUROR: No.
BILL MCGUIRE: In fixing punishment for this type of intentional killing?
JUROR: No.
BILL MCGUIRE: Okay. And I want to thank you for your answers. It looks like you are giving great thought to what you are saying. Is that true?
JUROR: I am.
BILL MCGUIRE: And you are taking it very seriously?
JUROR: I do.
BILL MCGUIRE: And you are under oath?
JUROR: I am.
BILL MCGUIRE: And your answers are sort of a reflection of who you are as a person?
JUROR: Right.
BILL MCGUIRE: Your personal views?
JUROR: Right.
BILL MCGUIRE: And your personal opinions?
JUROR: Correct.
BILL MCGUIRE: And sort of a reflection of your values system?
JUROR: Okay, yes. That is what I am trying to do, yes.
BILL MCGUIRE: Okay. I just want to make sure these are your absolute, honest, one-hundred percent candid--
JUROR: Oh, I don't get asked these questions every day.
BILL MCGUIRE: I know.
JUROR: And I am trying to give it thought because, it is a big deal.
BILL MCGUIRE: It is a big deal and you are taking it very seriously and you are giving great thought to these answers?
JUROR: Yes.
BILL MCGUIRE: Okay. Let me tell you a little bit about the way this process works and the punishment phase, the sentencing phase. And if you have any questions about that you just start asking me questions. Okay.
JUROR: Okay.
BILL MCGUIRE: Because you are right, people don't get these questions all the time, this is a very new and unique experience.
JUROR: It is a very unique experience.
BILL MCGUIRE: I agree with you, well, not for us but for you.
JUROR: For me, yes.
BILL MCGUIRE: So, the Judge told you about the first phase of this kind of case and it is just like any other trial you would see on the news or TV, to have the right guy, is he guilty beyond a reasonable doubt. And all twelve jurors agree or not, right?
JUROR: Right.
BILL MCGUIRE: The punishment phase in a Capital case is very different. And it has a lot of focus on the individuality of each individual Juror. And I want to explain that to you, if you have questions about that you stop me and ask me.
JUROR: Okay.
BILL MCGUIRE: So, in South Carolina the State is always satisfied with a life sentence. The death penalty is never required, no Juror is ever required to vote for the death penalty ever, not in this case, not in the worst case. Did you know that before you got here?
JUROR: No.
BILL MCGUIRE: A lot of people think that if the Government proves A, B and C it kind of all, well, they have proved everything so it is the death penalty. And the Judge is going to tell you that is absolutely not the way it works, it is never automatic. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: And what that means is, at the end of a sentencing phase and you hear aggravation evidence, hear mitigation evidence, each individual Juror has the absolute right to vote for the life without parole for any reason at all. Did you know that?
JUROR: Yes.
BILL MCGUIRE: What I mean by that, the jury doesn't have to agree on a reason to vote for the life penalty. It is just each individual juror's decision. Does that make sense?
JUROR: Yes, we all have a vote.
BILL MCGUIRE: All have a vote. It can all be different too?
JUROR: Right.
BILL MCGUIRE: This Juror right here, number one could say, I saw that the person had a mental illness and I am not going to vote for the death penalty for somebody who has a broken life. And that is their reason, that is my position. Somebody next to them could say, I saw that he had an enduring relationship with his father, I saw a spark of humanity there, hope for redemption. And that is my reason and I don't agree with your mental illness thing but I have got my own reason. Do you see how everybody could have a different reason?
JUROR: Right.
BILL MCGUIRE: They don't have to agree?
JUROR: Right.
BILL MCGUIRE: Does that seem fair?
JUROR: Everyone is entitled to their opinion, yes.
BILL MCGUIRE: Right. Okay. And at the end of the case the Judge would tell the whole jury, each Juror can vote for life for any reason, no reason or just mercy alone. And some people are better at sticking up for themselves or maybe voicing their opinion. And some person, another Juror could just say, I can't put it into words.
JUROR: Right.
BILL MCGUIRE: But you can just see on their face, they just don't want this burden of having killed another human being by voting for the death penalty. They don't want to do it, they can't do it and they just say, I have no reason. Would you respect that if they had no reason, if they couldn't put it into words?
JUROR: I mean, yes, they are entitled to their opinion, yes. I might not necessarily agree with their opinion but, sure.
BILL MCGUIRE: And in a matter like this so grave as whether another human being dies or not, you would expect some disagreement on that issue?
JUROR: Of course.
BILL MCGUIRE: And the way the law works, if a Juror finds that it is their position, their conscientious held position, their individual moral judgment that the life without parole penalty is right for them. They have a duty and obligation to stick with that position, maintain it and not just give it up to go with the majority. Does that make sense?
JUROR: Yes.
BILL MCGUIRE: That would actually be a violation of the jury oath. And if you saw somebody it would be wrong, it would be wrong for other people to coerce or force somebody, another individual Juror, to give up their conscientiously help position to go with the majority. That is actually against the rules of court. If you saw that happening could you jump in and stop that?
JUROR: I am not usually a confrontational person. I might would probably report it to someone else.
BILL MCGUIRE: That is exactly what could happen. The rules and the law demands that these proceedings be conducted with decorum, dignity and respect.
JUROR: Right.
BILL MCGUIRE: And expect civil discourse and reasonable deliberations. But bullying, intimidation, forcing somebody to give up their position just to try to get the majority on one side, that is wrong. And what you could do is pass a note out to the Judge saying we were told this had to be conducted with civility, it has gotten beyond civil discourse, it is coercive in the jury room, Judge, could you put a end to that, could you stop that and get civility back here. Could you pass that note up?
JUROR: Yes.
BILL MCGUIRE: That is all I have for you. Let me check.
BILL MCGUIRE: Can I have just one second, Judge?
THE COURT: Yes.
BILL MCGUIRE: That is all I have for you, thank you very much.
JUROR: Sure.
RICK HUBBARD: Nothing at this time but I do have a matter.
THE COURT: Okay. Ma'am, step out real quick. I have a matter to take up with the lawyers. Be right back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Yes, sir.
RICK HUBBARD: Judge, this is yet another case where we have a Juror who in every way is qualified because of her answers, she wants to listen to everything. The type of question is being asked, unfairly traps the novice that comes in as a Juror. Starts out with staking questions, Your Honor, about the death penalty. And it is not following the Morgan v. Illinois language. That question in that case was, if you found the Defendant guilty would you automatically vote to impose the death penalty no matter what the facts are. What is being done here is they are couching these god awful heinous facts in saying would you vote for death. Every Juror, just about every Juror is struggling with that, I don't know all the facts which is correct. That is why it is an improper question. The Defendant builds from there and it goes, onto the death penalty and then jump right back to the first phase, the NGRI. So that Juror is still on the second phase. They are just new to this. And then asked, all right, that same case, they are still answering on that same first question.
THE COURT: I think the Defense needs to ask their question but also put in there, without all the facts. They consistently don't do that.
RICK HUBBARD: And then, Your Honor, I guess without us having to stand up and object constantly they jump right in, they go from that to NGRI. So you are going back to that first phase and that Juror is thinking, there is no break in the questions. And the Juror is thinking those same facts to answer the next question. And that is why all of a sudden she is like, I can't, I want to know more. Of course she does. And it leads right to the problem we were discussing earlier.
THE COURT: I agree with you.
RICK HUBBARD: And now on the record very prudently, I can't answer without knowing more but she wants to know more about what happens after, you know, somebody is found insane. She got walked right into it.
THE COURT: I tend to agree with you, they steer that way. I am in the same position with another Juror just like this.
RICK HUBBARD: And it could be when we get to that point in trial, you may determine on how to address that on the front end. But right now that is not laid down so it is patently unfair for a Juror in that position when they are just trying to be honest.
THE COURT: About this from this point forward. She asked the question two different ways. She talked about life in the old rule and new rule. She knew there was a difference. And it took three instructions for me to convince her life meant life. I mean, she looked at me three times when that question was going on because she was not taking Mr. McGuire's word for it. And he said it three times, four times. She may still doubt it, I don't know. She also provided testimony and she was not considering any of the background or any mitigation at all, that was people have bad backgrounds, they still do bad things. I think for that reason alone she is disqualified. But she is also, couldn't make a decision on not giving reason of insanity. Y'all want to be heard on that.
BILL MCGUIRE: I think I understand what the Court is saying. I agree, she is disqualified on a number of--
THE COURT: Okay, I find her disqualified, the State is not going to have to ask questions. Can we agree from this point forward, when asking about the verdicts. I ask about the four separate verdicts. The Court will give you further instructions on that verdict. If they ask a question I will give further instructions during the trial and not the end result. Because I haven't answered that question yet, we have not answered it for any other Juror so I don't want to answer it for one now. I am still considering that.
BOYD YOUNG: We are fine with that, Your Honor, and we consistently maintain the best way to ask them is just tell them the truth.
THE COURT: I understand, I have not made a ruling on that. You keep asking that but I keep ruling the same way.
BOYD YOUNG: Yes, sir.
THE COURT: So I don't think the truth, you want me to read the statute. The truth would be, yes, he could walk free.
BOYD YOUNG: Could be, yes.
THE COURT: Right. And so--
BOYD YOUNG: If a couple of doctors and the Court all agree that could happen.
THE COURT: Okay. I am going to run her back in and we will go to the next one.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Based upon the questions and answered we got from you, everything, the Court is going to find you not qualified and excuse you from service.
JUROR: Okay.
THE COURT: Thank you for your patience and understanding.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Can y'all add in that question you keep asking, something to the effects, without all the facts. Because you are leaving them in there, wanting to know if they will get all the facts.
BILL MCGUIRE: Well, Judge look at the question, we, intentional, murder, malicious, there is nothing wrong with that.
THE COURT: Innocent.
BILL MCGUIRE: Innocent children. There is nothing wrong with that. And then not an accident, car accident. And some people have actually said, well, it is not an accident. So we take that out and we say in that situation deliberate, intentional killing of innocent children. Then the death penalty should be automatic. That is exactly the advice we have.
THE COURT: Without all the facts.
BILL MCGUIRE: I am sorry.
THE COURT: Without all the facts. You can't say that.
BILL MCGUIRE: We used the question, without hearing anything more, just based on that. Some people would say the death penalty is always appropriate, what is your position. If they say, yes, death is always the verdict that is appropriate, it should always be death. Then what they are saying is--
THE COURT: I know what they are saying, you don't have to argue that to me. But I like, you add some, without all the facts, rather than you give them your intentional, malicious, with ill-will, I mean you are hammering that in.
BOYD YOUNG: I think I said without anything more.
THE COURT: You may have but Mr. McGuire didn't this last time. I mean, y'all are doing it different. I am not fussing at you for doing it.
BILL MCGUIRE: You just have to find the words that are appropriate for the person that is in front of you.
THE COURT: I understand. Can you shorten your question about, if you see civil discourse can you, and you all do it, send a note to the Judge and then read the entire note, send a note to the Judge that we need help. Kind of shorten it because it says the same thing. They know where you are going. Civil discourse, can you send a note out to the Judge telling him, hand it to the Bailiff and you end of giving 25 more words than you need. I am just trying to streamline some things.
RICK HUBBARD: Your Honor, I think it is the same thing with intentional murder, malicious murder, that is what murder is, you have already told them that. It builds it up and then they are, at least on this occasion left out the key, no matter what the facts are or regardless of what the facts are.
THE COURT: I am, I would like to add without all the facts. Hearing nothing more, something along those lines would be helpful rather than leaving the Juror thinking that is all they are going to get. Because that is not all they are going to get. No one would be that, without considering all the facts. I guess what it leads to is, this Juror thinks, well, is that all I am going to get. And, no. It is confusing in that regard to them as a novice is they don't realize they are going to get more facts than they really want. But it is not going to be a situation where they get no other facts. That is confusing to them. And that is where the trap is. Does that make sense?
BOYD YOUNG: It makes sense but I disagree that it is a trap.
THE COURT: It is a trap.
BOYD YOUNG: Because that answer doesn't disqualify them. We are arguing at that point and time and then we are going to talk about the additional stuff you are going to hear.
THE COURT: That is called a trap.
BILL MCGUIRE: And, Judge, we would be satisfied with putting five pictures of the children up and then the pictures of the bodies and say that is what you are going to see. I know you are not going to do that but our words are so weak in comparison to the massive horrific amount of evidence they are going to get.
THE COURT: I don't want to hear that. Bring the next one in. (Whereupon, Juror 210, Jonathan Jackson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: You are Mr. Jackson. Spell and say your first and last name to Ms. Holston to determine whether she is picking you up properly.
JUROR: Jonathan, J-O-N-A-T-H-A-N; Jackson, J-A-C-K-S-O-N.
THE COURT: Mr. Jackson, you took an oath Monday to not talk about the case. Have you discussed the case with anybody whatsoever?
JUROR: No.
THE COURT: Anybody ask you about the case since Monday?
JUROR: I have had people ask if that is the case I am on.
THE COURT: You said you can't talk about it?
JUROR: Yes.
THE COURT: Now, there has been publicity in this case, social media, regular media, all sorts of publicity four years ago, last month, last week, since the Monday. I gave you information reading the indictments. That was information to the jury. Based upon any of that information received, where ever it came, don't care where it came from or where or when you got it. Has that information caused you to form an opinion as to what happened in this case?
JUROR: Not really, just to see what--
THE COURT: -- you understand there has been five accusations made?
JUROR: Yes.
THE COURT: Aside from the accusations made, accusations of murder, any other opinion formed by you?
JUROR: No.
THE COURT: Now, I ask you about your work schedule, vacation schedule over the next two or three weeks, through the end of May, early June, what have you got?
JUROR: I am available for it.
THE COURT: If you were selected you potentially could serve, it would be an inconvenience to you and your family and your work schedule?
JUROR: Yes.
THE COURT: That is a good answer, a fair answer?
JUROR: Work doesn't like it.
THE COURT: But serving as a Juror in any case will be an inconvenience as a civic duty. That is one of the responsibilities we have as citizens. We have to endure that burden and that is okay. I gave you a list of potential witnesses. Did you review that list?
JUROR: Yes, I did.
THE COURT: Did you notice anybody on the list you know?
JUROR: Scotty Frier.
THE COURT: How do you know him?
JUROR: He was the lead investigator in my mother's murder trial.
THE COURT: When was that?
JUROR: She was murdered in '94, had the trial in '97.
THE COURT: And that case has already ended?
JUROR: Yes.
THE COURT: Okay. And was that investigated by Lexington County or West Columbia?
JUROR: Yes, Lexington County.
THE COURT: The trial was in '97?
JUROR: Yes.
THE COURT: Okay. Now, subject matter in this case. Would that affect your ability to be fair and impartial if he was a witness, Investigator Frier?
JUROR: No.
THE COURT: That was twenty years ago?
JUROR: Twenty-two years ago, yes.
THE COURT: The fact that the Lexington Sheriffs Department was involved in the case and potentially part of the Eleventh Circuit prosecutors were involved in the case, were any of these prosecuting?
JUROR: No, that was Donnie Myers and Fran Humpheries.
THE COURT: Fran Humpheries?
JUROR: Yes.
THE COURT: Those were the two prosecutors, you remember that?
JUROR: Yes.
THE COURT: Who was the Defense attorney?
JUROR: It has been so long I don't remember.
THE COURT: But you remember Mr. Humpheries and Mr. Myers?
JUROR: Yes, they worked well with the family.
THE COURT: The subject matter in this case would involve the testimony about the case, children. It has been described to me by the lawyers who have reviewed it, I have not seen some of the evidence, evidence is going to be tough, unpleasant, difficult, graphic. Those were the words the lawyers were using to me to tell jurors, it is going to be tough, unpleasant, difficult. Understanding the subject matter will be in that fashion, will be regarding that type of subject matter, can you consider testimony and evidence of that nature and still be fair to both sides?
JUROR: I think I can, yes.
THE COURT: You can consider that subject matter and still be fair to the State and to Mr. Jones?
JUROR: Yes.
THE COURT: Now, I gave you kind of an overview of the criminal process involving the prior trial. You know a little bit about it?
JUROR: Yes.
THE COURT: The State has the burden of proving the guilt. Once the guilt is proven, if it is then the case goes to the sentencing phase. If it is not proven then the case ends, not guilty, okay. Presuming the, my three type of jurors, if guilt is found and it goes to the sentencing phase and you are a potential Juror can you identify yourself as one, as any one of those three types of potential jurors?
JUROR: Yes.
THE COURT: Which type?
JUROR: Type one.
THE COURT: You are type one?
JUROR: For the death penalty.
THE COURT: Do you believe that is automatic?
JUROR: Eye for an eye basically, yes sir.
THE COURT: Okay. Fair enough. Okay, I don't think we have anything else for you.
JUROR: Okay.
THE COURT: Thank you very much for coming, have a nice day and a nice weekend.
JUROR: Okay.
THE COURT: Thank you for your patience.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring the next one. (Whereupon, Juror 222, Scott Johnson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Mr. Johnson, spell your name, first and last for the record and so Ms. Holston can determine whether you are speaking out loud.
JUROR: Sure. Scott Johnson. S-C-O-T-T, J-O-H-N-S-O-N.
THE COURT: Mr. Johnson, I am asking you the same question. You are still under oath. You took an oath last Monday to not talk about the case with anybody. Have you talked to anybody about the case since last Monday?
JUROR: I only mentioned to my wife that I am going to be in the jury pool, that is the extent of that.
THE COURT: Since that time has anybody asked you about this case?
JUROR: No.
THE COURT: Also the publicity in this case, four years ago publicity, several months ago, there has been publicity off and on but it is kind of more intense here in the last two weeks. I gave you, read five indictments, allegations of the facts alleged by the State against Mr. Jones. He is presumed innocent of those charges. Have you, any information you have received, whenever it was received, whether it was four years ago, four minutes ago, last week on Monday, I don't care where it came from, any information you have received, has that caused you to make, form an opinion about this case?
JUROR: No, sir.
THE COURT: You have not formed an opinion whatsoever?
JUROR: No, sir.
THE COURT: All right. Now, how is your availabiity, asked you about your work schedule, your personal schedule, your vacation schedule commencing next week toward early June?
JUROR: My work schedule, I can work remotely, my employer is aware of it. They are going to continue my salary during the process if I am selected. I work for a good company so no issue there. We do not have any vacation scheduled at all this year.
THE COURT: So if you were qualified as a Juror you could serve?
JUROR: Yes, sir.
THE COURT: The subject matter in this case involves allegations of the death of children. I have asked the lawyers, I have not seen all the evidence, I am going to be receiving it also for the first time. Subject matter involves testimony described by the lawyers, the lawyers have seen all of the evidence. They exchange it and share it. It is difficult, graphic, harsh, unpleasant. That has been the descriptive words I have been getting. Evidence of that type subject matter, harsh and difficult, unpleasant, can you fairly and honestly weigh and receive that type of evidence and still be fair and impartial to both the State and the Defense?
JUROR: I do believe I could, yes.
THE COURT: Now, did you look over the potential witness list?
JUROR: Yes, sir.
THE COURT: Did you notice anybody you knew?
JUROR: I didn't know anybody.
THE COURT: Didn't know a soul?
JUROR: No, sir.
THE COURT: Now, I gave you an overview of the criminal procedures in a Capital case, kind of a two phase step process. Step one, phase one, guilt or innocence determined by the jury. Innocence is found the case ends. If the jury believes the State has proved the case beyond a reasonable doubt, a finding of guilt occurs goes to phase two. The State then has to prove an aggravating factor and mitigating factors presented by the Defense. At that point right now, you don't have any fact other than what I have read to you, the indictments.
JUROR: That's correct.
THE COURT: Two options, life or death. Can you find yourself as one typical type of Juror as described in my little summary of typical types of jurors. Where do you fall?
JUROR: I consider myself a type three.
THE COURT: Type three?
JUROR: Yes, sir.
THE COURT: What does that mean to you. I wrote this and I know what I intended to seek out. What do you think it means?
JUROR: For me I wouldn't make a decision until I got all the facts on either way.
THE COURT: On either way?
JUROR: Yes, sir.
THE COURT: You know the death penalty is not automatic?
JUROR: That's correct.
THE COURT: But there is only two choices, life or death. That is the jury's decision if you get to the punishment phase. Now, I am going to back up and go back to the guilt or innocence phase and ask you a couple of more questions about some other aspects of the criminal law. In a criminal case someone is accused by way of the indictment. The State makes an accusation, they have got to prove the case beyond a reasonable doubt. The Defendant believes not guilty, this case, Mr. Jones plead not guilty by reason of insanity. He is presumed innocent sitting right here in the courtroom and will be presumed innocent throughout the trial until the State overcomes that presumption by proving its case beyond a reasonable doubt. Some defenses he can claim, he has already claimed one. I am going to read them, all of them may not be applicable but if the testimony supports you may receive instructions on those so I am going to see if you can understand my instructions. Allowed by statute are the following defenses. Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses allowed by our code books. Mr. Jones may present testimony supporting one of those, one or more of those. Can you meaningful consider the instructions of the Court, all the evidence received, understanding the State has got the burden of proving its case beyond a reasonable doubt in this phase. The Defense may present on some of those offenses and consider my instructions, consistent with the evidence, consistent with my instructions, both ways, can you be fair and impartial to both the State and the Defense in doing so
JUROR: Yes sir, I believe I could.
THE COURT: Okay. Mr. Jones has entered a plea, claiming a defense of not guilty by reason of insanity. I will give you instructions on these potential verdict forms by claiming or alleging that defense. There are four potential verdict forms in this case when we get there. Potential verdicts that the jury could consider. Guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty whatsoever. Those are four potential verdict forms that the jury may consider. Can you give meaningful consideration to each and every one of those potential verdicts in considering the evidence presented to you, the State's burden of proving its case beyond a reasonable doubt and in considering my instructions. So you evaluate all of the testimony and evidence, can you find those, any one of those, each of these verdicts, could you do that?
JUROR: Yes, sir.
THE COURT: Can you be fair and impartial in doing so?
JUROR: Yes, sir.
THE COURT: I will give an explanation, more instructions on the aspects of those defenses and how they are defined by the law at that time. If a not guilty verdict is found, not guilty by reason of insanity the case ends, it stops right there, goes no further. If the State meets its burden of proving guilty beyond a reasonable doubt we go to phase two. In phase two the State has got to prove an aggravating factor. I am going to name all five. Murder of a police, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State must prove one of those beyond a reasonable doubt in the sentencing portion in order to ask for a sentence of death. During this portion the Defense also presents on mitigating factors. I am going to read the statutory mitigators that are allowed. The Defendant has no significant history of prior criminal conviction involving the use of violence against another person.
The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another and his participation was relatively minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators. Also mitigators the jury can consider as any aspect of Mr. Jones' life. Childhood, came from a broken home, any of those factors can also be considered as mitigators or those are reasons to find a life sentence. Can you consider all the evidence, both aggravating factors which the State has got to prove beyond a reasonable doubt and any mitigating evidence and circumstances and make a finding as to the punishment of this case considering my instructions on those aspects. Can you do that?
JUROR: Yes, sir.
THE COURT: Understanding that the death penalty is not automatic. You understand?
JUROR: Yes, sir.
THE COURT: Two choices, life or death. You understand?
JUROR: Yes, sir.
THE COURT: My instructions will give instructions to that end. Can you be fair and impartial to both the State and the Defense in that regard?
JUROR: Yes, sir.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from making a finding of punishment of death?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal belief that would prevent you from making a finding of punishment of life without the possibility of parole?
JUROR: No, sir.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Good morning, how are you?
JUROR: Good morning.
ROBERT MADSEN: My name is Rob Madsen, I am one of Tim's lawyers. The Judge kind of went over with you about the law and kind of being fair and impartial. What I want to talk to you about this morning is just kind of your opinions. So no right or wrong answers, just trying to find out what you think and feel. Is that okay?
JUROR: Yes, sir.
ROBERT MADSEN: Did you know any of the other jurors in the jury panel when you came in a little over a week ago?
JUROR: Not a one.
ROBERT MADSEN: And can you just kind of tell me what your feelings are on the death penalty?
JUROR: I mean, I know it is the ultimate punishment for a crime. I believe it could be deserved based on the crime itself.
ROBERT MADSEN: And so would you say it is the penalty of last resort?
JUROR: It can be.
ROBERT MADSEN: Should it be reserved for the worst of the worst?
JUROR: I feel so, yes.
ROBERT MADSEN: Let me ask you. The Judge kind of went over the four different potential verdicts with you and as you have heard, Tim has plead not guilty by reason of insanity. And what that means, that is someone who is saying, hey, I did the crime but because of a mental disease or a defect I could not appreciate moral or legal, the moral or legal wrongfulness of my actions. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And my question to you then is some people hearing that say, you know, that is just not on the table for me. That is not something that I would consider and my question is, is that you?
JUROR: No, it is not. I would consider that.
ROBERT MADSEN: And so if you heard evidence that supported that and believe that evidence you could vote for not guilty by reason of insanity if you thought that that--
JUROR: I would use the information for consideration.
ROBERT MADSEN: Yes, sir. I want to talk with you about your feelings of the punishment for a guilty murderer of multiple children. Okay.
JUROR: Okay.
ROBERT MADSEN: And so kind of put you in the jury and you and eleven other jurors have heard information and you found that the person knows the difference between right and wrong. So in other words, if you heard stuff about their mental health, y'all have rejected that and said, no, this person knew moral or legal right from wrong. Are you with me?
JUROR: Yes, sir.
ROBERT MADSEN: And there is no defenses, there is no justification, there is no excuse so it is not a heat of passion or a self-defense or an accident or anything like that. I mean you have found this person guilty of an intentional killing of innocent children. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And so my question to you is without hearing anything else, what are your feelings about the death penalty as the appropriate punishment for that guilty murderer of multiple children.
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: Overruled. You phrased it the way I suggested it, I thought. Do we need to be heard.
SHAWN GRAHAM: If we can have a sidebar.
THE COURT: Okay. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
ROBERT MADSEN: You want me to ask it again.
JUROR: Would you mind, please.
ROBERT MADSEN: So in that situation where you have got, you and eleven other jurors have found someone guilty beyond a reasonable doubt of the killing of multiple children. They knew right from wrong, no defenses, no excuse, not an accident, you know it is that person. My question to you, is that person that intentionally and maliciously killed multiple children, my question is without hearing anything else what are your feelings as the death penalty as, the feelings about the death penalty as the appropriate punishment for that guilty murderer of multiple children?
JUROR: From my understanding, we have to consider the aggravating and mitigating circumstances so I wouldn't be able to form an opinion without all of the underlying circumstances.
ROBERT MADSEN: Okay. And so there are cases that you can think of, in your mind where the death penalty would just be, you know, for you that just screams the death penalty?
JUROR: Nothing comes to mind.
ROBERT MADSEN: So would you want to hear information about the Defendant's character and background and how they grew up and kind of what they went through.
JUROR: I would want to hear every available information.
ROBERT MADSEN: And so in that situation your mind wouldn't be made up, you wouldn't want to make a decision based on everything you have heard?
JUROR: Correct.
ROBERT MADSEN: So you do understand from what the Judge told you that death is never required. The law is always satisfied with a life sentence. Do you understand that?
JUROR: I do understand that.
ROBERT MADSEN: And so that means life sentences are appropriate in this case, any case or even the worst case that you could ever imagine. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And as you kind of said, the aggravating and mitigating circumstances, you understand that aggravating circumstances have to be found unanimously by all of the jurors and they have to be found beyond a reasonable doubt.
JUROR: Yes, sir.
ROBERT MADSEN: And mitigation is a little bit different. Mitigation doesn't have any type of burden of proof. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And the jurors could even kind of disagree on what they feel is mitigation. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: And so what I mean by that is Juror number one could say, you know what, I saw a spark of humanity, I saw a relationship with his dad and for me I want to give that, the sentence of life. That is important to me and I think that is, deserves a sentence of life. Do you understand that?
JUROR: Yes, sir.
ROBERT MADSEN: Juror number two might sit there and say, you know, I didn't see that but I see that he does have a mental illness or a broken mind and to me that deserves the sentence of life. You could respect that?
JUROR: Yes.
ROBERT MADSEN: And you understand they might disagree with what they see and they can find mitigation themselves?
JUROR: Yes.
ROBERT MADSEN: Do you understand that?
JUROR: I understand that.
ROBERT MADSEN: And Juror number three here could say, I didn't see what they saw and quite honestly I can't really tell you why I think life is appropriate but it is just something that tells me life is appropriate and I just can't express myself. If Juror number three said that could you respect them and say, I respect your opinion on that?
JUROR: I could respect their opinion, yes.
ROBERT MADSEN: And obviously, all twelve jurors could vote for the life penalty but have different reasons that are just individual to them, do you understand that?
JUROR: Yes.
ROBERT MADSEN: And when we talk about the decision to, you know, take another citizen's life, we kind of call that an individual moral judgment. Are you familiar with that?
JUROR: I mean the morality of it.
ROBERT MADSEN: The way it has been described to me is you made a decision on your faith, that is your individual moral judgment on what faith is appropriate for you. And someone over here might have made a different individual moral judgment on what their appropriate faith is. And you would expect them to respect your decision on your faith, wouldn't you?
JUROR: Yes.
ROBERT MADSEN: And I would imagine you would respect their decision?
JUROR: Yes.
ROBERT MADSEN: Even though y'all disagree? And so the decision on what the appropriate penalty is is an individual moral judgment that each jurors has to make themselves. Do you understand that?
JUROR: I do.
ROBERT MADSEN: And the law says that once that Juror makes that individual moral judgment they just can't throw that away because they want to go in with the majority. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And when you get back into a jury room there is discussion back and forth, there is civility in talking about it. You understand that?
JUROR: Yes.
ROBERT MADSEN: But at the same time if someone has come to their individual moral judgment, it is illegal to bully them or browbeat them out of that individual moral judgment.
JUROR: Yes.
ROBERT MADSEN: And if you saw that going on would you say, hey, this is past civility, this is past civil discourse, that is inappropriate. Would you do that?
JUROR: I would try to keep the discussions civil.
ROBERT MADSEN: And you understand that if it got to that point you could write a note to the Judge. Judge, this is kind of out of bounds, this is inappropriate, we need some help from you.
JUROR: Yes, sir.
ROBERT MADSEN: Could you do that if you saw that?
JUROR: I could.
ROBERT MADSEN: Subject to the Court's limitations that is all I have.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: My name is Shawn Graham, I am one of the Prosecutors on this case.
JUROR: Okay.
SHAWN GRAHAM: Thank you for your patience and answering our questions. In the guilt phase with the plea of not guilty by reason of insanity there will be experts who will testify. So there will be doctors, maybe psychiatrists, maybe psychologists. An expert is to give an opinion. You have somewhere earlier on one of your questions, I think you said something that you would listen and evaluate, you do understand that just because somebody gives an opinion you are not bound by that opinion.
JUROR: Correct.
SHAWN GRAHAM: You still consider using your common sense and other facts and circumstances?
JUROR: I would judge it on my own, yes.
SHAWN GRAHAM: Talking about being in the second phase, so now, we are assuming that you have already found him guilty and now we are looking at the punishment part. At that point you either have the choice of life or death. You want to hear everything?
JUROR: Yes.
SHAWN GRAHAM: You would want to hear the good, the bad, the ugly, everything?
JUROR: Yes, sir.
SHAWN GRAHAM: Part of that is anything that the Defense presents, mitigation, and that is something that you and the other jurors would be able to review, to consider and to look at. And if you felt it appropriate give a life sentence.
JUROR: I could, yes. Either way.
SHAWN GRAHAM: And you understand that just because it is presented and you consider it and look at it doesn't mean you automatically have to give the life sentence?
JUROR: Correct.
SHAWN GRAHAM: You could consider and weigh it for what it is worth, reach your decision and at that point you would choose either life or death?
JUROR: Yes.
SHAWN GRAHAM: If you and the other jurors reached a decision that death was appropriate in this case you would have to sign your name to a form, each one of you would have to sign your name on a form attesting that you thought death was the appropriate sentence.
JUROR: Yes.
SHAWN GRAHAM: Would you be able and willing to do that?
JUROR: Yes, sir.
SHAWN GRAHAM: Thank you.
THE COURT: You want to be heard?
ROBERT MADSEN: No, sir.
SHAWN GRAHAM: No, Your Honor.
THE COURT: Mr. Johnson, you have been found qualified by the Court based upon all of your answers, questionnaire, questions and answers here. Here is what happens. I want you to check the website tonight. Determine when it says to come back and report as a qualified Juror. Qualified jurors please check back or please come back at some particular time. Come back to the courtroom at that time. Now, under oath, do not discuss the case, talk about the case, don't let people talk to you about the case. Not to do any independent research, you are not to peruse publicity, whether it be social media or other media. I want you and the other jurors to decide the case based upon what is presented in the courtroom under oath, not outside with no responsibility to what is being said. Can you live up to that oath?
JUROR: Yes, sir.
THE COURT: See you when you come back.
JUROR: Yes, sir.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: The next Juror will be 326. Y'all need a minute now or you want to keep rolling.
BOYD YOUNG: Keep going.
THE COURT: Bring her in. (Whereupon, Juror 326, Karen Perez entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning. How are you?
JUROR: Well, how are you?
THE COURT: I am very good. Please state your name and spell it so that Ms. Holston can make certain you are talking into the microphone.
JUROR: My name is Karen Perez. P-E-R-E-Z.
THE COURT: Ma'am, I asked you take an oath last Monday, and that oath was not to discuss the case with anybody. Have you discussed the case with anyone?
JUROR: No, I have not.
THE COURT: Has anyone tried to discuss the case with you?
JUROR: Yes, they have.
THE COURT: What did you do?
JUROR: Told them that I was under oath to not discuss the case.
THE COURT: Great answer.
JUROR: Thank you, sir.
THE COURT: Now, there has been publicity, social media, public media, news media, whatever from different sources. I, in fact, read the indictments, the allegations the State is making against Mr. Jones to you and all the jurors. I don't know which publicity you may have heard or not heard, I don't really care. I care about this answer. Any information that you have gathered on this case or been presented, has any of that information caused you to form an opinion as to what happened?
JUROR: No, it has not.
THE COURT: So you understand the allegations I read are merely that, they are noticed, allegations to Mr. Jones, what to be prepared to defend himself under. He has plead not guilty by reason of insanity, he is presumed innocent right now. Do you understand that?
JUROR: I understand that.
THE COURT: And the State has got to meet the burden of proving, to disprove that presumption they have got to present evidence beyond a reasonable doubt.
JUROR: Yes sir, I understand.
THE COURT: Now, I asked you about your availability over the next several weeks, vacation, work, any conflicts over the weeks between now and the end of the month toward the early part of June.
JUROR: No, sir. No conflicts.
THE COURT: No conflicts so if called to serve you could serve?
JUROR: Yes sir, I could.
THE COURT: Very well. Now the subject matter in this case, I have not seen all the evidence, I have not seen much at all as a matter of fact. I will be receiving the evidence just like the jury. It has been described by the lawyers to me, Judge, this is difficult, it will be tough, unpleasant, graphic involving the death of children. Would that subject matter be difficult for you to receive and consider or can you receive and consider difficult subject matter such as that, as I have described and still be fair and impartial to both the State and to Mr. Jones?
JUROR: I believe I can receive it and be fair.
THE COURT: Very good. I sent you a potential witness list, lengthy. The lawyers have to identify all potential witnesses if possible, not just the main ones, they have got to do all of them in case they get called so you can answer this question. Do you know any of them?
JUROR: I believe I know one of them.
THE COURT: Who is that?
JUROR: That would be Joe Powell.
THE COURT: And how do you know him?
JUROR: I believe it would be through church.
THE COURT: Okay. So you attend church with him?
JUROR: I have.
THE COURT: Now, you still attend church with him?
JUROR: I do not.
THE COURT: All right. Has he changed churches or have you changed churches?
JUROR: I changed churches and it was, it has been many years.
THE COURT: Okay. So the fact that he is going to appear as a witness, would that affect and he may not get called.
JUROR: Right.
THE COURT: He could be called. If he did would that affect your ability to evaluate all the testimony, particularly his, fairly and impartially?
JUROR: No.
THE COURT: All right. Now, I gave you an overview moments ago out here when you were sitting in the jury box. I believe you were on my far left?
JUROR: Yes.
THE COURT: On the end?
JUROR: Yes.
THE COURT: Considering my instructions, did you understand them about the two phase process in a Capital case?
JUROR: I believe I do.
THE COURT: So there is phase one is guilt or innocence only?
JUROR: Right.
THE COURT: The State has got to meet its burden of proof and prove the case beyond a reasonable doubt, if they fail to meet the burden the case ends. If they do make that burden, prove the guilt of the murder we go to phase two. At that point the State then as to prove an aggravating factor and the jury considers mitigating factors. At that point, typical jurors in a Capital case are outlined by types one, two and three. I handed that to you to read before you came in here.
JUROR: Yes.
THE COURT: Can you find yourself as one of those typical types?
JUROR: I can.
THE COURT: Identify yourself?
JUROR: Type three.
THE COURT: Type three. That is a person that what?
JUROR: That is a person who does not make a judgment without gathering all of the information, testimony and evidence.
THE COURT: So you have got an open mind?
JUROR: I do.
THE COURT: You want to hear everything?
JUROR: Not necessarily.
THE COURT: Okay.
JUROR: But yes sir, yes sir.
THE COURT: Okay. Now, would all the testimony be relevant, do you think that is presented?
JUROR: If it was presented I would hope so.
THE COURT: Okay. I would too. All right. The accusations the State has made, they have got to prove their case. Their potential defenses available to all of the defendants, I am going to read them all. If testimony supported some of them I may instruct further on those at that time but without knowing the evidence I can't tell you this one is out, this one is in. I got to hear the evidence to decide what to instruct the jury on.
JUROR: Right.
THE COURT: Potential ones, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses. Not all of them will be instructed, maybe one or two. Right now I can't tell you. If those defenses are presented, the testimony presented are relevant to some of those defenses, can you consider the Court's instructions, the State's burden of proof, proof beyond a reasonable doubt of the elements of murder as well as consider the instructions on any of those relevant offenses. Consider my instructions and evaluate the testimony and evidence that you hear in the trial. Can you do that?
JUROR: I can do that.
THE COURT: Can you be fair to both the State and Mr. Jones?
JUROR: I believe so.
THE COURT: Okay. Now, in this case Mr. Jones has claimed one of those defenses already. He claims not guilty by reason of insanity. By virtue of that plea the jury will likely get a verdict form having four potential verdicts rather then just guilty or not guilty. Four potential verdicts, guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty whatsoever. Can you give meaningful consideration to each of those potential verdicts, considering my instructions on each aspect of those defenses and verdicts, evaluating that testimony and evidence fairly and impartially. Can you do that?
JUROR: I can do that.
THE COURT: Be fair to the State and the Defense?
JUROR: I can do my best.
THE COURT: Very well. Now, if the State fails to meet its burden, the jury finds a not guilty verdict or not guilty by reason of insanity the case ends. If the State meets its burden it goes to phase two.
JUROR: Right.
THE COURT: In phase two the State is required to prove an aggravating factor. I will name off several. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors from our statutes. The State must prove at least one of those beyond a reasonable doubt in order to be able to ask a jury to return a punishment of death. Do you understand that?
JUROR: I do.
THE COURT: Do you understand that the death penalty is not automatic?
JUROR: I do.
THE COURT: Do you understand the jury will have two choices to make, one or the other, life or death.
JUROR: Yes, sir.
THE COURT: During that phase also mitigating circumstances and evidence is presented for the jury to consider. I am going to name off the statutory mitigators for you. The Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was below the age of 18. The Defendant was provoked by the victim in committing the murder. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators that you could hear testimony about, you may not but you could. Additional mitigators are any factors, any evidence regarding Mr. Jones' life history. Troubled childhood, came from a broken home, any types of aspects of his personal life could be considered mitigating factors. Can you give meaningful consideration to any mitigation testimony and evaluate fairly and impartially, also consider and evaluate the State's burden of proving an aggravating circumstance and act as a fair and impartial Juror, making findings consistent with my instructions?
JUROR: Yes, I can.
THE COURT: Can you, can you tell me, do you have any religious, personal or moral belief which would prevent you from finding a punishment of death?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from making a punishment finding of life without parole?
JUROR: No.
THE COURT: You realize and I have told you, the death penalty is not automatic?
JUROR: Right.
THE COURT: Do you understand that?
JUROR: Yes.
THE COURT: All right. Mr. Young.
BOYD YOUNG: Can we ask the Juror to step out real quick.
THE COURT: Sure. Step out real good.
JUROR: Can I leave my bag?
THE COURT: Absolutely, I won't go through it.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
BOYD YOUNG: Your Honor, it has come to my attention that, the Chronicle, the Lexington Chronicle or whatever has restocked their paper box out in front of the Court House. I showed the picture to the State, mass murderer trial starts Monday.
THE COURT: How did they know that?
BOYD YOUNG: I don't know but we have jurors coming in now.
THE COURT: Make that an exhibit. (Whereupon, Court's Exhibit 74 was marked for identification only.)
THE COURT: And I note, that reporter, I am not sure what he looks like, unlike some other reporters.
BOYD YOUNG: He was in here yesterday, pink shirt, khaki pants. When I came back he was standing at my table in front of the bar which I didn't have a real concern with. I asked him to move back.
THE COURT: And I tell all of the security, reporters are not allowed at the attorneys tables, either side, that is absolute off limits.
BOYD YOUNG: I don't know what the, we request that the Chronicle box be removed through the regular trial and we renew our motion for a change of venue. I don't if you can, I don't know what the law is about, moving it or that it would just be covered, blacked out, need to put something in front of it so it can't display what those papers are. Obviously we have had this issue before where jurors have seen these out in the community, not necessarily at the Court House.
THE COURT: A few jurors have said, I saw such and such.
BOYD YOUNG: Right, at the Hardee's and other locations when they were out in the community. There is another reason we would, again, renew our motion for a change of venue.
THE COURT: I will deny your motion for a change of venue but I will grant your request to minimize, remove, turn around, remove the paper box and we can do so. It does not need to be on the Court House grounds during a trial. That is just totally unfair and creates hurtles for us. We can move that, I think. Yes, I think the curative action should be taken and we are going to take that. I mean, it is like the TV people having a big screen TV out there that reports. They are not doing that.
BOYD YOUNG: Even if they were doing that that would be during the trial, the jurors would know who they were.
THE COURT: Right, I agree with you. It is something that we can minimize. I deny the request for change of venue and we will go forward.
BOYD YOUNG: For the record, I made everybody aware as soon as it came to.
THE COURT: Bring me Ms. Perez.
(Whereupon, the Juror came into the courtroom.)
THE COURT: Ma'am, I had to address an issue for Mr. Young, nothing to do with you. Remember this, you are under oath, he wants candid answers, opinions, that type of thing. You cannot give a wrong answer.
JUROR: Okay.
EXAMINATION By Mr. Young:
BOYD YOUNG: We will have a group conversation, okay.
JUROR: Okay.
BOYD YOUNG: Ms. Perez, did you know any of the other jurors who were called in on Monday?
JUROR: I knew one of them, yes.
BOYD YOUNG: Can you tell us who that was?
JUROR: I don't know her name but she worked for the orthodontist that I went to like 25 years ago or so.
BOYD YOUNG: Okay.
JUROR: So I say I know her, she just looked familiar and we were speaking but that is all.
BOYD YOUNG: And that relationship between the two of you, would that in any way, if y'all were both on the jury would that, would you be convinced that her opinion was more correct than your opinion?
JUROR: No.
BOYD YOUNG: I didn't think so but I had to ask.
JUROR: Yes, sir.
BOYD YOUNG: Move that mike around so we can hear you and I think the Judge has told you the cameras are off and all that kind of stuff, nobody can report on who you are.
JUROR: Yes, sir. And I appreciate that.
BOYD YOUNG: Okay. As your aware the Judge has told you what the charges and accusations, he has read you the indictments in this case, five counts of murder, right?
JUROR: Yes, sir.
BOYD YOUNG: And Tim has plead not guilty by reason of insanity. Do you understood when the Judge told you that?
JUROR: Yes, sir.
BOYD YOUNG: When somebody says I plead not guilty by reason of insanity that means I did the action, killed the kids, are you with me on that?
JUROR: Right.
BOYD YOUNG: And they say, but because of a mental disease or defect I was not able to appreciate the legal or moral wrongfulness of my actions. Kind of a lot. Do you understand what the words are?
JUROR: Yes.
BOYD YOUNG: Some people say in a case like that involving killing, not guilty by reason of insanity is not on the table for me, it is not a verdict I could consider, it is a copout, it is an excuse. And I just have to ask, what is your opinion about that?
JUROR: I really hesitate to say what my opinion is about that but my opinion, I think you have to be insane to do something like that.
BOYD YOUNG: Would you be open to hearing evidence and saying that I have decided that that is the appropriate verdict in a case of this magnitude?
JUROR: Absolutely, yes sir.
BOYD YOUNG: Okay. And you understand why some people would say, no, I am not going to consider that.
JUROR: I do, I do.
BOYD YOUNG: But that is not you?
JUROR: That is not me.
BOYD YOUNG: So I am going to move forward and we are going to talk about your views about punishment.
JUROR: Okay.
BOYD YOUNG: Now, the only time that the jury gets to talk about punishment, whether it is the life penalty or the death penalty would be after somebody has been found guilty of murder.
JUROR: Right.
BOYD YOUNG: Are you with me on that?
JUROR: I am.
BOYD YOUNG: And guilty of murder, like the Judge told you, is intentional killing of another, malice of aforethought, they knew what they were doing, had evil intent, they chose to kill innocent kids. Are you with me on that?
JUROR: Right.
BOYD YOUNG: And any evidence that the jury heard about insanity, not insanity, they would have rejected that evidence. Are you with me on that. They would have found he was sane, he knew the difference between right and wrong at the time of the killings?
JUROR: Okay.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: That is out the window, right?
JUROR: Right.
BOYD YOUNG: So for you, can you tell me a little bit about your views about the death penalty or the penalty of life without parole for that guilty murderer after you have rejected those defenses.
JUROR: I think, I think that actually, I think that the death penalty is more gracious rather than surviving and living with the done deed. If someone were given the death penalty, I am not sure if I am answering this correctly.
BOYD YOUNG: You can't answer it incorrectly.
JUROR: Okay. Just my opinion on the death penalty?
BOYD YOUNG: Sure.
JUROR: Like I said, if somebody is convicted and given the death penalty then I don't have a problem with it.
BOYD YOUNG: Okay. It sounds to me like you may think that the life penalty would be more harsh. That might be the easy way out?
JUROR: Yes, I do think that.
BOYD YOUNG: And you understand that the law in South Carolina is the other way?
JUROR: I do, yes I do. But you ask my opinion and so--
BOYD YOUNG: I did, I did.
JUROR: Okay.
BOYD YOUNG: And I am not trying to talk you out of your opinion. I just need to know, understand that in South Carolina death is the harsher punishment. Can you follow that law?
JUROR: I can, yes sir.
BOYD YOUNG: Despite your opinion that it might be easier?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Can you tell me a little bit about sort of your general philosophy about the death penalty?
JUROR: I don't know if I have given much thought to the death penalty or have a philosophy about it. I think the death penalty can certainly be deserved.
BOYD YOUNG: A person can earn the death penalty?
JUROR: Yes, sir.
BOYD YOUNG: Are there other cases where you think that that sort of really cries out for the death penalty?
JUROR: The murder of five children comes really close.
BOYD YOUNG: Okay.
JUROR: Yes.
BOYD YOUNG: And but for, if they are insane that is okay but if they are not insane the murder of five children sort of, you are at death. Is that what I hear you saying.
JUROR: That is you are not insane, that if you did this out of evil malice?
BOYD YOUNG: Yes.
JUROR: Yes.
BOYD YOUNG: For you the life penalty, you did this out of evil malice, sort of not on the table for you?
JUROR: I don't know if I understand what you are saying.
BOYD YOUNG: Not a sufficient enough penalty for that intentional malice, murder of children.
THE COURT: That is inconsistent with her answer. She remembers her answers. Go back and think about her answers and reask your question.
BOYD YOUNG: Ms. Perez, don't let me put any words in your mouth, okay.
JUROR: Okay.
BOYD YOUNG: And if I have you wrong you just tell me.
JUROR: I will try.
BOYD YOUNG: Thank you very much.
JUROR: You are welcome.
BOYD YOUNG: I thought I understood you to say that once you have found not insane, guilty of murder, five children. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And you haven't heard all of the evidence yet, right, you haven't heard there might be mitigation, additional aggravation?
JUROR: No.
BOYD YOUNG: All of that kind of stuff. Understanding that you may hear additional evidence, are you saying based upon the fact that I have found somebody guilty of malice, murder of five children that for me the only appropriate punishment is death or are you saying that is not you?
JUROR: So you are asking me if I believe that is the only appropriate punishment if he is not insane would be the death penalty?
BOYD YOUNG: Yes, Ma'am.
JUROR: Yes.
BOYD YOUNG: Okay. Fair enough. Thank you, Ms. Perez.
JUROR: You are welcome.
SUZANNE MAYES: No questions, Your Honor.
THE COURT: All right. Ms. Perez, thank you for your answers and the Court will excuse you from being a Juror. Thank you very much.
JUROR: Thank you, Judge Griffith. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a couple of minutes.
(Whereupon, a short break was taken.)
BOYD YOUNG: Your Honor, for the record, I went downstairs, that box is not bolted or chained down in any way, it is not heavy, it is pretty easy to move. I turned it around so that the front of it is not facing out.
THE COURT: I am not certain, Ms. Cromer went downstairs to call somebody to do something about it. She left here, she was intent on--
BOYD YOUNG: If it can be taken inside until--
THE COURT: I am going to do one of those things. I don't want it sitting during the remainder of the trial because it is going to create an issue once a week. I agree with you. And the State doesn't want that issue either. I mean, we are all on the same page, there is not going to be a problem with that. We have got 402, bring the Juror in. (Whereupon, Juror 402, Jason Smith entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: I remind you you are under oath.
JUROR: Yes, sir.
THE COURT: State your name and spell your name, in light it is an easy name to spell, we need to check the microphone for Ms. Holston.
JUROR: Check, check.
THE COURT: All right, Mr. Smith, you took an oath last Monday to not talk about the case. Has anyone tried to talk to you about the case?
JUROR: No, sir.
THE COURT: Have you talked with anyone about the case?
JUROR: No, sir.
THE COURT: There has been publicity, social media, public media, news media, whatever, four years ago, several months ago, last week, publicity. I have read you the indictments, the allegations.
JUROR: Yes, sir.
THE COURT: That was facts alleged by the State. Based upon anything you have already heard, up to this point, where ever it came from, whenever you got it, have you formed an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: Okay. Have you seen or heard publicity in this case?
JUROR: Very little, at the very beginning.
THE COURT: Several years ago?
JUROR: Yes, sir.
THE COURT: And you didn't form an opinion based upon that?
JUROR: No, sir.
THE COURT: Now, I asked you about your work schedule, personal schedule, otherwise starting next week for about three weeks. What would you have to reschedule if you were selected as a potential Juror?
JUROR: I work for the Lexington County Fire Marshall's office. I have jobs that are out and permitted. We have other guys that work for us, things can be rescheduled. However it is going to take some time to get those things rescheduled.
THE COURT: So other than the inconvenience at work you could still serve?
JUROR: Yes, sir.
THE COURT: Fair enough. And everybody who is employed in some fashion, if they are selected to serve on a jury, the Court obviously knows it is an inconvenience. I try to minimize the inconvenience, however one of our responsibilities as a citizen is to serve on jury's when called to do so. So that is an inconvenience to some and we just have to tolerate it.
JUROR: Sure.
THE COURT: The testimony in this case is going to be received regarding subject matter involving the death of children. The subject matter has been described to me by the lawyers as difficult, graphic, harsh, unpleasant. Those are the words the lawyers have said. I have not seen all the evidence either.
JUROR: Yes, sir.
THE COURT: I have not been given the preview. That subject matter of that type, that subject matter being difficult and unpleasant, could you receive that type of testimony, subject matter and still be fair to both the State as well as Mr. Jones?
JUROR: Yes, sir.
THE COURT: That wouldn't bother you?
JUROR: No, sir.
THE COURT: You heard my summary of the criminal process, criminal procedure between now and the end of the trial. In a Capital case is a two phase system. Do you understand?
JUROR: Yes, sir.
THE COURT: Did you understand my instruction when I explained that the guilt or innocence is first and then the sentencing is second.
JUROR: Yes, sir.
THE COURT: And there is only two choices, life or death.
JUROR: Yes, sir.
THE COURT: The death penalty is not automatic?
JUROR: Yes, sir.
THE COURT: Understanding my instructions and understanding that my query on the types of jurors presupposes that guilt has been found, aggravating factor and mitigating factor will be presented during the sentencing phase. Can you identify yourself as one of those three types of potential jurors?
JUROR: Yes, sir.
THE COURT: What type?
JUROR: Type three.
THE COURT: Type three. Now, I wrote this and I kind of know what I meant when I wrote it, how do you interpret being a type three. What does that mean?
JUROR: To me it means taking all of the information in, listening to all of the information, making a determination that based on all of the information, not just one part or other.
THE COURT: Okay. So you are not presupposed to one side or the other, you want to hear everything.
JUROR: Yes, sir.
THE COURT: Fair enough, good answer. I said good answer, there is no wrong answer. My comment didn't mean you were the best answer.
JUROR: I got you.
THE COURT: I am looking for candor, candid answers. There are about your personal beliefs and opinions and so there are no wrong answers, your personal beliefs. Now, if the case goes, I am going to go back and do a little more definition on the guilt or innocence portion. In that portion the State has to prove the murder beyond a reasonable doubt. They call their witnesses first, present their case first. During the portion of the trial defenses are also presented in the guilt or innocence phase. It is not presented later. The defenses are presented in the first phase. I am going to read off potential defenses, some of them won't be instructed, the ones that are appropriate will likely be instructed during that portion of the trial. Okay.
JUROR: Okay.
THE COURT: Potential defenses include identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses that are allowed by our statutes. Can you meaningfully consider instructions on any of those defenses if they are appropriate to be instructed because if the testimony doesn't support them they won't be instructed by the Court, they will be not relevant. So I am not going to instruct them all, just the ones that apply?
JUROR: Yes, sir.
THE COURT: Can you give meaningful consideration to the State's burden of proving its case beyond a reasonable doubt of the murder as well as any of the defenses and my instructions on how to evaluate and consider those, consider all the testimony and evidence and be a fair and impartial Juror?
JUROR: Yes, sir.
THE COURT: Can you be fair and impartial to the State and to Mr. Jones?
JUROR: Yes, sir.
THE COURT: Now, if the jury reaches a unanimous verdict that the State did not prove its case or that not guilty by reason of insanity is proven, at that time the case would end. It stops, everybody goes home. If the State meets its burden of proof and the case goes to the sentencing phase then, I want to ask you some questions about that.
JUROR: Okay.
THE COURT: Do you understand that during the sentencing portion the State has to prove an aggravating factor. Five potential aggravating factors, I am going to name them, the State has got to prove one of them. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State must prove one of those aggravating factors beyond a reasonable doubt. Do you understand that?
JUROR: Yes, sir.
THE COURT: If they don't prove one beyond a reasonable doubt then they are not entitled to ask for the death penalty. If they prove it beyond a reasonable doubt they are entitled to ask for the death penalty as the punishment. The defense presents on mitigating factors. Mitigating factors are reasons to impose a life sentence. There is no burden of proving them, the jury considers the information and testimony that is presented. Potential statutory mitigators, not all of them will be appropriate but some of them could 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 under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18. The Defendant was mentally retarded at the time of the crime. Those are statutory mitigators. Other mitigators jury's could consider, any testimony they believe entitles a reason or an imposition of a life sentence such as the Defendant's history, his broken home, if he came from a broken home. His troubled childhood if he was an abused child. Anything in his history can be considered by jurors. Can you give meaningful consideration to my instructions on the law, evidence testimony presented at trial, considering the State's duty to prove the aggravating factors beyond a reasonable doubt and the mitigation factors the jury must consider in evaluating the appropriate punishment. Can you be a fair and impartial Juror under those circumstances?
JUROR: Yes, sir.
THE COURT: And you will reach a fair and impartial verdict understanding there are only two, life or death, no in between, no other options. Can you do that?
JUROR: Yes, sir.
THE COURT: Can you be fair to the State and to the Defense?
JUROR: Yes, sir.
THE COURT: Can you, I am sorry, do you have a religious, personal or moral belief which would prevent you from assigning a punishment of the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, personal or moral belief from assigning a punishment of life without parole?
JUROR: No, sir.
THE COURT: You could be fair to both sides?
JUROR: Yes, sir.
RICK HUBBARD: Your Honor, may we approach real quick?
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: Mr. Smith, I was informed that you were assigned to a first responders team of some type, maybe you remember, maybe you don't, that was involved in the transporting of people regarding this case. Are you aware of that?
JUROR: No, sir.
THE COURT: Okay.
RICK HUBBARD: Wrong person then, Your Honor.
THE COURT: May be a wrong person. You have got a common name. So you weren't assigned as a, I understand that you work for the Fire Marshall?
JUROR: Fire Marshall's office, yes sir.
THE COURT: You have not been assigned to any duties or responsibilities involving in this case, in any manner whatsoever?
JUROR: No, sir.
THE COURT: Fair enough. Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Mr. Smith.
JUROR: Good morning, sir.
BOYD YOUNG: My name is Boyd Young, I am one of Tim Jones' lawyers, okay.
JUROR: Yes, sir.
BOYD YOUNG: Now is an opportunity for you and I to have a conversation about your opinions, there is no right or wrong answers. Okay.
JUROR: Yes, sir.
BOYD YOUNG: First off I want to thank you for your service.
JUROR: Thank you.
BOYD YOUNG: I know that you were in combat over in Dessert Storm.
JUROR: Yes, sir. Could I clarify that?
BOYD YOUNG: Please do.
JUROR: Dessert Storm, I was in the National Guard, was not in combat during Dessert Storm. We were activated, sent to Fort Stewart, Georgia and then to Fort Irwin, California. My service time is civilian. In 2005 I went to Iraq as a civilian firefighter. So I didn't serve in combat.
BOYD YOUNG: Okay. Here is, let me tell you why I was asking.
JUROR: Yes, sir.
BOYD YOUNG: Some people who have had that experience and been in combat like that, you know, maybe a murder case might not be right for them. You understand, you know people like that?
JUROR: Yes.
BOYD YOUNG: And I just have to ask. Is that you or is it something that you could do?
JUROR: Yes sir, I can.
BOYD YOUNG: You understand why I had to ask?
JUROR: Yes sir, I know.
BOYD YOUNG: The second thing you put on your questionnaire was some information about your dad.
JUROR: Yes.
BOYD YOUNG: That he has been in trouble here in Lexington?
JUROR: Yes, sir.
BOYD YOUNG: Is that in Lexington?
JUROR: Yes, sir.
BOYD YOUNG: Was he prosecuted by the Solicitor's office here?
JUROR: He was, yes sir.
BOYD YOUNG: Did he go to prison?
JUROR: He did, yes sir. He has actually been in and out of prison since I was three.
BOYD YOUNG: Is there anything about that experience dealing with the Lexington County Solicitor's office or Lexington County Police Department that affects you in any way? Do you think he was handled fairly and appropriately?
JUROR: I think he was, yes sir.
BOYD YOUNG: Do you understand why I have to ask about that?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Did you know any of the other jurors that came in on Monday when you were in that big room?
JUROR: There was one Juror that, we call him Paco, he worked for us at the fire service but he is retired. I know him, he worked on the other end of town, on the other end of the County, excuse me. But that is the only Juror I knew.
BOYD YOUNG: Okay. If you and he were both on the jury would that in any way be an issue for you like maybe his opinion would weigh more than your opinion?
JUROR: No, sir.
BOYD YOUNG: You would have your own opinion?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Let me talk to you a little bit about the case. The Judge has read you the indictments, you are aware of the charges and what the allegations are?
JUROR: Yes, sir.
BOYD YOUNG: And the Judge has told you that Tim has plead not guilty by reason of insanity. Not guilty by reason of insanity in South Carolina means that because of a mental disease or defect somebody was unable to appreciate the legal or moral wrongfulness of their conduct. Does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: And I imagine you have probably, in your line of work, dealt with some people that were mentally ill?
JUROR: Yes, sir.
BOYD YOUNG: Some severely mentally ill?
JUROR: Yes, sir.
BOYD YOUNG: And you understand that some people say, for me in that type of killing not guilty by reason of insanity is not something that I can give meaningful consideration to. And my question for you, is it something that you can like really see yourself voting for, saying if it was proven to you that that would be a real option for you?
JUROR: With all the facts, where I work at the Fire Marshall's office, I have to take all the facts and put them together to make my final determination on things that I write up by code. And, yes, I could take all the information put together and form an opinion on that.
BOYD YOUNG: Right. And the Judge will tell you that the burden of proof is on the Defense to prove by a preponderance of the evidence not guilty by reason of insanity. If you found it and you said, all right, well, more likely than not you could vote for it.
JUROR: Yes, sir.
BOYD YOUNG: Okay. After that verdict, if it is not guilty or not guilty by reason of insanity the trial is over?
JUROR: Yes.
BOYD YOUNG: But if it is guilty or guilty but mentally ill then the jury may have the option to consider punishment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Now, all the evidence that the jury would have heard, not guilty by reason of insanity, the jury would have said that is not the case. We found beyond a reasonable doubt the person was sane, they knew what they were doing, they intentionally, maliciously killed multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: At that point and time, understanding you haven't heard all the evidence, there might be additional aggravation, evidence might be additional, mitigating circumstances but some people say based on who I am, at that point and time for me the only appropriate punishment would be death. You know there are people like that?
JUROR: Yes, sir.
BOYD YOUNG: Just based on the type of case?
JUROR: Yes, sir.
BOYD YOUNG: And my question for you, is that you?
JUROR: Taking all the information in, I would have to make that decision at that time.
BOYD YOUNG: Okay. So life without the possibility of parole, that could be a substantial enough punishment for you in that type of case?
JUROR: It could be, yes sir.
BOYD YOUNG: It is on the table?
JUROR: Yes, sir. Depending on all of the evidence.
BOYD YOUNG: Yes, sir. At that point and time where you found a person guilty, guilty, knew what they were doing. Are you with me?
JUROR: Yes, sir.
BOYD YOUNG: Do you have a leaning towards life or death or are you still saying I need to know more?
JUROR: I do have a leaning towards the death penalty.
BOYD YOUNG: Okay. It is sort of, you are open to stuff being presented to you?
JUROR: Yes, sir.
BOYD YOUNG: But you would, the Defense should present to you evidence in mitigation that says maybe the death penalty is not the appropriate punishment?
JUROR: Yes, sir.
BOYD YOUNG: Can you think of what that type of stuff might be that would say for me, you know what, I am right, you are right, life without parole could be an appropriate punishment?
JUROR: There, I mean, someone, I know how drugs affect people, alcohol, things of that nature. People sometimes snap, lose their minds especially on drugs, I have been around drugs my whole life with my father and just being in the fire service seeing that kind of thing. I know how things can happen that places people out of their right mind at that time and that would be one circumstance.
BOYD YOUNG: Fair enough. They are still criminally responsible?
JUROR: Yes, sir.
BOYD YOUNG: And you would hold them accountable. And when something like that might make you say, all right, life could be appropriate?
JUROR: Yes, it is possible.
BOYD YOUNG: And the Judge would tell you, under the influence of drugs and alcohol is a mitigating factor and that you have to give it meaningful consideration and you would do that?
JUROR: Yes, sir.
BOYD YOUNG: And you know some people say, drugs and alcohol for me, that makes it worse. I think that that is aggravating.
JUROR: I have seen my dad and I know how he can be on drugs and how he is off of drugs. So I know there is two different people there at different times. So I know that I can make a decision depending on what the circumstances were, whether, I think I could make a decision on that.
BOYD YOUNG: And I want you to go one step further and say, if somebody said, well, to me that makes it worse. Could you tell them, no, the law is that we have to consider it as mitigation?
JUROR: I don't think I understand.
BOYD YOUNG: The Judge is going to charge you on mitigation factors.
JUROR: Yes, sir.
BOYD YOUNG: But the law for the jurors is, it has to be considered as mitigation, as mitigating, as weighing in favor of the life penalty.
JUROR: Okay.
BOYD YOUNG: And if a Juror was back there saying, well, to me it makes it worse you would say that is not the law, here is the law that we are suppose to follow. You can't consider it that way.
SUZANNE MAYES: Objection, Your Honor. The Court can instruct--
THE COURT: I think the question is a little confusing, sustained. Rephrase your question and keep going with it.
BOYD YOUNG: I think you understand what I am talking about?
JUROR: I do, yes sir.
BOYD YOUNG: Okay.
THE COURT: Just so he knows. The Court does give instructions to the jurors about how to consider and evaluate the law, they argue the facts. And so it gets a little bit confusing sometimes. Continue on.
BOYD YOUNG: Yes, sir.
BOYD YOUNG: Mr. Smith, do you think that in this decision, this ultimate decision about whether to end a person's life that we should, you should as a Juror weigh their whole life and in making that decision about whether or not to end it?
JUROR: I think so but there is also circumstances with myself that, I grew up in a bad situation with my father and I turned out okay. And it is different for other people, I can weigh that out. But I know for me I turned out fine. But I made that conscious decision, choice to turn away from the other, other things that would lead me to that circumstances.
BOYD YOUNG: And I just need you to share with me, if you are open to weighing all of that information.
SUZANNE MAYES: Your Honor, asked and answered, Your Honor.
THE COURT: I am going to let him answer it but I agree with you. Can you consider all of the evidence, I think what you asked. He can answer it.
BOYD YOUNG: He did, Your Honor.
THE COURT: Okay, he answered it affirmatively.
BOYD YOUNG: Yes sir, he did.
BOYD YOUNG: Mr. Smith, at the end of the day this decision about life penalty or death penalty is what we call an individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Whether we are going to kill this person or allow them to stay in prison until they die is, for each Juror makes their own judgment or, and it is a moral judgment, there is no right or wrong answer. There is no A, B and C, this is appropriate, D, E, F, this is appropriate.
JUROR: Yes, sir.
BOYD YOUNG: The way that I describe it, it is sort of like choosing what faith is appropriate for you. You have made your own individual moral judgment about that?
JUROR: Yes.
BOYD YOUNG: And you understand that other people have made different decisions for themselves?
JUROR: Right.
BOYD YOUNG: You respect their right to make their own decision about that?
JUROR: That's right.
BOYD YOUNG: You expect them to respect your own decision?
JUROR: Yes, sir.
BOYD YOUNG: And if you saw somebody being bullied or coerced or belittled for their individual moral judgment, would you say that is not right?
JUROR: Yes, sir.
BOYD YOUNG: And would you stop it?
JUROR: Yes, sir.
BOYD YOUNG: And if you had to would you even send the Judge a note?
JUROR: Yes, sir.
BOYD YOUNG: I imagine you could stop it yourself but if it got to the point you could send out a note?
JUROR: Yes, sir.
BOYD YOUNG: Thank you very much.
BOYD YOUNG: Based on the Court's limitations that is all I have.
THE COURT: Yes, sir. Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Just briefly, Mr. Smith.
JUROR: Yes, ma'am.
SUZANNE MAYES: Just to follow-up a little bit more. As the Judge informed you, if this case were to go to a second phase, there would be two options, life without parole and the death penalty. Can you consider both of those options?
JUROR: Yes, ma'am.
SUZANNE MAYES: And in doing so could you consider each of the mitigating factors which would be anything out there that the Defense may offer about the Defendant?
JUROR: Yes, ma'am.
SUZANNE MAYES: Would you follow the Court's instructions in giving each of those meaningful consideration?
JUROR: Yes, ma'am.
SUZANNE MAYES: And if after doing so and you heard all the evidence and all the mitigating factors that are presented, if at that time you determine that life without parole was the appropriate sentence could you render a verdict of, or a sentence life without parole?
JUROR: Yes, ma'am.
SUZANNE MAYES: Having take into consideration all of the mitigating factors which could be offered in this case?
JUROR: Yes, ma'am.
SUZANNE MAYES: And by the same token, if after hearing all of the aggravating factors offered by the State and each of those mitigating factors offered by the Defense, you determine that a death sentence was the appropriate sentence, is that a sentence that you could vote for?
JUROR: Yes, ma'am.
SUZANNE MAYES: I beg the Court's indulgence. That is all I have.
THE COURT: Y'all want to be heard?
BOYD YOUNG: No, sir.
THE COURT: Mr. Smith, the Court will find you qualified as a Juror based on your responses and questionnaire and the questions here today. What that means is you are going to pay attention to the website again. And watch the instructions for qualified jurors. Check it tonight, it will tell you to either check back or come in. When it says please report back to the courtroom at such and such time on such and such date, follow those instructions.
JUROR: Yes, sir.
THE COURT: Also you live up to your oath to not talk about the case, do not let anybody talk to you about the case, not to do any independent researching, not perusing the media and publicity. I want you to decide this case on the information that you receive here in the courtroom while it is being presented to you under oath. Not unsupervised outside of the courtroom.
JUROR: Yes, sir.
THE COURT: Can you do that?
JUROR: Yes, sir.
THE COURT: See you soon. Thank you, sir.
JUROR: Thank you, sir. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, let's bring in 355. Mr. Young, the box is empty and going away tomorrow.
BOYD YOUNG: Yes, sir. Thank you. (Whereupon, Juror 355, Lashonda Roberts entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ma'am, good afternoon, good morning still.
JUROR: Good morning.
THE COURT: How are you doing today?
JUROR: Good, how are you doing.
THE COURT: My name is Judge Griffith, I have introduced myself several times. I remind you, you are under oath. I want you to say and spell your name so that Ms. Holston can detect whether or not you are speaking loud enough in her microphone.
JUROR: Okay. L-A-S-H-O-N-D-A; R-O-B-E-R-T-S.
THE COURT: Ms. Roberts, I am going to ask you these same questions I have asked other jurors. You took an oath Monday when I was in the other Court House with you. Have you talked to anybody about this case since that day?
JUROR: No, sir.
THE COURT: Has anybody tried to talk to you about the case since that day?
JUROR: No, sir.
THE COURT: There has been publicity by the media, social media, news media, whomever, four years ago, several weeks ago, last ten days or so. I also read you the five indictments in open court, to all the jurors, information presented to jurors. It was a notice document, Mr. Jones is presumed innocent. I want you to tell me if you have heard any information about this case in any manner whatsoever. Has that information caused you to form an opinion as to what happened?
JUROR: No.
THE COURT: So you answered no?
JUROR: Uh-uh. (Nods head in the negative.)
THE COURT: I need you to answer yes or no because she is writing it down.
JUROR: The answer is no.
THE COURT: All right. You have not formed an opinion?
JUROR: Oh, do I have an opinion?
THE COURT: Yes.
JUROR: Oh, yes, I do have an opinion, yes. I am sorry.
THE COURT: Is your opinion about what happened?
JUROR: Yes.
THE COURT: What do you think happened. And there is no wrong answer, please understand that. I want to know what is your opinion about what you believe happened? You are not going to get in trouble for this because I didn't tell you to not pay attention to the publicity until Monday so there is a lot out there before. So I want to know what your opinion is.
JUROR: My opinion, really, I really don't know.
THE COURT: If you have one kind of explain to me. It is fine, I promise you you are not going to get in trouble. I just need to know it.
JUROR: I don't have no opinion. I have an opinion but--
THE COURT: If you don't tell me then I can't decide whether or not you can be fair and impartial because that is what I am looking for. If you have got presupposed opinion that will prevent you from being fair to both the State and the Defense. We have got two sides in here and I am trying to pick a fair jury. And if you have made up your mind about as to what happened I need to know it. Okay. It is okay, I just need to know what your opinion is.
JUROR: Well, my opinion, it was wrong, what happened.
THE COURT: Okay.
JUROR: Very hurtful about it.
THE COURT: It was tragic, wasn't it?
JUROR: Yes.
THE COURT: Is that your opinion?
JUROR: Yes.
THE COURT: Anything else? Have you made up your mind as to what the punishment should be?
JUROR: Yes.
THE COURT: What would that be?
JUROR: Life.
THE COURT: Do you have a religious or moral or personal belief that you could not give the death penalty?
JUROR: I just don't believe in it.
THE COURT: You don't believe in it?
JUROR: No.
THE COURT: So you consider yourself, I gave you three types, you are a type two?
JUROR: Yes.
THE COURT: You are locked down on that?
JUROR: Yes.
THE COURT: Okay. That is fair enough. That is another personal belief opinion that I was going to ask you about. You are telling me you are going to be stuck on type two no matter what you hear, it was tragic, the children are gone and that is awful, they are innocent. You are a type two and you want to see the life sentence?
JUROR: Yes.
THE COURT: Then that would allow me to say, thank you for coming and I am going to excuse you from being a Juror. Thank you very much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: The last one of this panel, bring them in. (Whereupon, Juror 65, Kayla Burgess entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good morning, Ms. Burgess. I want you to say and spell your name for Ms. Holston's benefit to make certain the microphone is picking you up.
JUROR: Kayla Burgess. K-A-Y-L-A, B-U-R-G-E-S-S.
THE COURT: Ms. Burgess, I asked you, I am asking the same question to all the jurors, not because of something anybody has done but since Monday when I asked you to take an oath to not talk about the case, have you talked about the case with anybody?
JUROR: No, sir.
THE COURT: Has anybody tried to talk to you about the case?
JUROR: Yes.
THE COURT: Have they asked you questions about it?
JUROR: Yes.
THE COURT: What was your response?
JUROR: I just didn't really, I just didn't really engage in conversation.
THE COURT: Did you tell them you were told not to talk about it?
JUROR: Yes.
THE COURT: I want yes or no so she can take it down. The lawyers need to hear you. Now, in this case a lot of publicity out there, social media, news media, all sorts of attention, talk, four years ago, several months ago, over the last ten days, the weekend before we came into court on Monday. I in fact read the five indictments to the entire jury panel. Everybody, if they were listening, I told them to listen, heard the allegations the State is making. That is information. Has any of the information you have received, heard or otherwise come into possession, has that caused you to form an opinion as to what happened in this case?
JUROR: Yes.
THE COURT: What do you think happened? Remember, I told you, this is personal beliefs, opinions, I am not worried about whether you are right or wrong because your answers are truthful and that would be right.
JUROR: Okay.
THE COURT: What do you think happened?
JUROR: Personally, just based on what I heard and the news media, I do have an opinion of guilty.
THE COURT: Okay. And you understand you believe he is guilty?
JUROR: Yes, sir.
THE COURT: Now, can you identify yourself as a type of Juror, I gave you that list?
JUROR: Yes.
THE COURT: Which one?
JUROR: I think I would be Juror number one.
THE COURT: Juror number one?
JUROR: Yes.
THE COURT: Are you pretty hard on number one?
JUROR: Yes.
THE COURT: You think he did it because of what you have already heard?
JUROR: Yes.
THE COURT: Fair enough. That is enough for me to say thank you for coming. And you are excused from jury service.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Do y'all want to get that next panel in.
BOYD YOUNG: Are they here?
THE COURT: I don't know, if they are here we can go ahead and read the instructions and then take our break.
BOYD YOUNG: Sure.
THE COURT: Are they all here?
BAILIFF: We are missing four.
THE COURT: We are missing four.
BAILIFF: We are missing three of this panel.
BOYD YOUNG: I would give them a few minutes.
THE COURT: I will give them a few minutes. Y'all want to sit here for a few minutes and then we will take our break or do y'all want to take a break and come back in in a few minutes.
BOYD YOUNG: I think we will just take a break.
THE COURT: It suits me, I don't care.
(Whereupon, a short break was taken.)
THE COURT: All right, let's bring them in. (Whereupon, Juror 39, Donnie Blackmon; 14, Dawn Applegate; 370, Roger Sandy; 481, Reba Williams; 44, Amy Boozer; 325, Tina Penn; 425, Robert Tate; 417, Joseph Straczek entered the courtroom.)
THE COURT: Thank you for coming in. We got all eight of you, welcome back to the courtroom. Several things are going to happen. I am going to read you a summary of the procedures and the aspects of criminal law. I want y'all to consider it, sent back outside to read over potential witness list as well as a three potential types of jurors. And then we will come back in, you will be placed under oath momentarily. When you are brought back in you are asked about anybody communicate with you and such as that. The cameras aren't in the courtroom, they are off. No cameras are going right now, nobody will get their picture made so don't worry about that. The Clerk's office is going to get lunch for y'all. I heard the food was really good yesterday. Now when you come back in and asked questions, a lot of the questions are about your personal beliefs and opinions. So candid, truthful answers, there are no wrong answers. Okay. I need to know your beliefs to see if you are suitable to be a qualified Juror. Okay. Madam Clerk, will you place the group under oath.
(WHEREUPON, the jury was sworn at 11:44 a.m.)
THE COURT: Ladies and gentlemen, you have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Judge Eugene Griffith, I am the presiding Judge for the trial. Mr. Jones has been 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 seek the death penalty. Now 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 to the standard of proof called beyond a reasonable doubt. In most criminal cases Judges determine the punishment upon a conviction.
But in a Capital case the jury determines the punishment. In a Capital case the trial is divided into two parts potentially, the guilt or innocence phase and if necessary 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 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 doubt the jurors are required to consider any and all mitigating evidence or circumstances. Jurors must consider any mitigating facts that would support a sentence other than death. Even if no mitigating circumstances exist jurors are not required to impose the death penalty. In order for a sentence of death to be imposed the verdict must be signed by all twelve jurors. If jurors unanimously decide to sentence a Defendant to life without parole sentence then a sentence of life without the possibility of parole sentence will be imposed. In this case the State has indicted five counts of murder and has notified Mr. Jones that it intends to seek the death penalty. Mr. Jones has entered a plea of not guilty by reason of insanity. In this case you may hear testimony and evidence showing many things. A wide variety of testimony may be presented to you in this trial.
Depending on testimony I will instruct you on how to consider and evaluate that testimony, whether it be defined as evidence of aggravating factors, evidence of mitigation, which are 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 in I am not able to tell you the exact instructions of the law I will give you. Now, I will bring you back in one at a time and ask you a question, can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider the evidence consistent with my instructions. That will be the question imposed to each of you. Now, retire to the jury room, do not discuss the case among yourselves. I will bring you back in one at a time, enjoy the food that the Clerk has provided to y'all. Thank you. (Whereupon, the jury panel was excused from the courtroom.)
THE COURT: Let's bring in 39. (Whereupon, Juror 39, Donnie Blackmon entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing.
JUROR: Fine and you?
THE COURT: All I know is you are 39.
JUROR: I wish.
THE COURT: Mr. Blackmon, you are number 39. I want you to say your full name and spell it for the record to make certain Ms. Holston is picking up your voice on the mike for one and so she makes a record of that also.
JUROR: Donnie Lewis Blackmon. B-L-A-C-K-M-O-N.
THE COURT: Mr. Blackmon, I asked you to take an oath last Monday to not talk about the case, have you talked about the case?
JUROR: No, sir.
THE COURT: Anybody tried to talk to you about the case?
JUROR: My wife.
THE COURT: Did you tell her you couldn't, did you not discuss it with her?
JUROR: No.
THE COURT: Now, there has been a lot of publicity about the case, several years ago, several months ago, over the last ten, twelve, fourteen days, since the process, since the case has been called. And when you came in Monday I also published or read the five indictments of the accusations of, for murder against Mr. Jones. Considering any and all information you received prior to walking in the courtroom today, any of it, where ever you got it, whenever you got it, have you formed an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: You not formed an opinion whatsoever?
JUROR: No.
THE COURT: Now, I asked you to consider and decide, consider and to bring to me what on your schedule, your calendar that if you were selected as a Juror that we may impose upon any of your plans commencing, say Monday and through late May, early June. What have you got on your calendar?
JUROR: Other than meeting my maker nothing that I know of.
THE COURT: So you would be available if so selected?
JUROR: Right.
THE COURT: Now, subject matter in this case involves the death of five children. I have not seen all the evidence but the lawyers have made representations to me, Judge, this is difficult testimony, it is graphic, it is harsh, it is unpleasant for us to use but they have to use it. I ask you, is testimony, evidence of subject matter that would be considered difficult and unpleasant, and that subject matter involving the death of five children, can you consider unpleasant testimony and still get, be fair and impartial to both sides?
JUROR: I believe so.
THE COURT: Fair enough. Now, I gave you a list of potential witnesses. Did you read over that potential witness list?
JUROR: I did.
THE COURT: All of those witnesses won't be called, many of them will. Both sides have to alert me if they potentially could be called. Do you know any of those folks?
JUROR: No, I don't.
THE COURT: Not a one?
JUROR: Not a one.
THE COURT: Fair enough. I also just gave you instructions, just a few minutes ago about the procedure, process and the State's burden of proving the case beyond a reasonable doubt and phase one. If the State were to meet that burden and find, find the Defendant guilty then goes into phase two which is the sentencing phase. Considering what you know which is very little about this case, if you were put in a position of having to decide a case like this what type of Juror would you classify yourself, how would you identify yourself in one of those three types of jurors?
JUROR: I guess it would depending on the evidence and based on the evidence, if the death penalty warranted, I don't think I would have a problem.
THE COURT: Now, so you would identify yourself as type one, two or three? I will show it to you again so you can review it.
JUROR: I didn't see this before.
THE COURT: You didn't see that before?
JUROR: No.
THE COURT: Read over it right now, I want you to tell me what you are, I am sorry.
JUROR: I would have to say type three.
THE COURT: Type three. All right. Now, I wrote this and I know what I was inquiring and trying to suggest. How do you identify as a type three, what does that mean to you?
JUROR: I would have to hear all the evidence and any mitigating circumstances.
THE COURT: So you want to hear it all, good and bad?
JUROR: Right.
THE COURT: Before you make up your mind?
JUROR: Right.
THE COURT: All right. I want to go back to the two phases again because thus far, I want to explain some things to you and ask you can you do this and can you do that and be fair to both sides, fair and impartial, fair to both sides. In the guilt or innocence phase, where they are trying to prove the murder, the State has alleged five counts of murder, the State has to prove its case beyond a reasonable doubt of all the elements. Mr. Jones seated here in the courtroom and all the way through the trial is presumed innocent until the State meets its burden of proof and a jury returns a unanimous verdict, they are convinced beyond a reasonable doubt of his guilt. Defenses can be presented during that phase of the case and if the defenses are presented the jury considers those. I am going to read all potential defenses and come back and ask you could you consider any of them. Potential defenses would be identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, entrapment, defense of habitation, duress or alibi. Those are potential defenses that are outlined in my statute books behind me available to Defendants that want to claim them. Not knowing what testimony will be presented, if any aspects of testimony to support the instructions of one of those, because I wouldn't instruct on if it weren't relevant, but if some aspects were relevant I would instruct on those defenses. Can you give meaningful consideration to any testimony and evidence in this case, consider my instructions that the State bears the burden of proving the guilt beyond a reasonable doubt of the murder but also consider my instructions on any of those appropriate defenses if the evidence supported it. Can you do that?
JUROR: I could.
THE COURT: Can you be fair and impartial in doing so to both the State and the Defense?
JUROR: I could.
THE COURT: Now, Mr. Jones has claimed or already suggested, he has stated that he is entering a plea of not guilty by reason of insanity. And by that plea it involves two of the defenses. Now because of the plea four potential verdicts will be suggested or presented to the jury for their consideration and their determination. Four potential verdicts could be guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty whatsoever. Those are four potential verdicts that may be presented to the jury in this case. Can you give meaningful consideration to each and every one of those potential verdict forms after considering my instructions explaining those potential verdicts and evaluating the testimony and evidence presented to you?
JUROR: I could.
THE COURT: Can you be fair and impartial to both the State and the Defense in doing so?
JUROR: I could.
THE COURT: Now, if not guilty or not guilty by reason of insanity is found the case ends. If the jury finds the State has proven its case beyond a reasonable doubt guilt is found and determined, we move into phase two which is the sentencing portion phase of the trial. In that portion the State is then responsible for proving an aggravating factor. I am going to name five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder and multiple murders. Those are potential aggravating factors. The State must prove one of those beyond a reasonable doubt for it to be in a position to ask a jury to impose a death sentence. Do you understand that?
JUROR: I do.
THE COURT: Do you understand that mitigating circumstances and evidence will be presented also during the trial and during the sentencing phase by the Defense. Mitigating factors need not be proven, they are to be considered if shown to the jury. I am going to give you a list of mitigating factors. Okay.
JUROR: Okay.
THE COURT: The Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The Defendant acted under duress or under the domination of another. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct 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 the Defense could present on. Also there are non-statutory reasons, evidence, such as maybe Mr. Jones had a troubled childhood, came from a broken home, anything in his life up from the time of the crime can be considered by the jury in evaluating whether to give a life sentence as opposed to a death sentence. Do you understand that?
JUROR: Yes, sir.
THE COURT: Do you understand that during the sentencing phase jury's determine the punishment, two choices only, death or life. Do you understand?
JUROR: Yes.
THE COURT: You also understand that the death penalty is not an automatic decision. Do you understand?
JUROR: I do.
THE COURT: It is not automatically given because the State proves several things. It is considered by the jury if the State presents beyond a reasonable doubt evidence of an aggravating factor. Now, can you give meaningful consideration to the State's proof beyond a reasonable doubt of an aggravating factor. If they don't prove an aggravating factor beyond a reasonable doubt they are not entitled to ask a jury to impose a death sentence. If they meet that burden they are entitled to ask. During that presentation also the Defense presents on those mitigating factors. Can you give meaningful consideration to any mitigating factors, whatever they are in reaching your decision as to whether to vote for a life or death sentence?
JUROR: I could.
THE COURT: Do you have any religious, moral or personal belief which would you prevent you from imposing the death sentence?
JUROR: No.
THE COURT: Do you have any religious, moral or personal belief which would prevent you from imposing a life sentence?
JUROR: No.
THE COURT: Do you know of any reason whatsoever you couldn't be fair to both the State and the Defense?
JUROR: No, I don't.
THE COURT: Okay. Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, sir. Thank you for being patient with us and putting up with us, it has been a slow process. I appreciate you hanging in there. This is the time that the Judge lets us talk to you about your views of the death penalty for murder. And I am going to put you in a situation. In your mind I want you to pretend that you are just Governor for a day, Governor of South Carolina for a day and you had a Bill on your desk, we can have the death penalty or not have it. Which way would you go?
JUROR: I would have to say we would have it.
BILL MCGUIRE: Okay. And that implies that there is a purpose, the death penalty, having it on the books to serves a purpose. What purpose are you thinking about when you say we should have it.
JUROR: I would think depending on the circumstances, it needs to be.
BILL MCGUIRE: It needs to be like some people deserve that punishment?
JUROR: Yes.
BILL MCGUIRE: That it is the ultimate punishment but sometimes the crime is so bad it warrants it?
JUROR: Not necessarily. If the crime warrants it it does, if it is the ultimate crime then it should receive the ultimate punishment.
BILL MCGUIRE: Right. A lot of people say it should be reserved for the worst of the worst, does that describe you?
JUROR: That's correct.
BILL MCGUIRE: The murder of five innocent children, does that fit into the category of--
RICK HUBBARD: Objection.
THE COURT: Remember my instructions and phrase your question in that fashion.
BILL MCGUIRE: Sure.
BILL MCGUIRE: There are some folks that would say, you know, I don't need to know the specifics of the crime, I don't need to know, I don't need to know if the killer was white or black or grew up poor or grew up wealthy or he was a family member of the children or if he was a stranger. I don't need to know these facts. And I don't need the facts of the killing, I don't care if the kids were drowned or shot or strangled. What I need to know are the basics and that is if all the evidence points beyond a reasonable doubt that the person knew what they were doing and deliberately and intentionally with an evil heart took the lives of five innocent children. That person would say the death penalty--
RICK HUBBARD: Objection, form of the question.
THE COURT: I am going to allow it.
BILL MCGUIRE: What do you say, sir.
JUROR: Depending on the circumstances and the evidence. If it is warranted that he receives the death penalty then he should. If he can't, if the Court can't prove that he is warranted the death penalty he shouldn't get it.
BILL MCGUIRE: Okay. Well, going back to if you were Governor for a day, and your Legal Aid came to you and said, here is a Bill that the General Assembly has put before you and it would say without the regards of the facts in the case, the background of the Defendant, we are going to have a law and it says, death penalty is automatic for intentionally taking the lives of children. What would your position on that Bill do?
JUROR: I would have to say no, depends on the evidence.
BILL MCGUIRE: Okay. Would a life sentence be sufficient, in your personal view, in a situation that we have discussed, the intentional killing of innocent children, letting somebody spend their years in prison, would that be sufficient to punish that kind of killing?
JUROR: Not knowing all the evidence involved, I could not honestly answer that.
BILL MCGUIRE: I understand. That is a fair answer. When it comes to fixing the punishment for a killer who took the lives of innocent children, would their background, their character, how they grew up, their walk in life, would that be relevant to fix a punishment for that kind of killing?
JUROR: I would have to say it would.
BILL MCGUIRE: Okay. And why is that, why would that be important?
RICK HUBBARD: Your Honor, I object. I don't know that the Juror has to give an explanation as to why.
THE COURT: -- I sustain, move on.
BILL MCGUIRE: Mr. Blackmon, what I am going to do, I am going to get you to kind of walk with me through this process and I am going to explain a couple of legal principles to you and if I say something you don't understand or if I ask a bad question and you want to ask me questions you start asking me questions. Okay, is that okay?
JUROR: Correct.
BILL MCGUIRE: In the first phase of the case the Judge talked to you about some potential verdicts and I am going to talk to you about one of them. Not guilty by reason of insanity. In a case that we just talked about earlier, potential killing of innocent children under the age of 11, all of them. Some people might say, I can't consider not guilty by reason of insanity as a verdict because there is just no punishment attached to it, it is like a copout of letting the guy off. What is your view on that statement?
RICK HUBBARD: Your Honor, I am going to object to the form of that. It was an added phrase in there.
THE COURT: I am not sure I heard that, you want to be heard on that.
RICK HUBBARD: If you can just reask it.
BILL MCGUIRE: I am confused as well so I am probably just say the same thing.
BILL MCGUIRE: In that case that we have been talking about, intentional killing of innocent children, the aggravating facts would be multiple children, they are all under 11. Okay. The Judge talked to you about the first phase and there could be potential verdict of not guilty by reason of insanity. Some folks who sat right there this week or this last two weeks would say, you know, that verdict sounds like it is a copout, an excuse, there is no punishment attached to it, just letting somebody go really. What do you think about that?
THE COURT: You want to hear it?
RICK HUBBARD: Yes, sir.
THE COURT: Okay. He wants to be heard on this. Mr. Blackmon, I need to put something on the record with the lawyers. I will have you step out and have you right back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Hubbard.
RICK HUBBARD: Thank you. Two things, one he began a question, he says first phase but he talks about aggravating circumstances in the first phase. Highly confusing right as he is phrasing his question.
THE COURT: I thought he had gone on to the second phase.
RICK HUBBARD: He was in first phase, talking about NGRI. But starts with aggravating circumstances. Completely confusing and then is coming to a question where it is like, it is like a baiting question, on the NGRI question that we have discussed already. Because he said let him go. And, Judge, that is, that baits the--
THE COURT: Here is what I heard that I hadn't heard on all the other questions, the language. In the guilt or innocence phase, the State has got to prove the guilt. Some people say that NGRI would be a copout or excuse but with no punishment attached. You added that. And I think that is what, you have not been adding that to it each time. You have been saying it is an excuse or copout. Give me your thoughts, that is what y'all have been doing. And they have not been objecting to it.
BOYD YOUNG: What I have been doing is saying, understanding, you won't sentence. The trial will be over, you won't sentence.
RICK HUBBARD: That is not the question.
THE COURT: That is not what he asked, you asked something different. But I am going back to Mr. McGuire. I think the question could be that NGRI is an excuse or a copout, give me your thoughts and leave off with no punishment attached.
BILL MCGUIRE: And if he is not guilty there is no punishment attached. That is correct.
THE COURT: No, no, no. NGRI, no punishment attached.
BILL MCGUIRE: There is no punishment if he is found--
THE COURT: This guy doesn't know that. Y'all have been trying to get me to tell them the truth, I think that is y'all's words each and every time. There is something attached, you want me to tell the jurors what that is. I have said, no. I want you to limit it without addressing what is the no punishment. What actually happens. That is what is baiting and they are asking you the question. An excuse or a copout, give me your thoughts.
BILL MCGUIRE: So the Court's ruling is we can't use the phrase, with no punishment.
RICK HUBBARD: Right because Mr. Young was not doing that. He was saying something. The trial is over, the jury doesn't get to sentence.
THE COURT: Correct.
RICK HUBBARD: I would object to that added phrase too because it has got to be just like you said, a copout. Just ask them if you can consider, throwing in there is a conclusion and that is the baiting part that is what happens.
BILL MCGUIRE: I will just use the Court's words.
THE COURT: I think he lead into the question differently. If you use my words I think that will still--
RICK HUBBARD: And just also, on the first part, started with aggravating circumstances and then led into that.
BILL MCGUIRE: I agree, I misspoke, I didn't mean to do that. That is my fault.
THE COURT: You are asking about the aggravating, the sentencing side. Bring him back in.
BOYD YOUNG: Your Honor,--
THE COURT: He is arguing his, you sit down.
BOYD YOUNG: For the record, I just need to make sure, for the record, we understand that we still have motion number 96 and 100 pending. For the record, I wanted--
THE COURT: I have not addressed that yet. Bring him in, you worry me to death.
(Whereupon, the Juror entered the courtroom.)
THE COURT: CONTINUE EXAMINATION
BILL MCGUIRE: So, Mr. Blackmon, I want to bring you back to looking at the first phase of the trial. The first phase of the trial is like any other trial you see on TV, did they get the right guys beyond a reasonable doubt. That sort of thing. Are you with me?
JUROR: Yes.
BILL MCGUIRE: And in this case, because there is a plea of not guilty by reason of insanity, that could be a potential verdict in the first phase. Are you with me?
JUROR: Yes.
BILL MCGUIRE: Okay. And some folks would say, you know what, the Judge talked to you about horrific evidence, graphic evidence, children, multiple children under 11 that in that type of case knowing that not guilty by reason of insanity would just end the trial right there, that we would not go into a penalty phase. Some people might say, I can't consider that verdict if it doesn't allow us to get to that second phase, the punishment phase. What do you think about that?
JUROR: I think it depends on the evidence presented.
BILL MCGUIRE: Okay. Would you be open to hearing from maybe expert witnesses about a person's mental state?
JUROR: I would.
BILL MCGUIRE: And if that evidence rose to a level to satisfy you that the person did not, because they had a mental disease or defect in their brain, that they didn't understand or appreciate the legal or moral wrong of their actions. If you were convinced of that you could consider and vote for not guilty by reason of insanity?
JUROR: I could.
BILL MCGUIRE: If you were so convinced. Now, I want to take you and let's you and I focus on that second phase, the punishment phase. Okay. We might not ever get there but if we do I want to talk to you a little bit about how that works and you ask me questions if I say something that doesn't make sense or is a bad question. Okay.
JUROR: Yes.
BILL MCGUIRE: If we were to get to the sentencing phase, the punishment phase, a lot, the Juror becomes less of a group and more of individual people.
RICK HUBBARD: Objection to that. I object to that.
THE COURT: Rephrase your question.
BILL MCGUIRE: The law is that each individual Juror has to reach their own individual position, their individual moral judgment with regard to sentence, with regard to punishment. Is that concept of individuality something that makes sense to you?
JUROR: I think every man should have the right to choose his own mind.
BILL MCGUIRE: Right. And the rules according to the law is, that if a Juror reaches their own conscientious individual moral judgment it is against the rules and unlawful for them to change that position just to join the majority. Did you know that?
JUROR: I didn't know that but I would agree with it.
BILL MCGUIRE: Does it make sense?
JUROR: Yes.
BILL MCGUIRE: Okay. So you would agree that once a Juror reaches their conscientiously held position and it is what they think is right, it would harm their conscience to change their position. You agree that it would be wrong for them to just join the majority for the sake of joining a larger number?
JUROR: That's correct.
BILL MCGUIRE: Okay. If you saw somebody, it was clear to you that they reached their individual moral judgment and let's say they wanted to vote for the life without parole penalty. And you saw that it would harm their conscience to change that position, as they maybe contemplated the rest of their life, they just don't want to burden the black mark of their soul of having to kill another human being by authorizing their death through the death penalty and you saw other people, maybe a majority being coercive or bullying or forcing or trying to force them to change that position--
THE COURT: Finally ask the question.
BILL MCGUIRE: I will tell you this, it is wrong for that to happen. Could you step in and stop that and say, hey, this person, we have a duty to respect their position and could you send a note out to the Judge saying, Judge, civility has left the jury room, it is coercive here. Could you send a note saying something wrong is happening, could you come in here and help us?
JUROR: I could, I don't believe in bullying and a man has a right to his opinion.
BILL MCGUIRE: And you expect people to respect your opinion?
JUROR: Right.
BILL MCGUIRE: And the rules are you have to respect other peoples opinions?
JUROR: That's correct.
BILL MCGUIRE: Thank you, sir. Did you know any other jurors when you came in Monday, last week when the big panel came in. Did you recognize or know anybody?
JUROR: I thought I recognized one guy.
BILL MCGUIRE: Who was that?
JUROR: I think his name is Author Chavis.
BILL MCGUIRE: Are y'all friends or you just kind of know each other?
JUROR: We are members of the same lodge but we are not close.
BILL MCGUIRE: Mason Lodge?
JUROR: Mason.
BILL MCGUIRE: Okay, so you know each other there but you don't socialize together, you don't go out and do things together?
JUROR: No.
BILL MCGUIRE: Okay. Would the fact that he is on the jury, if he had an opinion regarding the evidence or the sentence, would you go with his opinion rather than stick to yours.
JUROR: I would have to say I would stick to mine. His opinion is his and mine would be mine.
BILL MCGUIRE: Right, his would be his, yours would be yours and he wouldn't impact your decision making.
JUROR: No.
BILL MCGUIRE: Thank you, sir.
THE COURT: All right, Solicitor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: How are you, Mr. Blackmon.
JUROR: Fine.
RICK HUBBARD: You are doing all right. My name is Rick Hubbard, I am the Solicitor. I just have a few questions. I have been listening to your responses and it sounds like and please correct me if I am wrong but in that first phase, where we are talking about whether the Defendant is guilty or one of those other verdicts is better suited, you would want to hear all the facts.
JUROR: All of them.
RICK HUBBARD: And we got to that second phase you would want to hear all the aggravating and mitigating circumstances as well?
JUROR: That's correct.
RICK HUBBARD: Now, there is one thing that I don't think was brought up. If you are in that second phase and you and all of those other jurors decide death is appropriate, on the verdict form, it is different than all other verdicts forms, all twelve jurors have to put their name down on it. The reason I am asking, some people will tell you your thoughts but they don't want to put their name on it. Could you put your name on that verdict form if you thought it was the right thing to do?
JUROR: I would.
RICK HUBBARD: Mr. Blackmon, I think that is all I can ask you, I think that is all anybody can ask of you. Thank you, sir.
THE COURT: Y'all want to be heard on the record?
RICK HUBBARD: No sir, nothing for Mr. Blackmon or the court.
THE COURT: Mr. Blackmon, I appreciate you coming in, I appreciate your patience with the process. You are deemed by the Court has a qualified Juror meaning, I will need you to come back in here during the selection process. Your instructions when to come back to court will be on the list of the qualified jurors. Okay.
JUROR: Yes, sir.
THE COURT: You will look on the same website and determined when you came in today. But not looking under your panel number but qualified jurors are to report to the courtroom at such and such date and time. Those are your instructions when to come back will be on that website. Can you get there?
JUROR: I got that.
THE COURT: Until such time as you are called back in, if you are selected and seated as a Juror, you are not to talk about the case, do not discuss it with anyone, not answer any questions, not to do any independent research, not to peruse or evaluate any of the news reports, social media reports, any publicity whatsoever. I want you to take the oath, you will be under your oath to do this, decide this case on what you hear inside the courtroom and to totally ignore anything that is not heard in the courtroom. So outside the courtroom is off limits, out of bounds. It is not even under oath, it is not supervised, not on the record. I want you to consider and make your determination if you are selected as a Juror things in the courtroom, not outside the courtroom. Can you do that.
JUROR: I can.
THE COURT: Thank you so much for coming this afternoon.
JUROR: Thank you, Your Honor. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are we ready on 14?
ROBERT MADSEN: Yes, sir.
THE COURT: Bring them in. (Whereupon, Juror 14, Dawn Applegate entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Ms. Applegate?
JUROR: Yes, sir.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: You were placed under oath earlier, you were placed under oath Monday. I am asking the same questions in the same order regardless of when you came in. First of all, say and spell your name in the microphones because you are going to answer to Ms. Holston, she needs to hear everything you are saying or she is going to fuss at me.
JUROR: Okay. Dawn Applegate. Applegate, A-P-P-L-E-G-A-T-E.
THE COURT: I am looking for candid, truthful answers. Okay. And so I am going to ask you the first several series of questions and then the lawyers may get an opportunity to follow-up with some of my questions. Okay.
JUROR: Okay.
THE COURT: Now, I ask you to take an oath not to talk about the case last Monday. Have you talked to anybody about the case?
JUROR: No.
THE COURT: Has anybody tried to talk to you about the case?
JUROR: No.
THE COURT: Now, other than your schedule at work or home, you got to tell them you were going to court.
JUROR: Yes, sir.
THE COURT: Other than that, no other conversations?
JUROR: No, sir.
THE COURT: Now, there has been publicity, several years ago, several months ago, a week or so ago, all during the last week regarding this case, on social media and on public news. I, in fact, read the five indictments to the entire jury pool.
JUROR: Correct.
THE COURT: And I told you to listen.
JUROR: Yes.
THE COURT: Now, information that you have received whenever you got it, where ever it came from, I don't care, whatever you heard, received information for yourself about this case. Has any of that information caused you to form an opinion about what has happened?
JUROR: No, sir.
THE COURT: You have not formed an opinion whatsoever?
JUROR: No.
THE COURT: Now, in the case I asked you also to tell me about your work schedule, home schedule, vacation schedule. What have you got on the calender over the next, say three weeks?
JUROR: Several meetings. I travel all around the State of South Carolina so I have some meetings up in the upstate coming up next week. And then the following week I have some meetings in Myrtle Beach. I also have, not until July, but I have a meeting in Scotsdale, Arizona.
THE COURT: Okay. Now, if you were selected as a Juror could you reschedule those meetings. I mean, Scottsdale, Arizona, that would be a lot more difficult to reschedule. And so I don't plan on the case continuing that far, the lawyers have assured me we should be done way before then. My daughter is getting married in July so there is some, some of the parties involved have vacations coming up in July. So we kind of intend to get our work before then. So, July is not going to be threatened. Your Scottsdale trip should be safe.
JUROR: Okay.
THE COURT: Now, the meetings you have over the next couple of weeks, can you reschedule them if you were so selected?
JUROR: I believe that I can, I am not necessarily the primary presenter for those, some I can complete remotely. So depending on time of day I could call in for conference calls, yes.
THE COURT: Fair enough. Now, I gave you a potential witness, rather lengthy. Did you study that?
JUROR: I did.
THE COURT: Did you know anybody on it?
JUROR: I do, well, potentially one.
THE COURT: That is what I want to know because if you have a connection to one of them and that is going to create a problem I need to know about it. Who is it?
JUROR: Lee Toste, Leigh Ann Toste.
THE COURT: And how do you know her?
JUROR: If she is the same person our son's played soccer together two years ago.
THE COURT: So a Rec league?
JUROR: The GPS Lexington. It is Global Premier Soccer.
THE COURT: Like a travel team?
JUROR: Yes.
THE COURT: Okay.
JUROR: They are not on the elite team but they do travel to Savannah, Charleston.
THE COURT: I understand, so they are trying to hone their skills to be ready to play in high school?
JUROR: Yes.
THE COURT: Or then college?
JUROR: For some, not for my son.
THE COURT: Okay. I had children that did some of that softball and baseball and basketball. And it is quite fun.
JUROR: Yes.
THE COURT: The fact that you have been a parent, a team parent, would that create an issue for you if she had to testify. I don't know if she will be called, I don't know. If she were called to testify would that create an issue for you to be fair and impartial considering she may present testimony?
JUROR: No.
THE COURT: Other than her nobody else?
JUROR: No, sir.
THE COURT: I gave you an overview when y'all came in and sat down a few minutes ago of the criminal process, procedures for a Capital case. Two stage process if necessary. Stage one is guilt or innocence. If guilt is determined, if the State meets its burden of proof then we go into the sentencing phase. Jurors consider mitigating factors and if the State can prove an aggravating factor. I also gave you a sheet to try to show you the three types of potential jurors that we normally see in Capital cases. Can you, after reviewing that sheet, now did you understand my instructions?
JUROR: I did.
THE COURT: Did you understand the three types of jurors?
JUROR: Yes.
THE COURT: Can you identify yourself as one of those three types?
JUROR: I believe I am a third.
THE COURT: You are a third?
JUROR: I believe so.
THE COURT: And I wrote this and I kind of know what I meant, what do you think I meant there?
JUROR: That, not only would we need to have determined whether or not Mr. Jones is guilty but we also need to be able to hear the evidence in terms of determining whether there was some mitigating factor that led to that but we need to hear the evidence in order to make that final decision.
THE COURT: That is as good a summary as I have heard. Now, I am going to go back and break down the two stages a little bit more to make certain you can consider other aspects of the trial. In the first phase, guilt or innocence, that is all will be determined. The State has got the burden of proving the murder beyond a reasonable doubt. They go first, they present first. Defenses are allowed in cases like this and I am going to read all the potential defenses and ask you can you consider all of them if the evidence supported them.
JUROR: Okay.
THE COURT: 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 allowed by our statute behind me right here. Can you, if the evidence supports and presented and the Court instructed the proper aspects of any of those defenses, can you consider the burden of proof on the State to prove its case beyond a reasonable doubt of the murder but also consider any aspects of any defenses that is presented to the jury, consider my instructions. But most importantly consider the evidence, testimony presented consistent with my instructions and be fair and impartial in this case?
JUROR: Yes.
THE COURT: You can do that?
JUROR: Yes.
THE COURT: Now, if this case gets, if you get seated as a Juror, because one of the defenses claimed by Mr. Jones, not guilty by reason of insanity, there are four potential verdict forms. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Those are four potential verdicts that the jury may be tasked with finding. Can you be a fair and impartial Juror, consider the testimony and evidence. It is the State's responsibility of proving the case beyond a reasonable doubt, any aspects of my instructions on those respective defenses. Are there any of those four potential verdicts or could you adequately consider all of those four potential verdicts?
JUROR: Yes.
THE COURT: Can you be fair and impartial in doing so?
JUROR: Yes.
THE COURT: Are any of those four potential verdicts that you would not be able to find a verdict on?
JUROR: No.
THE COURT: Now you understand, I will instruct the jury, as a whole, on the aspects of the four potential verdicts?
JUROR: Yes.
THE COURT: Can you be fair and impartial in reaching a verdict in stage one?
JUROR: Yes.
THE COURT: For both the State and to Mr. Jones?
JUROR: Yes.
THE COURT: If the State meets its burden the case goes to phase two, if the State fails to meet its burden of proving the case, the case ends, right there. Go to phase two, the State has met its burden of proving the murder. In stage two the State is then responsible for proving an aggravating factor. I am going to name five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder and multiple murders. Those are potential aggravating factors. The State must prove one of those five beyond a reasonable doubt in order to be in a position to request a jury to impose a death sentence. If the don't prove an aggravating factor beyond a reasonable doubt they cannot ask for the death sentence. Okay. If they do prove, the jury is also responsible for considering all of the mitigating factors that are presented. Potential statutory mitigating factors include, the Defendant has no significant history of prior criminal conviction involving the use of violence against another person.
The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another person and his participation was relatively minor. The 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. The Defendant had mental retardation at the time of the crime. Other evidence that can be considered mitigating, reasons to decide the life sentence include how the Defendant was raised up, his childhood, if he came from a broken home. Any aspects of his life can be considered mitigating. The jurors are presented that type of evidence to consider. Can you give meaningful consideration to my instructions regarding the State's burden of proving the aggravating factor and be fair and impartial?
JUROR: Yes.
THE COURT: Can you also likewise consider the mitigating factors and circumstances, evidence presented by the Defense in assigning value to the mitigating factors, consistent with my instructions on the law. Can you do that?
JUROR: Yes.
THE COURT: Can you be fair and impartial to both sides in doing so?
JUROR: Yes.
THE COURT: Do you understand the death penalty in the sentencing phase is not automatic.
JUROR: Yes.
THE COURT: Do you understand that?
JUROR: Yes.
THE COURT: Now, the jury is tasked with making a decision of punishment. Life without parole or death. No other choices, no middle ground, no other options. One of the two. Do you understand that?
JUROR: Yes.
THE COURT: So can you consider all aspects of my instructions, the testimony regarding the aggravating factors and the State's responsibility to prove that beyond a reasonable doubt, consider mitigating factors and be a fair and impartial Juror in this case to both the State and to Mr. Jones?
JUROR: Yes.
THE COURT: Do you have any personal, religious or moral belief which would prevent you from finding a punishment of death?
JUROR: No.
THE COURT: Do you have any religious, moral, personal belief which would prevent you from finding a sentence of life without parole?
JUROR: No.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: My name is Rob Madsen, I am one of Tim's lawyers. I think you mentioned your son plays for GPS and your daughter does too, doesn't she?
JUROR: Yes, she does.
ROBERT MADSEN: My daughter is T. .
JUROR: I was going to say, you looked familiar. Yes, I have seen you on the sidelines.
ROBERT MADSEN: I think she has played with your daughter some.
JUROR: As a guest player.
ROBERT MADSEN: Year before last. They have moved up, she has moved up. What I want to talk with you about here is the Judge kind of went over with you the law a little bit. What I want to talk to you about is just your personal feelings. So there aren't any kind of right or wrong answers. Okay. I just got to ask you questions to find out what you believe.
JUROR: Sure.
ROBERT MADSEN: Now, I know, I guess a week and a half ago on Monday you stood up and said, hey, I had heard some publicity.
JUROR: Yes.
ROBERT MADSEN: Can you tell me what you heard?
JUROR: It was actually as I was leaving the house and about to turn off the television, it was the news, that local news that comes in when the Today Show is on. And it just said that a jury was being started, that there was jury selection that day.
ROBERT MADSEN: So you didn't hear anything that made you form an opinion or anything like that?
JUROR: I may have heard the case when it originally occurred, but in terms of details or things, no.
ROBERT MADSEN: Could you just tell me your general feelings on the death penalty?
JUROR: As the Judge said, if there are mitigating circumstances that preclude us from determining that a person should be put to death then I think that I could consider that. I think that I can also consider the need to sentence someone to death if they are not those mitigating circumstances.
ROBERT MADSEN: You told the Judge, you said I believe I am a third.
JUROR: Yes.
ROBERT MADSEN: If a third wasn't an option, are you a one or are you a two?
SHAWN GRAHAM: Objection, Your Honor. That is not a proper question.
THE COURT: Rephrase that question.
ROBERT MADSEN: Well, let me ask it this way. Say I waive a magic wand and you have become Governor of South Carolina for a day and they put two Bills on your desk. One Bill has the death penalty and the other Bill gets rid of the death penalty. Which one would you sign?
JUROR: I think in that case I would need to lean towards the life sentence so that not too late to perhaps represent some information and perhaps come to a different conclusion.
ROBERT MADSEN: Would you agree that the death penalty is kind of the penalty of last resort?
JUROR: I guess, yes. That is a tough question.
ROBERT MADSEN: Some people will say it is kind of reserved for the worst or the worst. Would you agree with that?
JUROR: Yes.
ROBERT MADSEN: I wanted to ask you, as the Judge has told you, Tim has plead not guilty by reason of insanity. And so what that means is someone is saying, hey, I have done the acts but because of a mental disease or defect I did not know the legal or the moral wrongfulness of my actions. And some people will say, you know in that situation where someone said I done the action but I can't appreciate the moral or legal wrongfulness of my action. You know, that is just a copout, that is an excuse and I just can't go with that. My question is, is that you?
JUROR: I don't think so.
ROBERT MADSEN: So that is something that if evidence is presented to you you could meaningfully consider that before making your decision?
JUROR: Yes.
ROBERT MADSEN: Let me ask you a little bit, kind of switch it up a little bit and let me kind of put you in the jury box. And I want to talk to you about your feelings of punishment of a guilty murderer of multiple children. So let's make sure we are talking about the same thing. When I am talking about this guilty murderer, I am talking about someone who knew the difference between right or wrong, you heard any evidence of that. You determined that the person knew the difference between right and wrong, that there is no type of defense. So it is not an ID, it is not an accident, it is not self-defense or anything like that. I mean the person intentionally killed multiple innocent children. Are you with me there?
JUROR: Yes.
ROBERT MADSEN: And my question is to you, is after, without hearing anything else what is your feelings on the death penalty as the appropriate punishment for that guilty murderer of multiple children?
JUROR: Yes, that does sound appropriate to me, yes.
ROBERT MADSEN: So you wouldn't want to hear anything else?
JUROR: No, I am sorry. I was assuming that other evidence was presented and that based on all of that evidence we were coming to the conclusion that, indeed, that person did not have any, any other reason than they intended to commit the crime.
ROBERT MADSEN: Right. And I guess is what I am trying to say, as the Judge told you, there is kind of two different trials. There is that first part of the trial.
JUROR: Right.
ROBERT MADSEN: Which is the guilt and the innocence. And like I said, in that situation that I am talking to you about, you and eleven other jurors have determined, you know what, this person is guilty, guilty, guilty, they did it, they intentionally did it, there is no excuse, there is no justification or anything like that. And my question is, you will get some people who will say, you know what, after I have heard all of that I just don't need to hear anything else. For me there are certain crimes that just scream the death penalty and the killing of multiple children is one of those and so I am death all the time. And my question is, is that you?
JUROR: No.
ROBERT MADSEN: And so you could listen to a Defendant's character or background or how they grew up, those would be things that would be important to you to determine the punishment?
JUROR: Yes.
ROBERT MADSEN: Are there cases that you can think of in your mind that you think of, you know what, for me, what I feel personally, it just screams the death penalty?
JUROR: None that I can think of.
SHAWN GRAHAM: Objection, Your Honor.
THE COURT: Okay. She answer none and they have asked that question several times. Okay, move onto something else.
ROBERT MADSEN: And as the Judge told you, the death penalty is never required in any case in South Carolina. You understand that?
JUROR: Yes.
ROBERT MADSEN: Not in this case, not in any other case, not even in the worst case you could imagine, it is never required. You do understand that?
JUROR: Yes.
ROBERT MADSEN: And the State has to prove aggravating factors to the jury, not only unanimously, in other words all twelve jurors have to agree but they have got to prove those beyond a reasonable doubt. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And that is a little different than say, mitigating factors.
SHAWN GRAHAM: Objection, Your Honor, to the language, mitigating circumstances.
ROBERT MADSEN: Aggravating circumstances, sorry.
ROBERT MADSEN: You understand that aggravating circumstances have to be proved beyond a reasonable doubt unanimously to all twelve jurors?
JUROR: Yes.
ROBERT MADSEN: While mitigation is just basically, as the Judge told you, anything that would cause a Juror to want to give someone the life without parole penalty. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And those don't have any burden of proof. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And so they can be different among jurors as to what they find as mitigation. Does that make sense to you?
JUROR: Yes.
ROBERT MADSEN: So in other words, a Juror sitting right here could say, you know what, I saw this spark of humanity, I saw a relationship with his father and because of that relationship I want to vote for life. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And at the same time, the second Juror there, and say you know what, I didn't see what this Juror saw but I saw some mental health problems and because of that I want to give that the weight of life. And you understand how they can find different mitigation internally?
JUROR: Yes.
ROBERT MADSEN: And then Juror number three could say, I didn't see what either of those two jurors saw but for me I don't know who I want to vote for life. I don't know, I can't put into words but I still want to vote for life. Could you respect someone who said, you know, I can't put it into words, that is just what I feel?
JUROR: Yes.
ROBERT MADSEN: And so you understand that each one of them had a different reason and it is different and that is why there is no burden of proof?
JUROR: Yes.
ROBERT MADSEN: And so what we talk about, when we talk about the idea of basically taking someone's life, is that is an individual moral judgment. Have you ever heard that before?
JUROR: I don't think in those words, no.
ROBERT MADSEN: Well, the best way it has been explained to me is kind of the faith that you have chosen for yourself. That that is an individual moral judgment that you have made for yourself. And maybe someone else has made a different individual moral judgment as to what their faith is appropriate for them. You would expect them to respect your decision about what your faith should be?
JUROR: Yes.
ROBERT MADSEN: And at the same time would you respect them on what they made that determination?
JUROR: Yes.
ROBERT MADSEN: And so when you get to that second half of the trial each Juror themselves needs to make their own individual moral judgment as to whether someone lives or dies. You understand that?
JUROR: Yes.
ROBERT MADSEN: And if you were back in the jury room and you saw, you know, civility go out the window and people trying to browbeat or bully somebody out of their individual moral judgment would you say something?
JUROR: Yes.
ROBERT MADSEN: And you understand the law says if civility is gone you have the right to write a note to the Judge and say, Judge, this has gotten out of hand, it is browbeating, bullying, and it is not appropriate. Could you do that if you saw that?
JUROR: Yes.
ROBERT MADSEN: And you understand that once someone comes up with their individual moral judgment they can't just give that away to kind of go with the majority?
JUROR: Yes.
ROBERT MADSEN: And you agree with that?
JUROR: Yes.
ROBERT MADSEN: Subject to the Court's limitation that is all the questions that I have.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Ms. Applegate, my name is Shawn Graham and I am one of the Prosecutor's for the State in this case. Good afternoon.
JUROR: Good afternoon.
SHAWN GRAHAM: Thank you for being here with us. You are a type three Juror and you understand that there is two phases in this case. There is a guilt phase where you determine whether he is guilty or not guilty. You look at the evidence, as a Juror unanimously. If you find beyond a reasonable doubt that he is guilty only then would we move into the second phase.
JUROR: Yes.
SHAWN GRAHAM: There is something called aggravating factors. So but murder by itself does not get you eligible to have a death penalty case. In this case the aggravating factors are, not only is he guilty of murder, the aggravating factors and you and the rest of the jurors would have to look in the penalty verdict, the State has to prove beyond a reasonable doubt unanimously, all twelve of you, that not only is he guilty of murder but the aggravating factor and in this case you have to find one or two.
ROBERT MADSEN: Judge, didn't he object to that and not use the word--
THE COURT: -- I think you want to use factor and you used circumstance.
SHAWN GRAHAM: I will try to clear that up.
THE COURT: Right. Be careful what the word is to not confuse the Juror.
SHAWN GRAHAM: The two things that would be submitted to you, as a jury member, before you even can consider punishment would be the death of a child under eleven or multiple murders. Okay.
JUROR: Yes, sir.
SHAWN GRAHAM: Only at that point, if you, as a Juror, reached a unanimous decision that the State had proven beyond a reasonable doubt one of those two things and murder then you can start considering the punishment. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: In the punishment is a type of Juror, you would want to hear everything?
JUROR: Yes.
SHAWN GRAHAM: Not just the fact about the crime that he was guilty but now other things good and bad about his life, potentially?
JUROR: Yes.
SHAWN GRAHAM: So mitigation is what, the statutory mitigation that the Judge read through a list of things that by law you are required to consider as a reason to give life?
JUROR: Yes.
SHAWN GRAHAM: Anything that the Defense puts up to you also has to be considered as a possible mitigation or a reason to give life. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: So as a Juror you would have to be able to listen and consider and discuss with the other jurors anything that the Defense presents?
JUROR: Yes.
SHAWN GRAHAM: Just because they present something you understand that that does not mean that you have to accept that as your own reason to give life?
JUROR: Correct.
SHAWN GRAHAM: Even if something was presented in testimony and you considered it, that you could still, if you find appropriate, think that death was appropriate?
JUROR: Yes.
SHAWN GRAHAM: So if after all the evidence and the deliberation back in the jury room, if you unanimously decide that death is the appropriate verdict one thing additional is different about this type of case is that you as a Juror would be required to sign your name on a piece of paper attesting to the fact that death was the appropriate verdict. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: And if you and the other eleven jurors, if you were a Juror and the other eleven jurors thought that that was the appropriate sentence could you sign your name to that document?
JUROR: Yes.
SHAWN GRAHAM: Thank you, Ma'am. Just one second. I don't think I made something clear enough. I am not sure if I am confused or not. In the second phase, if we get there after the State has proved those aggravating factors to you as a Juror to a reasonable doubt, you understand that you will hear aggravating circumstances potentially from the State, that has nothing, it may or may not have anything to do with the crime. It may get worst. The Defense will present mitigating evidence as a reason to give life. So you will have both of those to weigh. Do you understand just because mitigating evidence--
ROBERT MADSEN: I object to this, it is not a--
THE COURT: Rephrase your question because it was a lengthy question and I have been challenging all attorneys to minimize the length of their questioning.
JUROR: Economy of language.
THE COURT: Economy of language, excellent words. I am instructing all the lawyers to be aware of the economy of language.
SHAWN GRAHAM: Do you understand that in that second phase, even if mitigating evidence is presented that you still have a choice of either life or death?
JUROR: Yes.
SHAWN GRAHAM: And that if you thought appropriate even after hearing mitigating evidence you could still vote for death. You understand that?
JUROR: Yes.
SHAWN GRAHAM: Thank you.
THE COURT: Anything to be put on the record?
ROBERT MADSEN: No, sir.
THE COURT: All right. Ms. Applegate, you are found by the Court to be a qualified Juror. What that means is you are on the list of qualified jurors. You will be in the group that will be selected potentially to be placed on the jury, you are not on there yet. We would have to go through an elimination process and that would happen soon. I need you to follow the website, the same one you were checking. And where it says qualified jurors please check back or please report back to the courtroom at such and such date and time. Can you do that?
JUROR: Yes, sir.
THE COURT: Also you are going to be under your oath to not discuss the case with anyone, on your oath to not let anyone discuss the case with you or ask you questions about that. On your oath to not do any independent research. Under your oath to not peruse any of the media sites, social, public, stay away from it. I want you to be influenced in your evidence on the case in the courtroom, not outside the courtroom. Can you do that?
JUROR: Yes.
THE COURT: I will see you when you come back. Thank you so much for your patience.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We will take a short lunch break right now and come back at 1:30.
BOYD YOUNG: Yes.
THE COURT: See you at 1:30. Let the jury know that we are going to take a thirty minute break and to be at ease and to not discuss the case.
(Whereupon, a lunch break was taken.)
THE COURT: Let's bring in 370. (Whereupon, Juror 370, Roger Sandy entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Tell me your name and spell it so Ms. Holston can determine if the microphone is close enough to you.
JUROR: My name is Roger Sandy. R-O-G-E-R, S-A-N-D-Y.
THE COURT: Mr. Sandy, I asked you to take an oath Monday last about not talking about the case. I ask the jurors the same questions, the same words. It is not special for you, it is special for everybody. Have you talked about the case to anybody?
JUROR: No, sir.
THE COURT: Has anybody asked you about the case since last Monday?
JUROR: No, sir.
THE COURT: Other than getting around work and family, telling them you got summons to jury duty, that is the only discussions you have had?
JUROR: Yes, sir.
THE COURT: Now, there is information out there from the publicity. There is information out there from the Court. I read the indictments. The indictments say the State alleges that. That is information. So you have got some information, of all the information you have heard, before and after coming to court and what the Court read, anything. Everything you have heard, have you formed an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: All right. So you understand the State has got to prove the case beyond a reasonable doubt and Mr. Jones is presumed innocent sitting right here right now?
JUROR: Yes, sir.
THE COURT: And will remain that way until the State proves his case?
JUROR: Yes, sir.
THE COURT: Beyond a reasonable doubt. Now, I asked you to have an idea of what your schedule was over the next three weeks. Starting next week to about three weeks what you got on your calendar that would be impacted if you were selected as a Juror?
JUROR: Just work.
THE COURT: Just work. So we would interrupt that. Serving on a jury is an inconvenience. Everybody understands that but it is a civic duty and sometimes we are inconvenienced. Okay. Now, subject matter in this case involves allegations of the death of children so there will be testimony and evidence, photographs, different things regarding subject matter of that type. I have not seen all the evidence, the lawyers have, they exchanged it. I am told in descriptive words, the testimony will be tough, graphic, harsh, unpleasant. That type of subject matter is difficult. Understanding that subject matter will be testified to, shown to you as a Juror can you receive subject matter of that type fairly and impartially and still render a fair verdict knowing it is going to be difficult testimony?
JUROR: I believe so, yes sir.
THE COURT: Okay. Fair enough. Now I gave instructions to you before lunch, a few minutes to noon, I think and then y'all got to go over there and how was your lunch?
JUROR: It was good.
THE COURT: Good. So I gave you those instructions earlier about the process, the procedure of the two stage Capital type trial. The first stage is guilt or innocence, the second stage punishment. I also gave you a list, a sheet of types of jurors in cases like that and that explanation kind of assumes that the State proves its case beyond a reasonable doubt and proves guilt. And the jurors have got to consider mitigating and aggravating factors and there is a burden of proof there. Understanding that will be, the position you will be put in can you identify yourself as one of those three types of particular jurors?
JUROR: Yes, sir.
THE COURT: What type are you?
JUROR: I believe to be type three.
THE COURT: And you can review that sheet if you like, that is why I have got it up here. I wrote this and I knew my intent. How do you read that, what does that mean?
JUROR: What does it mean?
THE COURT: Yes, for you? Just simple terms, no wrong answer, just your opinion and your feelings and so that is what I am looking for.
JUROR: Feel like it means can you judge all the evidence that is presented to you.
THE COURT: Okay. Now, have you come up with a preliminary judgment already or what you think the appropriate sentence would be?
JUROR: No, sir.
THE COURT: You would want to hear the good and the bad facts, whatever they are you want to hear them all before you decide?
JUROR: Yes, sir.
THE COURT: That is a pretty accurate description of a type three. I am going back to type, I am sorry, go back to the guilt or innocence phase. I will tell you this. That there will be testimony in that phase because the State has the burden of proving its case beyond a reasonable doubt. The State goes first trying to prove the murder. During that phase the Defense is offered an opportunity to prove or offer testimony to defenses. They may do so, they have entered one plea already of guilty by reason of insanity. So I am going to read all the defenses to you and tell you that I may instruct on some of them. Potential defenses include identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Those are potential defenses available to Defendants accused. Not all of them will be testified to or presented on. I don't know what will be presented. Now, understanding that the testimony may support the additional charging or instructing of one of those, can you accept my instructions on the law. I am telling you right now the State has the burden of proof, guilt beyond a reasonable doubt. The State has got to do that but also instruct you on potential defenses that Mr. Jones may have and you will consider and weigh testimony on my instructions as to those defenses also. Can you act fairly and impartially to both the State, the Defense, hearing all of the evidence and make findings consistent with my instructions?
JUROR: Yes, sir.
THE COURT: Can you do so being fair to the State and the Defendant?
JUROR: Yes, sir.
THE COURT: Very well. Now, additionally Mr. Jones has tendered a plea of not guilty by reason of insanity. By that plea the Court likely will offer a verdict form to the jury which will have four potential verdicts rather then the two traditional ones of guilty, not guilty. Potentially the verdicts can be, guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty all together. Those four potential verdict forms, can you evaluate the testimony and the evidence, consistent with my instructions and also find any one of those potential verdict forms consistent and in line with my jury instructions?
JUROR: Yes, sir.
THE COURT: Can you find a verdict of all four, any of those four and can you act fairly and impartially to both the State and to the Defense?
JUROR: Yes, sir.
THE COURT: All right. If the jury finds the State has failed to meet its burden of proof and finds a not guilty or not guilty by reason of insanity then the case ends. If the State meets its burden of proving beyond a reasonable doubt the case goes to phase two. In phase two two things are presented. The State presents evidence, testimony of aggravating factors. I will give you five. The murder of a policeman, the murder of a child, rape of murder, kidnapping of murder, multiple murders. The State must prove one of those beyond a reasonable doubt in order to ask the jury to consider imposing the death sentence. You understand?
JUROR: Yes, sir.
THE COURT: Additionally evidence is submitted by the Defense for the jury to consider of mitigation or reasons to impose the life sentence. I will give you some statutory mitigators. Okay?
JUROR: Okay.
THE COURT: The Defendant has no significant history of prior criminal history involving the use of violence against another person. The murder was committed 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. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators that the Defense can offer testimony and evidence to support. There is also non-statutory mitigators such as Mr. Jones childhood, if he came from a broken home, any aspect of his early life or recent life. The jury can consider as a reason to give life rather than death. Understanding that the Defense has no burden of proving those, they just show them and a jury must consider them in their deliberations. Thus I ask you, can you consider my instructions that the State has the burden of proving the aggravating circumstance of, to be entitled to ask for a death penalty and the jury is required to consider mitigating factors that they present in that stage also. Can you consider both, aggravating factors and mitigating factors, act fairly and impartially for the State and the Defense?
JUROR: Yes, sir.
THE COURT: You understand that the death verdict is not automatic. If the State proves murder and aggravating circumstances, still the jury has got to make a decision, one of two things, life or death, not both, not something else, not in the middle, one of the two. Death penalty is not automatic, it is a decision that the jury has to unanimously come to. Do you have any moral, religious or personal belief that you could not vote for and impose the death sentence?
JUROR: No, sir.
THE COURT: Do you have any religious, personal or moral belief that you could not impose a life without parole sentence?
JUROR: No, sir.
THE COURT: Presuming that the facts, you have got to evaluate all the facts and circumstances consistent with my instructions of all the things presented in sentencing. Can you do that?
JUROR: Yes, sir.
THE COURT: Can you be fair and impartial to both the State and the Defense as a Juror?
JUROR: Yes, sir.
THE COURT: Very well.
THE COURT: Mr. Young.
BOYD YOUNG: Did Your Honor inquire about the witness list?
THE COURT: I don't know that I did.
THE COURT: Did you look over the witness list?
JUROR: Yes, sir.
THE COURT: Did you notice anybody that you knew?
JUROR: I did not notice any names.
THE COURT: Okay. That won't be a problem for you. Thank you.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good evening, Mr. Sandy. My wife took the opportunity to get a new cat which I an highly allergic to so I am dealing with that a little bit. Now if the opportunity for you and I just to have a conversation about your feelings and opinions about some things that might be important in the case. Okay.
JUROR: Okay.
BOYD YOUNG: Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: If I confuse you in any way I need you to say, you know what, I don't understand that, can you rephrase that or clarify it. Okay?
JUROR: Yes, sir.
BOYD YOUNG: I have tendency to say, what I hear you saying and if I say it wrong I need you to say, that is not me, you got me wrong.
JUROR: Yes, sir.
BOYD YOUNG: Fair enough?
JUROR: Yes, sir.
BOYD YOUNG: Okay. I want to start with talking about, the Judge has told you about the charges in the case and he has read you the indictments about the five counts of murder involved in this case. Do you recall that from last Monday?
JUROR: Yes, sir.
BOYD YOUNG: And he has told you that Tim has plead not guilty by reason of insanity?
JUROR: Yes, sir.
BOYD YOUNG: You understand that?
JUROR: Yes, sir.
BOYD YOUNG: In South Carolina not guilty by reason of insanity means somebody says I did the killing but because of a mental disease or defect I was unable to appreciate the legal or moral wrongfulness of my actions. A little wordy but do you understand where I am coming from with that?
JUROR: Yes, sir.
BOYD YOUNG: Some people say in a case like that involving that type of killing, not guilty by reason of insanity is not a verdict that I can give meaningful consideration to. Do you understand that?
JUROR: Not exactly, I am sorry.
BOYD YOUNG: Sure. Fair enough. Some people say that insanity stuff is just an excuse, it is letting somebody get away with it and I put that with the twinky defense. That is not something that I am open to voting for. And how about you, where do you come down on that?
JUROR: I am pretty open minded.
BOYD YOUNG: You understand that sometimes people are mentally ill?
JUROR: Yes, sir.
BOYD YOUNG: And in South Carolina that could be a defense and it was proven to your satisfaction up to a preponderance of the evidence you could, in fact, see yourself voting for a not guilty by reason of insanity?
JUROR: Yes, sir.
BOYD YOUNG: And you understand if you vote for that the case would be over?
JUROR: Yes, sir.
BOYD YOUNG: That would be it?
JUROR: Yes, sir.
BOYD YOUNG: The jury's job is done?
JUROR: Yes.
BOYD YOUNG: That is fine with you?
JUROR: Yes, sir.
BOYD YOUNG: But if the jury doesn't find that, okay, the jury finds guilty or guilty but mentally ill then we have this second trial where we talk about penalty. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: In that, at that point and time you and eleven other jurors would have found the Defendant guilty, guilty, beyond all reasonable doubt. Okay. Not insanity, they knew what they were doing, knew the difference between right and wrong, chose to kill, chose to maliciously kill multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And then the jury gets to make a decision based on aggravating circumstances, mitigating circumstances about the appropriate punishment. Right?
JUROR: Yes, sir.
BOYD YOUNG: Are you with me on where we are in the trial?
JUROR: Yes, sir.
BOYD YOUNG: Some people say based on the malicious killing of multiple children alone I don't need to hear anything else, that makes up my mind for me. I think death is the only appropriate punishment for that type of killing. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: You know there are people like that?
JUROR: Yes.
BOYD YOUNG: Is that you?
JUROR: No, sir.
BOYD YOUNG: Can you tell me why not?
JUROR: It is probably because I don't have children of my own. Other than that I couldn't tell you why.
BOYD YOUNG: Okay. For you, in your decision, about life or death, do you think life in prison without the possibility of parole, understand that means he will die in prison. That could be a substantial enough penalty for that type of killing?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Mr. Stanley, tell me a little bit where you are in general, your feelings about the death penalty?
JUROR: I guess if the crime meets the death penalty sentence then I would approve it.
BOYD YOUNG: Now, and I am not trying to confuse you, I am just trying to understand where you are coming from. Okay. Are you telling me that once the crime of murder has been proven, are you with me on that?
JUROR: Yes.
BOYD YOUNG: And an aggravating circumstance has been proven, are you with me on that?
JUROR: Yes.
BOYD YOUNG: And then the jury has these two options. Are you saying once you have the option of life or death that death is the appropriate punishment for you?
JUROR: I believe so, yes sir.
BOYD YOUNG: Okay. Some people say, that stuff about background, character, how he was raised, what happened to him when he was a kid, that type of stuff, for me in deciding life or death, that stuff is not important. What is important to me is what did they do, what was their mental state at the time, but that is what I need. The other background stuff, the background and character stuff, that is not important to me.
JUROR: No, I believe the background is important.
BOYD YOUNG: I just want to make sure, I think I got you wrong, okay.
JUROR: I got you.
BOYD YOUNG: For you, let me ask you if you agree with this statement. To decide whether or not to end a person's life, do you agree that we should take a measure of their whole life?
JUROR: I am sorry,--
BOYD YOUNG: I think it is a great question but I think I seem to be the only one. Do you think, I think you have said that the character and background is important to you?
JUROR: Yes, sir.
BOYD YOUNG: And those things, those are reasons that you would think you could find, for you, as a reason to vote for a life penalty?
JUROR: Yes, sir.
BOYD YOUNG: Okay. And you could give whatever value you thought was appropriate?
JUROR: Yes, sir.
BOYD YOUNG: To you does the death penalty sort of serve a purpose, like is there a reason that we have it in society?
JUROR: I am not sure. I couldn't give you a solid answer.
BOYD YOUNG: Okay. If you haven't had to talk about it much that is fine. You haven't had much reason to?
JUROR: That's right.
BOYD YOUNG: Fortunately enough.
JUROR: Yes, sir.
BOYD YOUNG: At the end of the day this decision about who lives and who dies is what is called individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: There is not fact A, fact B, fact C and tells the jury this is the appropriate punishment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And that is what the Judge means when he says it is not automatic. No matter how many aggravating factors or circumstances you find there is none of them, they never add up to equal death.
JUROR: Yes, sir.
BOYD YOUNG: It is up to each Juror to decide what value you put on any mitigating circumstances they find and whatever aggravating circumstances they find. Does that make sense?
JUROR: Yes, sir.
BOYD YOUNG: And then they make a moral determination, I am going to kill somebody or I am not going to kill somebody. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: For me in describing individual moral judgment is kind of like choosing what faith is appropriate for you. You have made your own personal moral decision about what faith is appropriate for yourself. Is that right?
JUROR: Yes, sir.
BOYD YOUNG: And you recognize that other people may have made a different decision for themselves?
JUROR: Yes, sir.
BOYD YOUNG: And they may not agree with your decision?
JUROR: Yes, sir.
BOYD YOUNG: But you respect their right to their own individual moral judgment?
JUROR: Yes, sir.
BOYD YOUNG: And you expect them to respect your right?
JUROR: Yes, sir.
BOYD YOUNG: Your own individual moral judgment, is that right?
JUROR: Yes, sir.
BOYD YOUNG: And if you saw somebody being belittled or bullied out of what they arrived at as their individual moral judgment would you stop it?
JUROR: Yes, sir.
BOYD YOUNG: Because that is not fair, right?
JUROR: Yes, sir.
BOYD YOUNG: And could you send the Judge a note saying it needs to stop?
JUROR: Yes, sir.
BOYD YOUNG: And at the end of the day the only oath for the jurors about their own individual moral judgment is to ensure that their individual moral judgment is heard in court. Okay?
JUROR: Yes, sir.
BOYD YOUNG: Can you follow that oath?
JUROR: Yes, sir.
BOYD YOUNG: Thank you, Mr. Stanley.
BOYD YOUNG: Based on the Court's limitations I don't have anything further.
THE COURT: Ms. Mayes.
EXAMINATION
SUZANNE MAYES: Good afternoon, Mr. Sandy.
JUROR: Good afternoon.
SUZANNE MAYES: My name is Suzanne Mayes, I am one of the prosecuting attorneys in this case so we represent the State. I just have a few questions for you to follow-up on. You are 21?
JUROR: Yes, sir.
SUZANNE MAYES: So have you even thought much about the death penalty until you got called into court?
JUROR: No, Ma'am.
SUZANNE MAYES: One of the questions that Mr. Young just asked you was about your feelings on the death penalty. And your response is, I guess if a crime needs a death penalty sentence I would approve it?
JUROR: Yes, sir.
SUZANNE MAYES: With that said are you willing to listen to all evidence in the case including all of the mitigating factors that may be offered by the Defense in a case?
JUROR: Yes, ma'am.
SUZANNE MAYES: And would you take each and every one of those factors into consideration in deciding a punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: So is your mind made up at this point with what you might do?
JUROR: No, Ma'am.
SUZANNE MAYES: Would you want to hear all of the evidence before making a decision?
JUROR: Yes, ma'am.
SUZANNE MAYES: And even in a case involving the murder of a child or the murder of two or more persons would you still consider all of the aggravating and mitigating circumstances?
JUROR: Yes, ma'am.
SUZANNE MAYES: Would you consider all of those factors before making a final decision on punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: If after hearing all of those factors you decided that life without parole, meaning he never gets out of prison, is the appropriate punishment, could you make that your choice, could you vote for life without parole?
JUROR: Yes, ma'am.
SUZANNE MAYES: And if after hearing all of the evidence, all of those mitigating factors as well as any aggravating factors presented by the State during the course of the second phase of the trial, if after hearing all of that you were to reach the decision that the death penalty was appropriate could you actually vote for the death penalty?
JUROR: Yes, ma'am.
SUZANNE MAYES: With that death penalty all twelve jurors would have to sign a verdict acknowledging that that is in fact their decision and would have to sign that verdict form individually. Could you sign your name to that?
JUROR: Yes, ma'am.
SUZANNE MAYES: If after hearing all of the evidence you decided that was the right punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: And just to be clear, at this stage have you made up your mind about anything?
JUROR: No, Ma'am.
SUZANNE MAYES: Have you heard any facts here?
JUROR: No, Ma'am.
SUZANNE MAYES: Thank you, nothing further.
THE COURT: Anything in reply?
BOYD YOUNG: No further questions.
THE COURT: Anything you need to put on the record?
BOYD YOUNG: Yes, sir.
THE COURT: Step out of the courtroom real quick and I will have you right back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Young.
BOYD YOUNG: I guess they can't hear out of that door, I didn't know they were standing like right outside. Your Honor, the Defense would move to disqualify Mr. Stanley. I believe that he is substantially impaired. I know he gave the Court and the State a lot of yes and no answers but when he was asked about his views about the death penalty and the only time he elaborated at all on the death penalty was if the facts add up to it then it is death. And I believe he is substantially disqualified in his ability to consider a life without the possibility of parole sentence for somebody who is found guilty of murder.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Again, Your Honor, it is the totality. I wrote down his response and Mr. Young asked that question, he said what are your feelings on the death penalty. The response was, I guess if a crime needs a death penalty sentence I would approve it. But then went on to say he would consider all mitigating factors as well as background during Mr. Young's examination and made it clear that he could also return a life sentence. He is qualified, Your Honor.
THE COURT: Considering the totality I find him qualified. He did answer the totality of everything, he wanted to hear everything, all facts in making that decision. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Sandy, you could say your name both ways, Sandy Roger, Roger Sandy.
JUROR: Yes, sir.
THE COURT: Okay. Mr. Sandy, the Court finds you to be a qualified Juror. What that means is you are now going to be placed in a group of other qualified jurors. That group will be notified via the internet, like you looked when to determine to come in today. Start watching it tonight, it will tell you when to report back as a qualified Juror to the Court House. It may say report back on such and such a day on such and such a time. It may say check back the next day. Just monitor that each evening and follow those instructions. Now, until such time you come back and after that if you are seated as a Juror don't talk about the case, don't let anyone talk to you about the case. Do not do any independent research, do not subject yourself to the publicity. I want you, if put on the jury, to make your decision and your findings considering what you hear here in the courtroom and not what you consider or was trying to influence you outside of the courtroom because none of that is sworn testimony. It is what people want to say, there is no limits to what they can place them out there. Okay.
JUROR: Yes, sir.
THE COURT: I want you to consider what you hear in here. Keep an open mind, report back when it says qualified jurors report back on. Okay.
JUROR: Yes, sir.
THE COURT: See you soon.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Ms. Williams is next. Are y'all ready on 41?
BOYD YOUNG: Yes, sir.
THE COURT: Bring her in. (Whereupon, Juror 41, Reba Williams entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing, Ms. Williams?
JUROR: Doing well, how are you doing.
THE COURT: I am very good.
JUROR: Good.
THE COURT: I want you to have a seat, I will remind you you are under oath still. I want you to say and spell your name so Ms. Holston, she has got to hear you through the microphone and she wants to make sure it is working right.
JUROR: Okay. Reba, R-E-B-A; middle initial is L; Williams, W-I-L-L-I-A-M-S.
THE COURT: Ms. Williams, you were sworn and placed under oath Monday to not discuss the case with anyone whatsoever. I ask you now, did you talk to anybody about the case since Monday?
JUROR: No, sir.
THE COURT: Has anyone tried to talk to you about the case since Monday?
JUROR: No, sir.
THE COURT: Other than family members saying I am coming to court?
JUROR: No one.
THE COURT: Now, there has been publicity in this case, several years ago, when it first happened, several months ago, news reports, there has been social media reports, been all sort of publicity. I, in fact, read the indictments to you in the courtroom. So, I gave you some information?
JUROR: Yes.
THE COURT: Intentionally, indictments. These are the accusations the State is making against Mr. Jones. That is information. Has any of the information that you have heard, seen or otherwise received?
JUROR: No, sir.
THE COURT: I know you have received some. But any information you received has caused you to form an opinion about what happened in this case?
JUROR: No, sir.
THE COURT: No opinions?
JUROR: No opinions.
THE COURT: What does your calendar look like over the next three weeks, if the Court were to start the trial Monday, what would your calendar look like considering your personal and professional obligation. What have you got coming up at you?
JUROR: My calendar looks good.
THE COURT: Does that mean you have got a lot of vacation planned?
JUROR: For you guys, if you need me I am here.
THE COURT: You are available?
JUROR: I am.
THE COURT: Now, the subject matter of this case involves allegations of deaths of children. I have asked the lawyers, they have described that type of subject matter to me. I have not seen all of the evidence so I don't know, I am telling you from my observe. Descriptions that have been presented to me, Judge, this is graphic, there will be graphic evidence, difficult, harsh, unpleasant, it is hard to see. Subject matter of that type, considering the death of children, would that subject matter make it difficult, is the evidence is unpleasant and very difficult. Would that make, would you be able to perform jury service considering that subject matter going to be presented to the Court and to the jury?
JUROR: Yes, sir.
THE COURT: And so you can be fair and impartial to both the State and the Defense in spite of the difficulty and subject matter of the testimony?
JUROR: I will be fair.
THE COURT: Now, I gave you a witness list, I asked you to look over it. Did you know any of those witnesses?
JUROR: I don't know any of those witnesses.
THE COURT: And it is a lengthy list and not all of them will be called but they have got to tell you all the potential ones just in case. Do you understand that?
JUROR: Yes, sir.
THE COURT: Now, earlier on right before lunch I put you all in the jury box and made a explanation, a summary of the criminal procedures process involved in a Capital case. Kind of a two-stage process?
JUROR: Yes.
THE COURT: Phase one, phase two. The first phase guilt or innocence is proven or disproven. Phase two the punishment is imposed if necessary. I sent you another thing of three types of potential jurors. Most people fall in one of those three classes and they can identify themselves of being one of those typical types of jurors. Can you find yourself on one of those three types?
JUROR: I can.
THE COURT: Where are you?
JUROR: I am at number three.
THE COURT: You are at number three?
JUROR: I am.
THE COURT: All right. I wrote this and I knew what I meant when I tried to write it, what do you think the type three means, describe it for me?
JUROR: Three, every person has, who is on trial should have a chance to be proven and it requires facts in order to make that, you know, effective. And in order to do that, to give an appropriate punishment it has to be factual and it is important and to hear both sides, it is important.
THE COURT: Hear both sides?
JUROR: Have to.
THE COURT: Now, you don't have your mind made up right now to which of the two punishments are appropriate, do you, if the State were to prove guilt?
JUROR: No, sir. Haven't heard anything.
THE COURT: Okay. That is a fair answer. Now, I am going to step back and go back to the guilt or innocence phase. That portion of the case, the State has got to prove the guilt of the murder of Mr. Jones, they have got to call witnesses and present evidence trying to convince a jury beyond a reasonable doubt of his guilt committing those acts. Okay?
JUROR: Yes.
THE COURT: They have got to prove it unanimously to the jury. During that portion of the case the Defense is also able to offer defenses if they have any. Okay. I am going to read you some potential defenses, I can't tell you if any of them will be appropriate but some of them may.
JUROR: Okay.
THE COURT: Identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, alibi and duress. Those are potential defenses that are available under the law. If testimony is presented which could support one of those defenses could you give it meaningful consideration, considering my instructions on those defenses, likewise also give meaningful consideration to the State's testimony where they are attempting to prove beyond a reasonable doubt the elements of murder. Can you be fair to both sides during that portion of the case?
JUROR: I can.
THE COURT: Can you consider my instructions when evaluating the testimony and evidence you hear?
JUROR: Yes.
THE COURT: And you will be fair in that phase?
JUROR: I will be fair.
THE COURT: All right. Now, because of one of the defenses that Mr. Jones has already claimed, not guilty by reason of insanity, that brings into play two additional potential verdict forms. Traditional is guilty or not guilty. That is it. In this case because it is not guilty by reason of insanity, the verdict could be guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty all together. Can you give meaningful consideration to all four of those potential verdict forms.
JUROR: I can, yes sir.
THE COURT: You can do that.
JUROR: Yes.
THE COURT: Considering facts and testimony, evaluating fairly, consistent with my instructions and consider all of those potential verdict forms?
JUROR: Yes, sir.
THE COURT: Any one of those particular verdict forms that you would not consider?
JUROR: Not one of them.
THE COURT: If the State does not meet its burden of proof or the jury finds the verdict of not guilty by reason of insanity the case ends.
JUROR: Yes, sir.
THE COURT: If the State proves its case beyond a reasonable doubt of murder the case goes to phase two. Phase two, the jury is in charge of and must resolve and impose a sentence. One of two things, life or death.
JUROR: Yes, sir.
THE COURT: In that phase the State is required to prove an additional factor, it is called an aggravating factor. There are five of those, I will name off five and the State can prove one of them. Murder of a police officer, murder of a child, rape of murder, kidnapping of murder, multiple murders.
JUROR: Okay.
THE COURT: The State must prove one of those beyond a reasonable doubt to the jury in order to ask a jury to consider the death sentence. Do you understand that?
JUROR: Yes, sir.
THE COURT: And during this punishment phase, deciding punishment, the Defense presents evidence for consideration by the jury of mitigating factors. Do you understand that?
JUROR: Yes, sir.
THE COURT: Mitigating factors, I am going to read off a list of them and I will come back and ask a question. 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 requirement 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 mitigators that the Defense can present testimony to show. There are also non-statutory ones like what was his way in life, what was his walk in life, had a hard childhood, come from a broken home. Things of that nature jurors can also use and find as mitigating facts as reasons to give a life sentence.
JUROR: Yes.
THE COURT: Can you give meaningful consideration to the fact that the State has to prove the aggravating factor beyond a reasonable doubt while also considering the mitigating facts that the Defense has shown. They don't have to prove them, they just have to show them for the jury to consider. Can you do that?
JUROR: I can.
THE COURT: Can you consider the aggravating factor testimony as well as the mitigating circumstances the Defense presents, evaluate all of that consistent with my instructions on the law and be a fair Juror in this case?
JUROR: Yes, sir.
THE COURT: Can you be fair to the State and the Defense?
JUROR: I can.
THE COURT: Do you have any religious, moral or personal belief that you could not impose a sentence of death?
JUROR: No, sir.
THE COURT: Do you have any religious, personal or moral belief that you could not impose life without parole?
JUROR: No, sir.
THE COURT: All right.
THE COURT: Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, Ma'am.
JUROR: Good afternoon.
BILL MCGUIRE: My name is Bill, Bill McGuire. I am one of the lawyers in the case. Monday, last week when everybody came in the big Court House across, the big courtroom across the street did you recognize anybody or friends, coworkers or anybody in that group?
JUROR: No, I didn't.
BILL MCGUIRE: We ask everybody that just to see.
JUROR: Not one person.
BILL MCGUIRE: Okay. Now, the questionnaire that you sent into the Court, the Judge gives copies to the lawyers and I noticed that you work in teaching and childcare?
JUROR: I do.
BILL MCGUIRE: And you spend a lot of time around children?
JUROR: I do.
BILL MCGUIRE: And the Judge went over the fact that this case involves the death of children, that is very sad obviously. The fact that it involves that tragic subject matter could you still be fair to both the State and the Defense?
JUROR: Yes, I can.
BILL MCGUIRE: So you can hear evidence concerning young children and their deaths and maybe even graphic evidence like pictures and stuff like that. You would not be overwhelmed by that?
JUROR: No.
BILL MCGUIRE: It would not push you to a place where you would be biased for one side or the other?
JUROR: No.
BILL MCGUIRE: Okay. Despite the fact that you have devoted a good part of your professional career and your time with children you can still be fair in this case?
JUROR: I can.
BILL MCGUIRE: That is all we can ask for. And when, did you hear anything about this case, what happened about four years ago?
JUROR: Just from being here.
BILL MCGUIRE: That is the first time you heard about--
JUROR: --yes.
BILL MCGUIRE: And Mr. Jones has actually plead not guilty by reason of insanity. Have you ever heard the definition of not guilty by reason of insanity before?
JUROR: I have heard it.
BILL MCGUIRE: So you know it just means somebody whose has got something wrong with their mind, mental disease or defect and they can't understand right from wrong?
JUROR: Yes.
BILL MCGUIRE: And in that you have heard something along those lines before?
JUROR: Yes, sir.
BILL MCGUIRE: And that is a verdict that you could consider?
JUROR: Yes, sir.
BILL MCGUIRE: And say you would listen to the testimony on both sides supporting or not supporting that type of verdict?
JUROR: I will.
BILL MCGUIRE: Now, the Judge told you if the jury voted not guilty by reason of insanity that would end the case at the first phase. The jury wouldn't have the opportunity to go the second phase, the sentencing phase. And some jurors might say, you know, I don't want to vote for not guilty by reason of insanity because I want to reach that sentencing phase so we can meat out some punishment. Would that impact you or could you fairly consider not guilty by reason of insanity?
JUROR: I could fairly consider.
BILL MCGUIRE: And if some other Juror said I don't want to vote for that because I want to get to that sentencing phase, that wouldn't impact you?
JUROR: No, sir.
BILL MCGUIRE: Okay. And in South Carolina the only way the death penalty is the verdict is if all twelve jurors agree that the death penalty is the right verdict. And there is some paperwork that goes with that and each Juror has to write their name on a line on a piece of paper saying that that is their verdict. And that document would be filed in the Court House and be here, public record. You could put your name on that?
JUROR: I could put my name on that.
BILL MCGUIRE: Okay. A lot of people say, I sure would have a hard time writing my name on that but you can do that?
JUROR: I can do it.
BILL MCGUIRE: All right. Now, also if your position that the life verdict was possible, life without parole you could vote for that too?
JUROR: I can.
BILL MCGUIRE: Okay. And the way this works, if we get to a sentencing phase, a phase two each individual Juror gets to vote for life or death. This is not a group decision, it is everybody's individual. Does that make sense?
JUROR: It does.
RICK HUBBARD: Your Honor, I object to that.
THE COURT: Rephrase your question to the way you have been characterizing it.
BILL MCGUIRE: Okay. So the rules of court state that it is wrong for a Juror, any individual Juror, it is wrong for them to give up their position, their vote and switch sides and vote with the majority for the sole sake of joining the majority. Do you understand that?
JUROR: I do, I understand.
BILL MCGUIRE: You understand that would be wrong for somebody to just, for the sole reason of joining the majority they can't do that?
JUROR: I understand that.
BILL MCGUIRE: And the law requires them, once they reach a conscientiously held belief, what is called an individual moral judgment, they have the duty and obligation to stick with it and maintain it if that is right for them. Does that make sense?
JUROR: It does.
BILL MCGUIRE: And different jurors, if they want to vote for the life penalty, life without parole, they can all have different reasons, they don't have to agree. For instance, Juror number one could say, I saw something about the man's mind, his mental health wasn't right and I am not going to death for somebody who has got a broken mind. Not going to do it, that is my reason. Juror number two could say, I didn't see that, I didn't agree with that mental health stuff but I saw an enduring relationship between the Defendant and his father and I saw a spark of humanity there, some hope of redemption that resonated with me. That is going to be my reason to vote for life and they don't have to agree, they can have their own individual reason. Does that make sense?
JUROR: It does.
BILL MCGUIRE: What that means is all twelve jurors don't have to say, well, we have to agree on a reason for life. We don't have to have that. Does that make sense?
JUROR: It does.
BILL MCGUIRE: Sound fair?
JUROR: It is fair.
BILL MCGUIRE: And if you reach your individual moral judgment, all also, the Judge would tell the jury that they can vote for life for any reason, no reason or mercy alone. And if somebody said, I can't even put into words my reason, I can't explain that, I can't put into words but I saw everything, I just want to vote for life. Does that sound fair and appropriate, they don't even have to state a reason?
JUROR: No.
BILL MCGUIRE: That doesn't sound fair, they should have to have a reason? Let me rephrase that.
JUROR: Please.
BILL MCGUIRE: Okay. So the Judge would tell the jury at the end, very end of the case, any individual Juror can vote for the life penalty, life without parole, for any reason, no reason, or mercy alone. And somebody might not be able to come up with a reason and they say, I don't have a reason to give you but I just want to vote for the life penalty. Would you let them have that, would you respect that?
JUROR: No, that is not right.
BILL MCGUIRE: They have to have a reason?
JUROR: Yes.
BILL MCGUIRE: Okay. If the Judge, could you, if the Judge says, the law is, they are allowed to vote for life for no reason could you put aside your personal view that they have to have a reason, could you put that aside and follow the Judge's instructions and allow a Juror to vote for life even if they didn't have a reason?
JUROR: Yes.
BILL MCGUIRE: Okay. Now, part of the rules in court, some of them are for lawyers, some of them are for Defendants but some of the rules are for jurors. And the rules are that these proceedings have to be conducted with dignity, decorum and respect. And I will just tell you, once a Juror reaches their consciously held belief, they have a duty and obligation to stick with it, and it would be wrong for other jurors to try to coerce them out of that or bully them out of it or force them to change their position. If you saw that happening, bullying, coercion, could you send a note out here to the Judge to say, these proceedings are not being conducted with dignity, decorum and respect, things have gotten a bit out of hand. Could you help get civility back in the jury room?
JUROR: Sure can.
BILL MCGUIRE: And you would make sure that nobody was bullied?
JUROR: Definitely make sure.
BILL MCGUIRE: Thank you very much.
THE COURT: Mr. Hubbard.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Ms. Williams, how are you?
JUROR: I am blessed, how are you doing.
RICK HUBBARD: I am good. Thank you for coming up here and thank you, I know you have had to wait a while.
JUROR: That's okay.
RICK HUBBARD: Appreciate you coming.
JUROR: Thank you.
RICK HUBBARD: I am Rick Hubbard, I am the Solicitor, got some folks over here, we are the ones prosecuting this case. And I was listening to your answers with the Judge and the Defense Counsel and you sound like somebody who wants to hear everything?
JUROR: I do.
RICK HUBBARD: You can't make a decision unless you hear everything?
JUROR: Absolutely right.
RICK HUBBARD: Right. And that first phase of the trial which is just to determine if somebody is guilty or one of those other verdicts, you would want to hear everything?
JUROR: Yes.
RICK HUBBARD: And that is not about punishment or mercy at that point?
JUROR: Right.
RICK HUBBARD: Just about those facts.
JUROR: Facts.
RICK HUBBARD: Yes. And we move into that second phase, the punishment phase, that is after you found is guilty. You move in, okay, now he is guilty, what is the punishment. You want to hear all the facts there too?
JUROR: Yes.
RICK HUBBARD: You have heard the Judge mention aggravating factors, things that I would have to prove and then mitigating circumstances, things that are helpful to the Defendant. You heard all of that?
JUROR: Yes.
RICK HUBBARD: Did you know you could actually find both and still vote for either verdict, life or death?
JUROR: Yes.
RICK HUBBARD: You could find some good things about the Defendant but if you found beyond a reasonable doubt that there also are aggravating factors you, as a Juror, and your fellow jurors could still say, you know what, we get there is some good things here but we could still vote for death. Do you understand that?
JUROR: I do.
RICK HUBBARD: And as a Juror would you be able to do that?
JUROR: Yes, sir.
RICK HUBBARD: And I think the final thing we mentioned was, what is really unique about a death penalty case is every Juror, if they vote death, have to sign their name and I understood you are willing to do that?
JUROR: I am.
RICK HUBBARD: Ms. Williams, thank you.
JUROR: You are welcome.
THE COURT: Anything?
BILL MCGUIRE: Nothing for the Juror or the Court.
RICK HUBBARD: Nothing, Your Honor.
THE COURT: Ms. Williams, the Court deems you a qualified Juror. What that means is you are going to be not placed on the list but you are maintained now as a qualified Juror on that group of jurors. Not all jurors have been qualified for a variety of reasons. But you are qualified to be selected as a Juror now. We had to make certain you didn't come in here, had your mind made up. You have not. That makes you qualified.
JUROR: Thank you.
THE COURT: You need to check the website tonight, it is going to say please check back tomorrow or please come into the Court House on such and such a date and such and such time. I want you to check that website tonight and every night until you come back into court. And you will be under qualified Juror instructions. Until such time do not allow anybody to try to influence your decision. Do not allow anybody to talk to you about the case. Do not do any independent research which would change your willingness to listen. Do not listen to any of the media publicity going on, social media or otherwise. I don't care where it is coming from. It is not relevant because it is not under oath and it is not here in the courtroom with everybody at the same time. All jurors will listen at the same time. That way everybody gets to consistently hear the same thing and people can take what they want to from that. Do not let anything outside the courtroom influence your decision. I will see you when you come back. Thank you.
JUROR: Okay. Thank you so much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in Juror 44. (Whereupon, Juror 44, Amy Boozer entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Is your name Ms. Boozer?
JUROR: Yes, sir.
THE COURT: Ms. Boozer, just to check the microphone out, Ms. Holston's benefit, say and spell your name.
JUROR: Amy Boozer. A-M-Y, B-O-O-Z-E-R.
THE COURT: Ms. Boozer, I asked you Monday gone, a week ago, you took an oath to not talk about the case. Have you talked about it with anybody?
JUROR: My husband.
THE COURT: Okay. I mean, any facts or just to tell him you have got to come in for jury duty?
JUROR: We haven't discussed facts since last Monday. Prior to that we discussed it on multiple occasions because there is a lot of knowledge of it.
THE COURT: There has been a lot of publicity on the case.
JUROR: Yes.
THE COURT: I gave you some, I read the indictments to the whole panel and that is information also that could, that you received.
JUROR: Yes, sir.
THE COURT: Of the information you received, no matter when it was received or brought to your attention or you saw it, read it, heard it, whatever, the information came to you even from me. Has any of that information caused you to form an opinion as to what happened in this case?
JUROR: Yes.
THE COURT: What do you think happened. See, there is no wrong answers. I am looking for your beliefs and opinion.
JUROR: I believe that--
THE COURT: It is okay, you are not getting in trouble.
JUROR: Based on what I heard in the media, I believe that this man murdered his five children.
THE COURT: Okay. Now, you believe him to be guilty as he sits right now?
JUROR: Yes.
THE COURT: Okay. Now, have you kind of, I asked you to read the potential Juror types. Can you identify yourself?
JUROR: One.
THE COURT: One. Okay. Fair enough. Can I talk you out of it, move you off of it, suggest to you that maybe two is better, three is better?
JUROR: No.
THE COURT: That is what I need to know. That is an honest, candid opinion, what I need. I can now thank you for coming by and excuse you from being served.
JUROR: Thank you.
THE COURT: Thank you so much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Number 325, bring her in. (Whereupon, Juror 325, Tina Penn entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ma'am, you are 325?
JUROR: Yes, sir.
THE COURT: I want you to spell and say your name so that Ms. Holston can make sure she is hearing you correctly.
JUROR: Okay. Tina, T-I-N-A. Last name is Penn, P-E-N-N.
THE COURT: Okay, Ms. Penn, I asked you last Monday to take an oath and to not talk about the case with anybody. Have you talked about the case with anyone?
JUROR: No.
THE COURT: Has anyone talked to you about the case?
JUROR: Occasionally people would say something and I would say, stop, I can't talk about it.
THE COURT: There has been a lot of publicity in this case. Social media, regular media, news media and in fact I read the five indictments because I had to in open court last Monday and that is information, publicity. They are allegations the State has made to Mr. Jones what to be prepared to come into trial. Any information that you have heard, received, considered, my information I gave you. Any of that information, no matter when you got it, has that caused you to form an opinion as to what happened in this case?
JUROR: Yes.
THE COURT: Remember, there is no wrong answers here. What is your opinion?
JUROR: That he is guilty.
THE COURT: And you think he is guilty sitting right here?
JUROR: Yes.
THE COURT: Now, I also asked you to identify yourself as a potential Juror. Can you self-identify as one of those three types?
JUROR: Two.
THE COURT: Two. So you think life in prison is the most appropriate penalty on cases like this?
JUROR: Yes, because I think type one is the easy way out.
THE COURT: Okay. So you wouldn't impose a one?
JUROR: No, probably not because I think that is the easy way out.
THE COURT: Fair enough. Okay. I can excuse you and thank you for coming.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a break.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in 425. (Whereupon, Juror 425, Robert Tate entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Mr. Tate.
JUROR: Yes, sir.
THE COURT: I want you to spell your name, first and last so that Ms. Holston can determine if you are close enough to her mike.
JUROR: Robert Tate, T-A-T-E.
THE COURT: Mr. Tate, I had put you under oath Monday gone to not talk about the case?
JUROR: Yes, sir.
THE COURT: Has anybody tried to talk to you about the case?
JUROR: No.
THE COURT: You talked about the case with anyone?
JUROR: I have not.
THE COURT: There has been publicity, media, social media, news media. In fact I read the indictments to the entire panel Monday. The allegations are, the State is accusing Mr. Jones of, remember that?
JUROR: Yes.
THE COURT: That is information also, publicity, it was read in public, so that is publicity. Has any of the information you have received, no matter when you received it, whether it was four years ago, any news accounts since then, any social media, my comments. Has any of that information caused you to form an opinion as to what has happened in this case already?
JUROR: A little.
THE COURT: And can you share that, no wrong answers here. Okay. Can you share with me what you believe your opinion may be?
JUROR: Just to hearing, just briefly during the jury selection and what the trial was for and just conversation, like being in the grocery store, where ever, and just people talking.
THE COURT: So you have formed an opinion as to what happened?
JUROR: Well, of course.
THE COURT: What do you think happened?
JUROR: What the case is about, you know.
THE COURT: You think that has happened?
JUROR: Yes.
THE COURT: Okay. So have you formed an opinion that he is guilty already? That is what I am asking.
JUROR: Yes.
THE COURT: Okay. So you believe he is guilty already?
JUROR: Yes, from what I have heard.
THE COURT: Do you think, you are pretty firm in that opinion, is there anything that will talk you out of it?
JUROR: I don't--
THE COURT: It is hard to get over an opinion, isn't it?
JUROR: Yes, I wouldn't think so but I, you know--
THE COURT: Did you see the Juror, type of potential jurors?
JUROR: I did.
THE COURT: Can you identify yourself as one. Are you one, two or three?
JUROR: Probably one.
THE COURT: Okay. You are pretty firm on that?
JUROR: Yes.
THE COURT: You couldn't go for life?
JUROR: You are asking me today?
THE COURT: You don't know much.
JUROR: Today, one.
THE COURT: One, fair enough. I am not going to waste any more of your time. I am going to excuse you and appreciate you coming and I appreciate your candor. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 417. (Whereupon, Juror 417, Joseph Straczek entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: 417, I am not going to pronounce your name but I am going to ask you to say it, first and last and spell it so Ms. Holston can determine if you are talking loud enough in her microphone.
JUROR: Okay. Joseph Straczek, last name is spelled, S-T-R-A-C-Z-E-K.
THE COURT: Mr. Straczek, in the last ten days or so, you have been under oath to not talk about the case since last Monday when I asked you to take that oath. Has anyone tried to talk to you about this case?
JUROR: No.
THE COURT: Have you talked to anybody about this case?
JUROR: No.
THE COURT: There has been information out there via publicity, four years ago when it happened, a few months ago, here in the last ten days, my reading of the indictments, the charges and allegations the State is making. That is information conveyed to you. Has any information that you have received or been conveyed to you at this point, right now, anything you have received about this case cause you to already form an opinion as to what has happened?
JUROR: No.
THE COURT: You don't know much about it. Now, have you heard the publicity?
JUROR: No.
THE COURT: Okay. Not heard any of it?
JUROR: No.
THE COURT: Okay. Now, the subject matter in this case, I read the indictments, the subject matter involves the death of children. Testimony will be presented by the parties about these children and their death. I am told, the lawyers and I talked about this because they represented to me this, they wanted to make certain that all the jurors realized and understood that the testimony may be graphic, difficult, harsh, unpleasant. Those are the words the lawyers are using in describing. I have seen bits and pieces and some preliminary things. I have not seen them. That is the type of subject matter and type of graphic testimony the Court and jury will see and have to consider. Would that subject matter be difficult, make it difficult for you to act fairly and impartially because of its nature or can you consider, even though it is difficult, can you be fair and impartial?
JUROR: As, I have some circumstances that may contribute to me not being, to being impartial.
THE COURT: And that would be because of the subject matter?
JUROR: Not because of the subject matter.
THE COURT: Are you fast forwarding to your personal, do you have any personal belief that would prevent you from finding one of the two verdicts?
JUROR: No.
THE COURT: I didn't ask you about your schedule. Let me get there.
JUROR: Right.
THE COURT: What schedule have you coming up the next two or three weeks?
JUROR: Well, currently I have an open case in the State of Illinois right now. It is a family divorce matter so the final hearing is suppose to be on May 29th.
THE COURT: Ohio?
JUROR: Illinois.
THE COURT: Illinois. In the mid-west?
JUROR: Yes.
THE COURT: You don't want to miss that.
JUROR: I prefer not to but I don't have to be there because it is, it is the final judgment that is given by the Judge.
THE COURT: Okay. And anything else going on other than you have got to travel to Illinois?
JUROR: Other, no, I have made some personal travel as well that I have spent money already, already committed to.
THE COURT: In the next three weeks?
JUROR: Yes, the week, the same week.
THE COURT: I am not going to impose on your personal money committed already. Had you not paid for it I would say let's reschedule it but most jurors that have come in here with a prepaid travel plans and you have got a court appearance. I think court appearance is important.
JUROR: They are.
THE COURT: I think they are very important so I don't want to upset your calendar. So I am going to excuse you for those reasons.
JUROR: Okay.
THE COURT: You are free to go.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We are going to stand down until our next panel gets in here.
(Whereupon, a short break was taken.)
THE COURT: Let's bring panel 14 in. (Whereupon, Juror 361, Travis Ross; 109, William Cunningham; 392, Richard Shinn; 181, Matthew Haslinger; 343, Brian Pugh; 8, Wendy Allison; 403, Linda Smith entered the courtroom.)
THE COURT: All right, Folks, back in the courtroom and I will have you placed under oath momentarily. I am going to read a statement, things about the procedure, a little bit of law. Y'all can kind of considering in answering the questions. I get to ask questions about the understanding of this and other things. The witness list will be shown to you, we need to know if you know anybody. There are three types of jurors, I am going to ask you about that. Most of the questions today will be under oath are your personal beliefs or opinions so there is no wrong answers. It is just how you feel. No wrong, just truthful. We will get to those fairly quickly. Some jurors take longer than others. And some took a long time and some took that long so bear with me and thank you for coming. Madam Clerk, place the group under oath, please.
(WHEREUPON, the jury was sworn at 3:40 p.m.)
THE COURT: All right, folks, like I said, when you come back in I will need your calendar to know what is coming at you for the next two or three weeks. I want to know that impact on you, your calendar. Also don't discuss the case back in the jury room, whatever about it. The cameras are off, no cameras are going on right now. So relax about that. You have been summoned as potential jurors, and I have read this to all the other panels and I continue doing so, everybody gets the same preliminary instruction. You have been summoned as potential jurors in the case of the State versus Timothy R. Jones, Jr. My name is Judge Eugene Griffith, Jr. and I will be the presiding Judge in the trial. Mr. Jones is charged with five counts of murder. And in South Carolina murder is defined as the killing of 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 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 an accused person is presumed innocent of each and every element of the crime to which he is accused. The State must prove each and every element of that crime to the standard of proof called beyond a reasonable doubt. In most crimes Judges determine the punishment upon a conviction. But in a Capital penalty case the jury determines the punishment. In a Capital case the trial is divided into two parts potentially. The guilt or innocence phase and then if necessary the punishment phase. The first portion of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused 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 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 to the standard of proof 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 things. A wide variety of testimony may be presented to you in this trial. I will instruct you as to how to consider and evaluate the testimony, whether it be defined as evidence of an aggravating factor, evidence of mitigation which is reasons 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 all the testimony and evidence is presented I am not able to tell you the exact instruction of the law which I will give.
Once you are brought back into the courtroom one at a time you will be asked this question. Can you accept an oath to meaningfully consider all the testimony and evidence, apply the law as I instruct it and consider all of the evidence consistent with my instructions. Those are your preliminary instructions. Step back to the jury room. We will call you one at a time. We will give you an opportunity to review the potential witness list as well as the three types of jurors. I have asked all the jurors basically the same line of questioning. My first question will be, have you talked about the case. I haven't heard anybody has talked about the case but that will be my first question when you come in. Okay.
(Whereupon, the jury was excused from the courtroom.)
THE COURT: The first one, 361, bring him out. (Whereupon, Juror 361, Travis Ross entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Mr. Ross?
JUROR: I am.
THE COURT: You are, Mr. Ross, I want you to say and spell your name so that Ms. Holston can identify whether or not you are speaking loud enough.
JUROR: Sure. Travis Ross. T-R-A-V-I-S, R-O-S-S.
THE COURT: The first question, you are under oath. Have you talked about the case in any manner whatsoever since I told you not to Monday?
JUROR: Negative.
THE COURT: Have anybody, has anybody tried to talk to you about the case?
JUROR: Negative.
THE COURT: Do you, you have heard publicity in the case because I read the indictments. That is publicity, that is publication of certain allegations made by the State, the charges. There was publicity four years ago, several months ago, the weekend before we came in Monday and since. Has any information which come to you, from where ever it came, whenever it came, don't care, any information you have received even from me.
JUROR: Yes.
THE COURT: Has any of that information caused you to form an opinion as to what happened in this case?
JUROR: Negative.
THE COURT: Okay. So you have not formed an opinion?
JUROR: Negative.
THE COURT: You will be presented testimony of subject matter involving the death of children. I have not seen all the testimony and evidence, it has not been presented to me yet. I have seen preliminary things but not much. The lawyers have represented to me this evidence is very difficult, it is tough, it is going to be very graphic and harsh. Would subject matter of that type make it difficult for you to be a fair and impartial Juror or can you receive testimony of difficult subject matter and still be fair and impartial?
JUROR: It would be difficult.
THE COURT: Can you be fair and impartial in light of that?
JUROR: Yes.
THE COURT: You are willing to consider it?
JUROR: Willing to consider it.
THE COURT: I am, I don't think anybody would volunteer to try to see the difficult testimony. I understand.
JUROR: Okay.
THE COURT: Have you looked at the witness list?
JUROR: I have.
THE COURT: Have you found anybody you know on there?
JUROR: Not from that list, no.
THE COURT: Are you connected to anybody in the courtroom?
JUROR: Not in the courtroom, at the time I was high school buddies with Sheriff Koon was who in the prior room but I don't see--
THE COURT: He is in and out.
JUROR: Yeah.
THE COURT: High school friend?
JUROR: High school friend, waive at a parade.
THE COURT: The fact that you waived at a parade would that affect your ability to be fair and impartial since his office is the main investigating authority in this case?
JUROR: Negative.
THE COURT: Now, I gave you a preliminary instruction on the law moments ago. Two phase case, it is a Capital case. Phase one is guilt or innocence. Phase two is sentencing. The State has got to prove its case, phase one, guilty beyond a reasonable doubt in order to get to phase two. I ask you to evaluate three types of jurors if they got in the second phase and could they find themselves under those three potential types. Can you identify yourself?
JUROR: So it has to be an absolute choice?
THE COURT: Yes.
JUROR: Okay, that would lead towards one, after it is on three.
THE COURT: With that being the case do you believe that Capital cases deserve the death penalty?
JUROR: I do not believe they are always absolute. So I am not exactly sure how to answer that question.
THE COURT: Okay. Well, in order to be, for me to understand this. You classified yourself as somebody who once the State proved its case, guilt and then an aggravating factor, you wouldn't need to hear much else?
JUROR: There are circumstances that would take me away from a one but I would be more inclined if proven, to lean towards type one.
THE COURT: Okay.
JUROR: I am sorry to be very vague.
THE COURT: No, no, no. I told you there was no wrong answers.
JUROR: Right.
THE COURT: So you have not missed the same question, give me your opinion is what I want, I don't want you to give me an improper or not yourself. I don't want that. I want exactly what you are giving me.
THE COURT: I find, since Mr. Ross is self-identified as a type one I am going to excuse him. I just don't think we can get past that.
THE COURT: I am going to excuse you from service.
JUROR: I understand.
THE COURT: Thank you.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring 109. (Whereupon, Juror 109, William Cunningham entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Mr. Cunningham?
JUROR: Yes, sir.
THE COURT: I want you to spell your first and last name to make certain that Ms. Holston can you hear you clearly.
JUROR: W-I-L-L-I-A-M, C-U-N-N-I-N-G-H-A-M.
THE COURT: Mr. Cunningham, I told you the first question, remind you you are under oath. The first question is, have you talked to anybody about the case since you were here last Monday?
JUROR: No, sir.
THE COURT: Has anybody tried to talk to you about the case since last Monday?
JUROR: Yes.
THE COURT: And the nature of the conversation was what?
JUROR: Well, I can't talk about it.
THE COURT: That is what you told them?
JUROR: Yes.
THE COURT: Fair enough. Now, there has been a lot of publicity in this case, four years ago, several months ago, two weeks ago, in the last ten days. When you were in court Monday I read the indictments, those are the allegations the State is making so I provided some information to you.
JUROR: Yes, sir.
THE COURT: Mr. Jones plead not guilty, he is presumed innocent. The evidence, the information you heard to date, whatever it was, whatever it is, whenever you heard it, I don't want to really worry about when you received it. Has that information you have gotten up to this point right now caused you to form an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: You still have not formed an opinion as to what happened?
JUROR: No, sir.
THE COURT: All right. The testimony in this case involves the death of five children. It has been described by the lawyers that the testimony will be kind of graphic, difficult, unpleasant, maybe even harsh. That subject matter will be the nature of the trial. Can you consider testimony that would be difficult and unpleasant and still be a fair and impartial Juror in light of that subject matter?
JUROR: Yes, sir.
THE COURT: Can you do that and be fair and impartial to both sides?
JUROR: Yes, sir.
THE COURT: Now, I gave you a witness list to look over, the same as this one. Did you read over the witness list?
JUROR: Yes, sir.
THE COURT: Did you know any of those witnesses?
JUROR: No, I didn't. None of them stuck out to me.
THE COURT: Fair enough. I gave you some instructions moments ago on the procedure and some of the law in South Carolina. Very brief, very over, big overview of a Capital case, it is two phases. Phase one is guilt or innocence. If the State meets the burden in phase one, a guilty verdict is found. Presuming that is done jurors then are faced with the decision of what type of punishment to implement. I showed you a three type of potential jurors. Can you identify yourself as any one of those three types?
JUROR: Type three, sir.
THE COURT: Type three. Type three would be, how would you describe a type three because I wrote that and I know what I was intending.
JUROR: I would describe type three as somebody who is going to listen to the evidence and then form a decision after everybody presents their case.
THE COURT: Not a bad assessment of what type three is. You have got an open mind, willing to consider all the evidence, good and bad and then make a decision?
JUROR: Yes, sir.
THE COURT: Fair enough. How is your calender coming up over the next three weeks?
JUROR: My boss which is the owner of the company that I work for, he seems to think that it will be devastating for me to be out for a long period of time.
THE COURT: I am guessing until early June, the first week.
JUROR: He told me that he was going to submit a letter or try to tell all you guys to see about getting me, because I do multiple job titles at my job.
THE COURT: What do you do?
JUROR: I am a Design Engineer, I am a C&C Programmer. I also run the shop floor.
THE COURT: What do you make?
JUROR: Signs, sir.
THE COURT: Signs like billboards or smaller signs?
JUROR: No, like your big highway signs like car dealerships, Volvo, Caterpillar, Ford, Chevy.
THE COURT: Those are made out of plastic and the lights are in them and that kind of thing?
JUROR: All different, some of them is aluminum and some of them is plastic and then there is lights in them and then we also do the, like the facial boards, around a building.
THE COURT: Well, understand this. I am very aware of the inconvenience it puts jurors who are called to serve on, what they do for a living. It is a civic responsibility and it creates inconvenience. And as unfortunate as that is, it is just an inconvenience. So I appreciate that but unless you are self-employed and you have got to close your business I kind of got to keep you. I am not making the rules, I am the messenger. The General Assembly gives me the rules to follow and how to excuse jurors.
JUROR: I mean I will do what I have to do, I have done that my whole life, sir. If I have got to serve I will serve and if I don't then I don't. I will make it work one way or the other. It is just, I didn't talk about the case but he knows that I am missing because of the jury duty. He knows I was out Monday. He knows that I was out and he said it is a pretty big trial and I said, yes, it seems like it is. He said, well you know that it is going to be devastating for you to be out for a long time. I said, well, I said you do what you have to do and I will do, I mean, and so I am not saying he won't submit something but that is your decision.
THE COURT: Okay. If I hear from him I may consider that but, word from somebody else. I mean, I am sorry to inconvenience him but jury service is an important in responsibility society and sometimes it is more important than people making money. And so I don't say this as criticism toward him, everybody has their own things they have got to do and their own task. That is how it is, you weigh those things and make decisions. So anyway, we are going to move forward with my questions to you. You said you were a type three. You understand that during the first phase, we discussed that with you. In the first phase of the trial the State has got a responsibility or burden to prove its case of murder beyond a reasonable doubt. The State tried to meet that burden by presenting evidence, calling witnesses to prove taking another one's life, killing of another with malice aforethought. All right?
JUROR: Yes, sir.
THE COURT: They try to prove that. The Defense can challenge the State's evidence or they can also offer defenses which are available to them under the statutes. I am going to read you most of the defenses which are available, all of them will not be applicable but some of them might and I am going to come back and ask you a question. Okay.
JUROR: Okay.
THE COURT: Potential defenses include identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential defenses that are available to a person accused. Mr. Jones is presumed innocent right now. The Constitution affords him that presumption. He remains presumed innocent until the State presents enough evidence to overcome the burden of proving the case beyond a reasonable doubt. The defenses are offered by the Defense. Now, if testimony supports one of those defenses I will instruct on that particular defense. If testimony doesn't support, presenting on that I won't. Most all of those won't apply but they could. Can you consider the State's burden of proof, evidence and testimony the State presents, the cross-examination, anything and the instructions of the Court on how to consider any defenses and the testimony and evidence which may support that in making your decision in this case following my instructions, being fair to both sides. Can you do that?
JUROR: Yes, sir.
THE COURT: Can you give meaningful consideration to all of that testimony and do it consistent with my instructions in the trial?
JUROR: Yes, sir.
THE COURT: Now, particularly in this case there has been a defense presented by Mr. Jones which is not guilty by reason of insanity. Potentially four verdicts could be facing the jury in the State's case, when the State tries to prove the murder. Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Four potential verdict forms. The State has the burden of proving guilt beyond a reasonable doubt. These defenses will be offered and you will hear testimony on those. The Court, I, will instruct you on the aspects of those defenses and must be proven for you to consider them. Can you give meaningful consideration to the State's burden of proving its case beyond a reasonable doubt as well as those four potential verdict forms, guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty. Can you do that?
JUROR: Yes, sir.
THE COURT: I will instruct you on the particular aspects of all four of those verdict forms at that time. Do you understand that?
JUROR: Yes, sir.
THE COURT: And you can apply my instructions and evaluate the evidence and testimony presented to you.
JUROR: Yes, sir.
THE COURT: Being fair to both the State and the Defense?
JUROR: Yes, sir.
THE COURT: If a verdict of not guilty or not guilty by reason of insanity happens the case ends. If the State meets its burden of proof, proves the murder beyond a reasonable doubt phase two commences. In phase two the State is then required to prove the aggravating factor. I am going to give you five. The murder of a policeman, the murder of a child, rape of murder, kidnapping of murder, murder of multiple people. Those are aggravating factors. The State must prove one beyond a reasonable doubt in order to be in a position to ask a jury to enter and find a sentence of death. Okay. They have got to prove that during the sentencing phase. During the sentencing phase also the Defense presents evidence of mitigation. Mitigation are reasons to give life. Okay. I am going to read you some of the statutory ones and ask you a similar question. 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 Defendant was provoked by the victim in committing the murder. The age or mentality of the Defendant at the time of the crime. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Those are statutory mitigators. Also mitigators that aren't set forth in the statute but jury's can use them as reason that they wish to impose the life sentence which will be Mr.
Jones' childhood history, his walk in life, his coming from an abused home if that was the case. Any aspect of his growing up, coming along can be considered by a jury as mitigators also. Now, understanding in the sentencing phase, jury's have got two choices, life or death. The State proves the aggravating factor beyond a reasonable doubt and those are the two punishments jury's can consider. One of the two, no middle ground, no other options. Can you give meaningful consideration to the State's duty and responsibility to prove the aggravating factor beyond a reasonable doubt as well as consider all of the mitigating factors in evidence in supporting those factors in reaching a fair punishment in this case?
JUROR: Yes, sir.
THE COURT: Now, can you or do you have any personal or religious or emotional, personal belief that you could not find, if the evidence supported it, consistent with my instructions, a punishment of death. Could you do that?
JUROR: Could I?
THE COURT: If assuming the State proved the aggravating factor and you consider all of the evidence.
JUROR: Yes.
THE COURT: Consistent with my instructions evaluating that evidence, could you find a sentence of death?
JUROR: Yes, sir.
THE COURT: Now, do you have any religious, moral or personal belief which would prevent you from finding a sentence of life without parole?
JUROR: No, sir.
THE COURT: And I am going to go back and ask the other question in the same fashion. I am not sure I did. Do you have any religious, moral or personal belief which would prevent you from entering a death penalty sentence if the evidence supported it?
JUROR: No, sir.
THE COURT: Do you have any reason whatsoever you can't be fair to both sides?
JUROR: Not right now, no.
THE COURT: Okay. Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, Mr. Cunningham.
JUROR: Good afternoon.
BILL MCGUIRE: This is the opportunity where the lawyers get to talk to you about your views about the death penalty for murder and if you don't understand any of my questions or if I ask a bad or confusing question you just start asking me questions. Okay?
JUROR: Okay.
BILL MCGUIRE: I am going to put you in a spot, imagine that you are Governor of South Carolina for a day and you have got a Bill on your desk and it says we can have the death penalty or we can not have the death penalty. What, how would you go?
JUROR: I would have the death penalty.
BILL MCGUIRE: And that sort of implies you believe that there is a purpose, it serves a purpose to have the death penalty?
JUROR: Yes sir, I do.
BILL MCGUIRE: And what do you think that is?
JUROR: Depending on what the circumstances are in that, if you are found one-hundred percent guilty, if taking somebody's life then I do believe that you should be, have that chance of a sentence as well.
BILL MCGUIRE: If you are one-hundred percent guilty of taking someone's life the option of the death penalty--
JUROR: Is on the table.
BILL MCGUIRE: Okay. And some people say that the death penalty is reserved for the worst of the worst crimes. Do you believe that or do you think we should use it more often?
JUROR: No, I mean I think it should be the worst crimes. I mean, if you go steal something I don't think you should be sentenced to death, if that is what you are asking.
BILL MCGUIRE: That is not what I am asking. The phrase that the Judge sometimes uses is like a plain old murder, a vanilla murder, if the State one-hundred percent proves somebody guilty of taking an innocent life, an eye for an eye, does that phrase resonate with you, an eye for an eye?
JUROR: I mean for the most part, yes. I mean, if you take somebody's life and you, and that is what you have done and you are, once again proven guilty, yes, I do believe in the death penalty from that standpoint.
BILL MCGUIRE: Okay. The Judge read to you the indictments earlier. You know the case is about the murder, well, the killing of five innocent children.
JUROR: Yes.
BILL MCGUIRE: And I can't remember, did you stand up and say you heard some publicity or did you not hear some publicity?
JUROR: No sir, I didn't hear any publicity.
BILL MCGUIRE: Because this incident happened about four years ago, you don't remember anything back then?
JUROR: No, sir. If you need something else I can explain more but I don't really watch the news or anything like that.
BILL MCGUIRE: Okay. I got you. Some folks would say, when it comes to innocent defenseless children that they don't really need to hear specifics like the background of the Defendant, if he was black or white, grew up rich or poor, broken home, parents stayed married, tough childhood, privileged childhood. And they don't really need to hear the specifics of how defenseless children are killed, they are drowned, shot, strangled. Basically some people would take the position, if all of the evidence points to guilty, beyond a reasonable doubt, intentionally, deliberately taking the life, lives of innocent children the death penalty is the appropriate penalty.
RICK HUBBARD: Objection to the form of the question.
THE COURT: Rephrase that.
BILL MCGUIRE: Judge, I put all the facts in there.
RICK HUBBARD: Not mitigating.
BILL MCGUIRE: I did.
THE COURT: Rephrase--
RICK HUBBARD: Not describing mitigating, that sounds misleading.
BILL MCGUIRE: I object to the characterization of misleading, that is not true.
THE COURT: I really,--
BILL MCGUIRE: I put all the facts in there.
THE COURT: I was looking at something else and I didn't hear so rephrase it for me.
BILL MCGUIRE: Okay, I can do that, that would make me less angry.
THE COURT: Okay.
BILL MCGUIRE: Some folks would say, when it comes to the specifics of a case, of a case of murder of children, killing of children. They would say I don't need to hear all the facts. Background of the Defendant, grew up poor, grew up privileged, parents, broken home, parents stayed together, had a hard row of it, had a privileged easy life, these things, the background, the character of the Defendant. Don't need to hear that. And they would also say don't need to hear the specifics of the crime. I don't care if the kids were drowned, strangled, shot, this kind of person would say, all I need to know, if the State proves beyond a reasonable doubt an intentional killing, taking the lives of innocent, defenseless children. That is what I need to know, then in that case the death penalty is appropriate? Do you agree with that.
RICK HUBBARD: Here is my objection. Just one word, mitigating factors including.
THE COURT: He named off all of those.
RICK HUBBARD: He named them but didn't say what they were. That is what is confusing to someone just off the street.
THE COURT: All right. I think he did that and I understand your objection because we have had this question phrased 25 different ways. Can you answer that question or was it too lengthy.
JUROR: It was lengthy but, I mean, if you are found guilty of killing the kids is it would have to be an extraordinarily defense system for me personally to say that you should not get the death sentence from that. I would consider all of that stuff in play but, I would consider it.
BILL MCGUIRE: But when it comes down to it, letting a killer committing that kind of act, murder, killing innocent children, the life sentence, letting that person live out their years in prison, is that severe enough, harsh enough to punish that kind of killing of innocent children.
JUROR: I would have to hear all of the evidence to actually make that determination.
BILL MCGUIRE: What about the background of the person who did the killing. Some folks say and remember, we just want your personal views here, everything you say is correct today. If it is your honest opinion you can't be wrong. Now, some folks would say, I am going to focus on the crime and the punishment is going to fit the crime. And when it comes to the background of the Defendant--
THE COURT: That has already been asked. That is asked and answered. That was your last question that went so lengthy.
BILL MCGUIRE: No, I asked if the death penalty as an appropriate punishment.
THE COURT: Sounds like the same question. Go ahead.
BILL MCGUIRE: Okay, thank you. It is short.
BILL MCGUIRE: If the background of the Defendant, like if he grew up poor, things that happened to him 20 years ago, and they are not related to the crime itself. Some people would say, when it comes to fixing punishment for the killing of innocent children I am not going to look at his background and character and stuff that happened a long time ago. How do you fall out on that?
RICK HUBBARD: I would object, that is asked and answered.
THE COURT: That is asked and answered. That is the same question.
BILL MCGUIRE: So, I am going to take you now to the first phase. The Judge talked to you about some potential verdicts. One of them is not guilty by reason of insanity. And as the Judge told you, if the jury finds the Defendant, Mr. Jones, not guilty by reason of insanity the trial ends. The jury doesn't have the opportunity to get to the sentencing phase, the jury will not be able to deliver punishment. Some people would say, I don't want to consider not guilty by reason of insanity because the deaths of five children, I want to get to that sentencing phase. What are your thoughts about that?
JUROR: I mean if the jury comes back with that then, you know, that is what the jury comes back with. I mean, when I get to the sentencing phase, me personally, whether I get to the sentencing phase or not step one, step two. We have got to go through step one first. That one is is he guilty. And then once we get to that phase then you got to the next phase or no next phase, if that is the case.
BILL MCGUIRE: Right. Some people would say not guilty by reason of insanity sounds like a excuse or a copout, does that, is that a phrase you would agree with. What are your thoughts about that?
JUROR: I mean, I personally believe that you, in order to do certain crimes like this that there has got to be something wrong with you to a certain point. But, I mean, it doesn't affect whether, what I am going to judge or a jury on that or particular phase or whatever.
BILL MCGUIRE: That sounds right. What I am going to take you to, assuming we get to that second phase, that sentencing phase, I want to take you there. Let's talk about that a little bit. Okay?
JUROR: Okay.
BILL MCGUIRE: When we get to that phase or if we get to that phase there is a lot of individuality involved. The jury, there are twelve individuals as opposed to a group. Everybody has to make their own--
RICK HUBBARD: Objection.
THE COURT: To the form?
RICK HUBBARD: Yes, sir.
THE COURT: Go back to the way you were asking earlier. You have evolved into this thing. Go to mitigating facts. Go down that line, it is the same question you are going to.
BILL MCGUIRE: I think it is the same thing.
BILL MCGUIRE: So the Judge would instruct the jury they can find for the life penalty, life without parole, for any reason, no reason, mercy alone. Does that sound fair to you?
JUROR: I don't understand.
BILL MCGUIRE: So the Judge, the Court, the Judge, at the very end of the case, there is a part in his instructions where he would actually say, I am telling you all right now, any individual Juror can vote for the life penalty, life without parole for any reason, no reason and mercy alone. Does that sound fair?
RICK HUBBARD: Objection to the form, individual Juror, that is not the charge.
THE COURT: I am going to allow the question. Go ahead.
BILL MCGUIRE: That is my question.
JUROR: Okay. I mean, yes, if I have been instructed to do what the Judge is, has ruled on, so yeah, it is fair.
BILL MCGUIRE: And you would expect twelve individual people charged with determining whether a fellow human being lives or dies, that is, it is probably the most serious decision a human being could ever make?
JUROR: Yes, sir.
BILL MCGUIRE: And twelve different people, from twelve different places, twelve different walks in life, you would expect some disagreement?
JUROR: I mean, yes sir, for the most part there could be some disagreements, yes.
BILL MCGUIRE: And it is against the rules of court, it is against the law for a Juror, if they say, I have come to my conscientiously held belief, I believe the life penalty is right for me. I do not want to vote for the death penalty. That is my own individual moral judgment. For them to abandon that position just to throw in with the majority, just to join a bigger group, that is actually wrong. Did you know that?
JUROR: I mean, yes, I mean morally wrong and probably wrong in the law as well, yes.
BILL MCGUIRE: It absolutely is.
JUROR: It is whatever you believe at that time, yeah.
BILL MCGUIRE: The way the law describes it, once somebody reaches their individual moral judgment, if it would harm their conscience to change it, just to join that majority, that is against the rules. Does that sound right to you?
JUROR: Yes, sir.
BILL MCGUIRE: And the law says these proceedings have to be conducted with dignity, decorum and respect. And we expect reasonable deliberations and civil discourse. But it is wrong to try to coerce somebody out of their individual position. And if you saw that intimidation, coercion, trying to force somebody to abandon their position to join, for the sole sake of joining the majority could you jump in and stop them?
JUROR: I am a pretty fair guy so I, yes, I would say I would, yes.
BILL MCGUIRE: And one of the ways you could do that is you could write a note out to the Judge. Judge, I believe a Juror has got to their position, I think it would harm their conscious for them to change their vote, people are trying to coerce that person, it is unfair. We need some help getting some civility back in here. Judge, could you help us. Could you write that note out.
JUROR: Yes, I would, yes.
BILL MCGUIRE: Or ask the Foreman to do it for you?
JUROR: Yes.
BILL MCGUIRE: When you showed up Monday past, when we all met at the big courtroom at the old Court House, did you recognize any friends or coworkers or anybody?
JUROR: No.
BILL MCGUIRE: Okay. That is all I have for you.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Cunningham, my name is Rick Hubbard. How are you?
JUROR: I am doing good, how about you.
RICK HUBBARD: Doing good. I won't be too long. I just want to go over a few things, the Judge has already gone over a good bit of it but I just want to make sure I understand too that we are all on the same page. That first stage of the trial which determines whether the Defendant is guilty on one of those other verdict forms the Judge mentioned. He mentioned four.
JUROR: Yes, sir.
RICK HUBBARD: It was guilty, guilty by reason of insanity, I mean, guilty but mentally ill, not guilty by reason of insanity and not guilty.
JUROR: Yes, sir.
RICK HUBBARD: My understanding is you would consider all of those?
JUROR: Yes, I would consider them all, depending on the facts of the case really is what it boils down to.
RICK HUBBARD: So comes down to the facts?
JUROR: Yes, sir.
RICK HUBBARD: You can give meaningful consideration to each and every one of those verdicts, depending on the facts?
JUROR: Yes, sir.
RICK HUBBARD: Now, say you get to the next stage. Would you want to hear all the evidence in the next stage before you render a sentence and punishment. Would you want to hear all the facts?
JUROR: Yes, but so there would be more facts in the second phase as well too before sentencing.
RICK HUBBARD: Yes, sir. What the Judge has mentioned. You have heard a lot today, you probably been fed with a firehouse today. Have you ever served on a jury before?
JUROR: Nothing like this, no. I went to traffic court one time.
RICK HUBBARD: And it is nothing like this?
JUROR: No, sir.
RICK HUBBARD: Here's what is different. The first part of the trial is like trials you see on TV. A jury does its job and then a Judge, if a person is convicted, the Judge does the sentencing. A death penalty case or a Capital case, the jury does the sentencing. But what we do is we have a second hearing, trial. So all of those jurors still sit over here, the Judge still sits up there and then before death can even be on the table, before you can consider that, the State has to prove at least one aggravating factor. And the Judge will tell you what those are and I think he mentioned murder of more than one person, a child under eleven, he went through a series of them?
JUROR: Yes, sir.
RICK HUBBARD: You have to find beyond a reasonable doubt the State has done that or you can't get that. Do you understand that?
JUROR: Yes, sir.
RICK HUBBARD: And if the State fails to do that would you give death?
JUROR: No. If they failed to do that, no.
RICK HUBBARD: And the Judge talked about mitigating circumstances. Those are things that might put the Defendant in a better light, some of them are wrote by statute, by law, say I want you to consider these things. Some are just going to be some of the things Mr. McGuire mentioned. The background of the Defendant, some other things like that. Maybe some things in his life, relationships in his life that might put a different light on who he is. Would you be willing to consider those things and give meaningful consideration to those things as well before you render a verdict, a sentence?
JUROR: Yes, sir.
RICK HUBBARD: Would you be willing to give death or life depending on what you hear about aggravating and mitigating evidence?
JUROR: Yes, sir.
RICK HUBBARD: You would be willing and able to do either one?
JUROR: Yes, sir.
RICK HUBBARD: Depending on what happens in this courtroom.
JUROR: Yes, sir.
RICK HUBBARD: That is all we can ask you to do. Thank you, sir.
THE COURT: Mr. McGuire.
BILL MCGUIRE: I just have something for the Court.
THE COURT: Let me ask you step out and have you right back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. McGuire.
BILL MCGUIRE: Move to strike for cause. Mr. Cunningham indicated that the killing of five children would have to be, for it not to be the death penalty it would have to be some sort of extraordinary series of events proven by us. So that would be he is mitigation impaired, he is predisposed to death. And then he is a burden shifter since we would have to prove something extraordinary to get him off of that. That would be, he is predisposed under evidence. Thank you.
RICK HUBBARD: Your Honor, I think, basically the question put out, why I was objecting is because when he starts listening to all of this information, Judge, he has heard so much he doesn't even know what this is. This is the mitigating circumstances Your Honor has been talking about. So he doesn't even know, is this something arbitrary being brought into this courtroom or what. And my objection usually is about, based on the fact that most jurors are going to think stuff outside of this case just don't matter because he is being tried for something. But Your Honor has given them some indication that there are these mitigating circumstances. That is why that question is so loaded because it is couched, all right, I am giving the circumstances but I haven't told them that is what they actually are. This is what the Judge is talking about. And so, that is why it is loaded. But when I went back to him he said he could do both and he could give meaningful consideration and act on those mitigating circumstances. He could vote life or death.
THE COURT: He did answer initially one way to Mr. McGuire's question. But then as Mr. McGuire continued to, the Juror wanted to hear more facts and circumstances. The questions continue, he wanted to hear more and more and wanted to hear all the testimony before imposing either sentence. I am balancing and understanding the totality of everything. I find that he is qualified. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Cunningham, the Court has found you to be a qualified Juror. You are to follow the internet, website you have been following to when to come back in on the panels. The same address, check back on that thing tonight. It will say, qualified jurors, please check back tomorrow. It may say, please come back to the main courtroom on a date and time. Follow the instructions to qualified jurors, one of those. Now that you are qualified and you are coming back, you are not on the jury but you are on the potential group, a jury you could be selected from. Because of that do not talk about the case, don't communicate about the case, answering questions about the case. Don't want you doing any independent research. You don't watch the news, continue doing just that. I don't want anything to impact your decision making. The decision on this case will come from here in this courtroom, not outside. No independent research, don't let people influence your decision making. I want you to come back in and be ready to consider what is presented to you when you are put on the jury. Can you do that.
JUROR: Yes, sir.
THE COURT: See you soon. Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: 26.
BAILIFF: He didn't show.
THE COURT: He didn't show. Let's bring in 392. (Whereupon, Juror 392, Richard Shinn entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: My name is Mr. Shinn?
JUROR: Yes, sir.
THE COURT: Can you say and spell your name?
JUROR: My name is Richard Shinn. Richard, S-H-I-N-N.
THE COURT: Okay, Mr. Shinn, I told you the first question, I remind you you are under oath, have you communicated about the case in any way with anyone?
JUROR: No, sir.
THE COURT: Has anyone tried to communicate with you about the case?
JUROR: They have tried but I stopped them. Coworkers mostly but I can't talk about it.
THE COURT: You can't talk about the case or something along those lines?
JUROR: Yes, sir.
THE COURT: So you have not engaged in any conversation about the case?
JUROR: No, sir.
THE COURT: Publicity has happened in this case, there has been a lot of information some four years ago, several months ago, over the last two weeks. A lot of publicity. I, in fact, read the indictments too so you heard that information, the allegations the State is making against Mr. Jones, he is presumed innocent right now. Now, based upon any information including the information provided by me, has any of that information, no matter when you got it, where it came to, where you heard it, I don't care, has any of that information caused you to have already formed an opinion as to what happened?
JUROR: No, sir.
THE COURT: You haven't formed an opinion?
JUROR: No, sir.
THE COURT: Now, subject matter in this case involves the death of children. Testimony and evidence will be towards that subject matter. I am told by the lawyers, I have not heard the evidence yet. I am told by the lawyers, they have all described it to me in one way or another, graphic, harsh, unpleasant, tough, words to that end. Would tough and difficult testimony regarding the death of children, that subject matter create an issue for you?
JUROR: It is not an issue but it is children.
THE COURT: Now, the testimony is--
JUROR: It is going to be hard, yes.
THE COURT: Yes. But it is, I want to know, is that going to create an issue because everybody comes from a different place. But understanding it is going to be tough testimony, is that going to create an issue for you, because of its impact on you personally, going to create an issue you can't be fair and impartial to everyone.
JUROR: No sir, I don't believe.
THE COURT: You can do that, you can be fair?
JUROR: Yes sir, I can be fair.
THE COURT: Now, I ask you to tell me about your upcoming calendar, say commencing Monday toward the end of May, early June. What have you got on the horizon on your calendar?
JUROR: Monday, May 20th I go on company business, I have got to go out-of-state for the week.
THE COURT: May 20th?
JUROR: May 20th through the 24th.
THE COURT: You are already committed to that?
JUROR: Yes, sir. Plane tickets have been bought.
THE COURT: Number 392 will be excused for work. All you have got to tell me is that. Thank you so much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 181. (Whereupon, Juror 181, Matthew Haslinger entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: You were on the back row?
JUROR: Yes, sir.
THE COURT: I want you to say and spell both your first and last name loud enough so the microphone will pick you up and loud enough that Ms. Holston won't fuss at me about you talking too soft.
JUROR: My name is Matthew Haslinger. M-A-T-T-H-E-W, H-A-S-L-I-N-G-E-R.
THE COURT: Mr. Haslinger, did I say it right?
JUROR: Yes, sir.
THE COURT: Okay. I asked you last Monday to not talk about the case, under oath you promised me that. Has anybody tired to talk to you about this case?
JUROR: No, sir.
THE COURT: Have you talked to anyone about this case?
JUROR: No, sir.
THE COURT: There has been information out there through publicity, lots of publicity in this case, some several years ago, several weeks ago, last ten or twelve days publicity. I read to you the five indictments, the allegation the State is making against Mr. Jones, he is presumed innocent right now.
JUROR: Yes, sir.
THE COURT: Has any of that information, from me or otherwise, from any source at any time, where ever you got it, I don't care. Has that information caused you to already form an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: Have not formed an opinion?
JUROR: No, sir.
THE COURT: Subject matter in this case involves the death of children. I have not heard any of the evidence, I haven't seen it. I will be receiving it with the jury as it comes in. The lawyers have all shared, they described it to me as difficult, harsh, tough, difficult, graphic, all words that would be impacted. Testimony regarding the death of children, that subject matter, tough testimony, will that put you in a place where you could not receive testimony of that subject matter fairly and also give both sides a fair trial. The difficulty, impact on you personally, can you receive testimony of that type of subject matter?
JUROR: Yes, sir.
THE COURT: And then act as a fair and impartial Juror for both sides?
JUROR: Yes, sir.
THE COURT: I asked you to come in prepared to tell me about your upcoming two or three weeks on your calendar, whether work, personal, vacation. What does your calendar look like from say Monday towards the end of the month?
JUROR: From the 11th, this Saturday, to the 31st I will be in Greece.
THE COURT: You will not be available to be called as a Juror?
JUROR: I have this trip--
THE COURT: That is all I need. What are you going there for?
JUROR: My father turned 63 and my family and I surprised him with a trip to Greece.
THE COURT: That is a wonderful gesture and I am not going to get in the way of that. Enjoy.
JUROR: Thank you, sir. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 343. (Whereupon, Juror 343, Brian Pugh entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Are you Mr. Pugh?
JUROR: Yes, sir.
THE COURT: You are under oath. I am going to ask you to spell your first and last name for Ms. Holston to make sure she can hear you and she has got the right spelling.
JUROR: Okay. Brian, B-R-I-A-N; Pugh, P-U-G-H.
THE COURT: Now, you are under oath, I want truthful answers. I put you under oath back Monday a week ago.
JUROR: Yes, sir.
THE COURT: Has anybody tried to communicate with you about the case?
JUROR: Family, friends.
THE COURT: What did you tell them?
JUROR: Nothing.
THE COURT: Did you tell them that the Judge said don't talk about the case?
JUROR: Yes, sir.
THE COURT: That is a very appropriate response?
JUROR: Right.
THE COURT: Did you talk to anybody about the case that didn't ask you?
JUROR: No.
THE COURT: Now, there has been publicity, a lot of news, social media, four years ago, several months ago, the last couple of weeks, a lot of publicity coming out about this case. I provided you facts alleged by the State when I read the indictments to the whole jury panel so those are the facts coming at you that you received information.
JUROR: Right.
THE COURT: So any information received from where ever source, you were under a responsibility before Monday to not pay attention to it and try to avoid it. Before that you could pay attention all you wanted. So I am asking this, any information you have received to date, right now, whether it is from me, social media, news media, television, radio, I don't care?
JUROR: Before Monday?
THE COURT: Any time, any information you have received.
JUROR: Yes.
THE COURT: Has that information caused you to have already formed an opinion as to what happened in this case?
JUROR: Yes.
THE COURT: What do you think happened. There is no wrong answers. What do you think has happened?
JUROR: What I think happened in the case?
THE COURT: Yes.
JUROR: That he killed his children.
THE COURT: You think he is guilty right now?
JUROR: I absolutely do.
THE COURT: Okay. Can I talk you out of that?
JUROR: No.
THE COURT: Okay. And you understand he is presumed innocent but you have, because of the media attention, this has caused you to form an opinion. Do you agree with that?
JUROR: I agree.
THE COURT: I don't think you are qualified, I think I will excuse you. I am looking for people who hasn't heard a word. Thank you for coming and you are free to go.
JUROR: Thank you, sir. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring number 8, Wendy Allison. (Whereupon, Juror number 8, Wendy Allison entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Allison?
JUROR: Hi.
THE COURT: How are you doing?
JUROR: Good.
THE COURT: I am going to ask you to say and spell your first and last name so Ms. Holston can determine she has got the right spelling and whether you are talking loud enough.
JUROR: Okay. Wendy Allison. W-E-N-D-Y, A-L-L-I-S-O-N.
THE COURT: Ma'am, I asked you last Monday, placed you under oath to not communicate about the case. Has anyone tried to communicate with you about this case?
JUROR: No.
THE COURT: Have you communicated with anybody this case?
JUROR: No.
THE COURT: There has been a lot of publicity in this case, several years ago, several weeks ago, many months ago, any time, I am not really worried about when because you were under the responsibility to me for that kind of disregard. You could receive, consider it, no responsibility because you didn't know you were coming in here. Now, I want to know about any information you received including me reading the indictments. That is information also. The State's allegation against Mr. Jones. Has any information you received up to this point right now, over the last whatever time, caused you to already form an opinion as to what happened in this case?
JUROR: No.
THE COURT: Okay. Have not formed an opinion?
JUROR: No.
THE COURT: I asked you also to come into court and tell me about your calendar in the couple of weeks, commencing next week into the end of the month, early June. What have you got on your calendar?
JUROR: Nothing.
THE COURT: So you will be available if you are seated as a Juror?
JUROR: Yes.
THE COURT: Now, the allegations in this case include allegations of murder, children, the subject matter will be to that end. That subject matter has been described by the lawyers, I have not seen it, they have described it to me so that I can ask this question. It is graphic, tough, it is unpleasant. That testimony, I don't think they are going to mislead me to ask that question. Understanding the testimony will be tough and difficult involving that subject matter, would that put you in a position that would affect you to the extent that you could not fairly evaluate that evidence and not be fair to both sides?
JUROR: No.
THE COURT: Can you be fair and impartial in light of the subject matter of that testimony?
JUROR: Yes.
THE COURT: I gave you a witness list and ask you to look over it and see if you knew anybody. How many witnesses do you know?
JUROR: I only recognize the name of one person, FBI, Dave Mackey. He doesn't know me, I don't know him but my daughter works with him.
THE COURT: Okay. What does your daughter do?
JUROR: She is an SOS at the FBI.
THE COURT: What is an SOS?
JUROR: They, do ambatable (phonetic) work.
THE COURT: She is an FBI employee?
JUROR: Yes.
THE COURT: Here in the Columbia office?
JUROR: Yes.
THE COURT: Now, do you have any idea whether or not your daughter done any work on this case?
JUROR: She does terrorism, she does JTTF Task Force. She usually works with terrorism.
THE COURT: Okay.
JUROR: So I don't think she has had anything, and if she has she can't talk to me about it.
THE COURT: Correct. You have not talked to her about it because you didn't know?
JUROR: No.
THE COURT: How often, do you have any idea of her relationship with Mr. Mackey.
JUROR: No, he, they work in the squads next to each other but they don't work together, together. But I have heard her mention his name.
THE COURT: He works in maybe perhaps another division?
JUROR: He works in the same building and, I mean, she can see, I mean, I think they work not in the same, they call them--
THE COURT: Pod?
JUROR: Yeah, yeah. Squads, not in the same squads because I think he works in a different division.
THE COURT: Do you have an--
JUROR: But I don't know--
THE COURT: I am going to use the idea, I enjoy NCIS, it is a show I always watch, open bay, they can kind of talk to each other, maybe like that.
JUROR: I think he works a little further away. I mean I don't think she sits at her desk and speaks with him.
THE COURT: Okay. Now, understanding Mr. Mackey is going to likely, I have heard some, seen enough about the case to know he will present something in the case. Do you believe your daughter's relationship with him as a coworker in the same office, would that create a position for you to being fair and impartial if you had to consider his testimony?
JUROR: No, I never met him. Like I say, I just know his name and so I don't have any feelings towards him one way or the other.
THE COURT: Okay. Now, I asked, I gave you instructions earlier on the aspects of criminal procedure in a Capital case, two phase, phase one is the guilty or innocence. The jury makes the determination of whether the State has met its burden of proving the case. If the State does prove its case beyond a reasonable doubt to the murder the case goes to phase two which is the sentencing. In the sentencing the jury considers aggravating factors if the State can prove them and mitigating factors the Defense shows. Jurors evaluate all of that. Broad picture, big wide view lens. I asked you to identify yourself as a typical Juror, type one, two or three. Did you read over that sheet?
JUROR: Yes.
THE COURT: You understood my instructions on the aspects of a Capital case?
JUROR: Yes.
THE COURT: Can you find yourself, identify yourself as one of those three types?
JUROR: Three.
THE COURT: Type three?
JUROR: Yes.
THE COURT: Now, what do you think type three means. I wrote it and I know what I meant.
JUROR: I think it means, I would have to know all of the circumstances of the case, I can't just say because it is a murder, it is a murder and he is accused of killing his five children. I can't say he did, it should be death without seeing all the evidence. I would have to see everything to make that decision.
THE COURT: You want to see everything, good or bad?
JUROR: Right.
THE COURT: Then make a decision?
JUROR: Right.
THE COURT: Let me go back through the answer to that question. I want to go back through the answer to that question. I want to go back through a couple of other aspects of the case. In this case, phase one is guilt or innocence. The State goes first, they call their witnesses first because they have got to prove beyond a reasonable doubt. Killing of another, malice aforethought. That is there responsibility, have got to prove those elements to the jury's unanimous verdict of beyond a reasonable doubt. They call the witnesses first in doing so. Now, to a murder case people accused have several defenses. I am going to read all of the defenses they may have. I am going to instruct on some of them at the trial but if there are other testimony that could be considered on one of these defenses I may instruct on more than one. I want to make certain you can understand that they, these are potential defenses. Potential defenses, identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, alibi and duress. Those are potential defenses that a person accused can have evidence to support. If the evidence presented could support it then a jury gets to hear instructions on the aspects of the law pertinent to that defense. And the jury gets to consider in considering the evidence supporting it to make a decision. Can you act fairly and impartially to both the State and the Defense in this case, considering my instructions on the State's burden of proving its case beyond a reasonable doubt, all the elements to murder. Can you be fair and impartial to both the State and the Defense on that?
JUROR: Yes.
THE COURT: Can you also consider any testimony, any evidence which may support any of these defenses and my instructions on those particular defenses, weigh it consistent with my instructions and be a fair and impartial Juror for both the State and the Defense?
JUROR: Yes.
THE COURT: Now, if the State does not meet its burden of proof, it fails or if the jury finds a verdict of not guilty by reason of insanity, let me go back and ask another question. Let me back up. Because of the plea entered by Mr. Jones, not guilty by reason of insanity, that brings to play four potential verdicts in this case. Guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty all together. The Court will instruct likewise on particulars of those aspects of those verdict forms individually. Can you give meaningful consideration to each and every one of those four potential verdicts, consider the evidence in the case and act fairly and impartially to both the State and the Defense?
JUROR: Yes.
THE COURT: You can do that?
JUROR: Yes.
THE COURT: If the State fails to meet its burden of proof or the jury makes a finding of not guilty by reason of insanity the case ends. There is no further. If the State meets its burden of proof proving the crime of murder beyond a reasonable doubt it goes to phase two. In phase two the jury is presented with an option of considering the punishment. You have got two choices, death or life, nothing else is on the table, death or life. No in between, no other options. In that part of the case the State has then got to prove an aggravating factor. I am going to name off a few 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 murders. The State has got to prove one of those five beyond a reasonable doubt in order to be able to ask the jury to consider imposing the death sentence. Do you understand that you will be tasked with hearing the State's aggravating factor and they have got to prove beyond a reasonable doubt in that phase. Do you understand?
JUROR: Yes.
THE COURT: All right. Also during that phase there is mitigating factors or mitigating evidence also presented by the Defense. Mitigators are reasons to assign life without parole. Aggravating would go one way, mitigators going the opposite way. Do you understand?
JUROR: Uh-huh. (In the affirmative.)
THE COURT: Statutory mitigating factors include the Defendant has no significant history of prior criminal history 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 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. The Defendant had mental retardation at the time of the commission of the crime. Those are statutory mitigators. The Defense may present to support some of those. The Defense may present other testimony concerning Mr. Jones' raising, his childhood, things that happened to him along his life. All aspects of his prior life can be submitted by the Defense and those can be considered mitigating factors by the jury. In this phase jury's are required to consider the State's burden of proving the aggravating factor as well as consider any and all mitigating evidence presented. Considering all of that then they must reach a verdict as to which punishment to vote on. Do you understand?
JUROR: Yes, sir.
THE COURT: Can you give meaningful consideration to all the testimony, whether it be testimony to support the aggravating factors, the State's burden of proving beyond a reasonable doubt. And any mitigating factors presented by the Defense which would support the imposition of a life sentence, consider my instructions on the law and evaluate that testimony and evidence in reaching a decision. Can you do that?
JUROR: Yes.
THE COURT: Can you be both fair to the State and the Defense in doing so?
JUROR: Yes.
THE COURT: Do you have any moral, personal or religious reason, belief, that you could not find a verdict of death?
JUROR: No.
THE COURT: Do you have any moral, personal or religious belief that would prevent you from finding a life without parole sentence?
JUROR: No.
THE COURT: Do you have any reason whatsoever you can't be fair and impartial?
JUROR: No.
THE COURT: All right.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Hi, Ms. Allison, how are you doing?
JUROR: Good.
ROBERT MADSEN: My name is Rob Madsen and I am one of Tim's lawyers. The Judge kind of went over with you a little bit about being fair and impartial and the law. I just want to talk with you about your feelings, okay. So the great part about it is you can't give right or wrong answers, just trying to find out what your feelings are. If I remember correctly back Monday a week and a half ago, when the Judge asked about publicity you stood up. Can you tell me what you remember hearing?
JUROR: Well, I remember, I haven't heard any publicity recently because I haven't watched the news or anything. I just remember the case from 2014. And I didn't listen to a lot of the case. The only things I remember is that the children were found in Alabama. I didn't see all the interviews, I was working 65 hours a week so I didn't watch the local news. Other than that I heard about the case but I didn't read a lot of articles.
ROBERT MADSEN: When you heard about that then did that cause you to form any kind of opinion?
JUROR: Since I really didn't remember how it happened with the circumstances, I, no.
ROBERT MADSEN: When you came in on that Monday did you know any of the other jurors?
JUROR: No.
ROBERT MADSEN: So as you heard, well, let me ask you this. Can you just kind of tell me your overall view of the death penalty?
JUROR: In order for me to give someone the death penalty I would have to know without a shadow of a doubt that he committed those murders with intent. I mean, like I couldn't give that to anybody. I would really have to know, I would have to look at the evidence.
ROBERT MADSEN: Would you say the death penalty is a penalty of the last resort in just extreme cases?
JUROR: I think any time there is like children involved and, yes, I would agree with the death penalty.
ROBERT MADSEN: Is that something that you think the death penalty serves a purpose?
JUROR: I just think that would be the proper punishment for that crime.
ROBERT MADSEN: Okay. And so let me ask you this then. As the Judge told you about the different forms of a verdict. As you heard Tim has plead not guilty by reason of insanity. And what that means is someone is saying, hey, I did those acts, I killed them but because of a mental disease or defect I cannot appreciate the legal or the moral wrongfulness of my actions. As the Judge told you, that means the trial stops. There are some people that says, for someone who says I did it but because of that mental disease or defect, you know what, for me I just, I couldn't consider that verdict. And my question is, is that you?
JUROR: No, I believe there are cases where, they are mentally, they just don't know what they are doing at that time.
ROBERT MADSEN: So if you were presented evidence you could consider that and you know that it was appropriate you could vote that?
JUROR: Right.
ROBERT MADSEN: So you kind of hit on it a little bit earlier and I want to talk with you now about your feelings about punishment for a guilty murderer of multiple children. So I want to put you in the jury box and what I am talking about is you and eleven other jurors have found the person guilty of multiple murders. So if you have heard anything about mental health or anything like that you have determined that that person knows the difference between right and wrong. And not an idea, you know that they killed those multiple innocent children. There isn't any kind of excuse or justification or any type of defense whatsoever. And my question is, is that, if you get to that point in that, where you have found that person guilty, guilty, guilty, no doubt whatsoever. What is your feelings without hearing anything else that the death penalty is the appropriate punishment for that guilty murderer of those innocent children?
SHAWN GRAHAM: Objection, form of the question.
THE COURT: Form of the question included without hearing anything else.
ROBERT MADSEN: Yes, sir.
JUROR: Can you repeat that.
ROBERT MADSEN: Sure. So, my question is, you have got this person who you know is guilty, no excuse, no defense, they knew the difference between right and wrong. So we know it is an intentional killing of multiple kids. And so my question for you is, in that situation without hearing about anything else what is your feelings as the death penalty is the appropriate punishment for that guilty murderer of multiple children?
JUROR: If he did it without a shadow of a doubt and he intended to do it and he knew what he was doing, yes, I believe the death penalty is proper.
ROBERT MADSEN: And in that situation a life without parole sentence is never appropriate in your mind?
JUROR: No, not for killing five children and if he knows, if there was not other circumstances.
ROBERT MADSEN: And so in that situation where that person, as you said, without a shadow of a doubt--
JUROR: Without a shadow of a doubt.
ROBERT MADSEN: They are the person that did it. Their background from 20 years ago, how they grew up, whether they grew up rich or poor or had a good life or a bad life, those aren't things, it sounds like to you that the act itself in knowing that without a shadow of a doubt they are the ones that killed these innocent kids--
JUROR: No, if there was a background of mental instability or there are certain, that would be different.
ROBERT MADSEN: Tell me how so?
JUROR: May I refer to the cases.
THE COURT: You may most certainly. A Like the Andrea Yates case where she killed her five children. I feel sorry for her, like I did not believe she should get the death penalty because she was schizophrenic and that type of thing. Okay. And, you know, even though she killed her five children because of other circumstances and the way her condition was I would not have given her, you know,--
ROBERT MADSEN: I am not one-hundred percent correct, if I understand correctly she was found not guilty by reason of insanity?
JUROR: Right.
ROBERT MADSEN: So it never got to that second phase?
JUROR: Right.
ROBERT MADSEN: And I guess my question would be, as you heard, if you are found not guilty by reason of insanity the trial just stops?
JUROR: Right, stops.
ROBERT MADSEN: You don't get to that second part so obviously she is never eligible for the death penalty.
JUROR: Right.
ROBERT MADSEN: And so I guess the question in using her example is if you were sitting on her jury and you heard that and you determined maybe she has some mental problems but they didn't rise to that level of not knowing right or wrong. In that situation, for you killing of the five kids, if she knows, you know, this is an intentional killing?
JUROR: Right. But that would leave me some doubt if I, you know, so then in that case it would be life without parole, if I had doubt.
ROBERT MADSEN: Can you think of any case that is in your mind that just screams, you know what, the death penalty is absolutely the only appropriate punishment for that type of case?
JUROR: I can't think of any.
ROBERT MADSEN: The great part of about it, is there is no right or wrong answers, it is just what you truly feel. Now, you understand as the Judge told you that death is never required in any case, not in this case, not in any case, not even the worst case you could imagine. You understand that?
JUROR: Yes.
ROBERT MADSEN: And you understand that the taking of another person's life, that is what we call an individual moral judgment. Have you ever heard that before?
JUROR: No.
ROBERT MADSEN: I guess the best way it has been described to me is you have made a decision on what your faith is. And someone else might have made a different decision or a different individual moral judgment about what their faith is, what is appropriate for them. And you would expect them to respect your decision. Correct?
JUROR: Yes.
ROBERT MADSEN: And you would respect their decision because it is their right to make that individual moral judgment. And when you come to the decision of life or death, that is an individual moral judgment that each Juror has to make themselves. You understand that?
JUROR: Yes.
ROBERT MADSEN: And the law says that if a Juror comes to that individual moral judgment themselves, something they truly believe, they can't give that up just to kind of go along with the majority. Do you understand that?
JUROR: Correct, yes.
ROBERT MADSEN: And when jurors talk about the case, certainly there should be civility but if it gets to a point where someone is browbeat or bullied out of that individual moral judgment you understand that that is wrong. That is against the law?
JUROR: Yes.
ROBERT MADSEN: And if you saw that back in the jury room where someone was bullying someone would you say something to them?
JUROR: Yes.
ROBERT MADSEN: And you understand that the law allows you, that is you see that, to say, to write a note and say, Judge, it has gone way past civil discourse here. We think you need to kind of step in and help with the civility. Would you do that if you saw that?
JUROR: Yes.
ROBERT MADSEN: Judge, subject to the Court's previous ruling no more questions.
THE COURT: Subject to. Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Ms. Allison, my name is Shawn Graham, I am one of the prosecutors for the State. Thank you for being with us this afternoon and answering my questions. I wanted to see if I can delve into a couple of things and try to clarify what you, my understanding of what you said.
JUROR: Okay.
SHAWN GRAHAM: So with the intentional killing of five children, you have already determined that that is guilty and you are now in the penalty phase. That is the situation, okay.
JUROR: Okay.
SHAWN GRAHAM: Do you want to hear anything more or have you already automatically decided what the punishment should be?
JUROR: We are at the final stage and we have already heard everything, all of the evidence?
SHAWN GRAHAM: You have heard evidence, in this case the Defendant has plead not guilty by reason of insanity. Assuming that you have heard evidence on that topic and you and other jurors had decided beyond a reasonable doubt that he was guilty or guilty but mentally ill, only then would we got to the punishment part.
JUROR: Okay.
SHAWN GRAHAM: That is the situation we are now in. So you would have already determined as part of the jury that he was guilty or guilty but mentally ill. Okay.
JUROR: Okay.
SHAWN GRAHAM: At that point would you automatically not want to listen to anything else and automatically know what the punishment would be?
JUROR: If it was the death penalty we are going for?
SHAWN GRAHAM: I am sorry, Ma'am?
JUROR: We are talking about the death penalty?
SHAWN GRAHAM: At that phase you would consider life without parole or death penalty, you have those two options.
JUROR: If all the stuff was brought before me and we have heard all the evidence and everybody has decided that he is guilty.
SHAWN GRAHAM: You have heard the evidence about guilt.
JUROR: Guilt.
SHAWN GRAHAM: But you have not heard anything else. Would you want to hear anything else or would you automatically know what your sentence was going to be?
JUROR: I would want to hear everything that I could possibly could hear. If it was more information I would want more information.
SHAWN GRAHAM: If information was presented on a particular, so that is what the aggravating and mitigation is. And you are saying that you would want to hear all of that before you would make a decision?
JUROR: Make a final decision, yes.
SHAWN GRAHAM: Okay. If evidence of mental illness was presented in the first phase, not guilty by reason of insanity, I thought I heard you say that you would automatically vote for life. Is that true?
JUROR: If it was true mental illness, if I, after listening to all the evidence, I thought, because people can just say that they did it by reason of insanity and the evidence doesn't prove that. I am telling you, if it was really truly he had a mental condition and he did not know what he was doing at the time, did not do this on purpose, was not aware of his actions, then I would give him life. He was aware of his actions and we found, and he did this and this was something that, I would go for the death penalty.
SHAWN GRAHAM: Let me back up to the guilt, let me go back to the first section, guilty, not guilty by reason of insanity, guilty but mentally ill. The definition of not guilty by reason of insanity means that the Defendant was unable, because of a mental disease or defect to appreciate the moral or legal wrongfulness of his actions.
JUROR: Okay.
SHAWN GRAHAM: So if you found, if you and the other jurors saw that and found him not guilty by reason of insanity then you would not make it to the second, there wouldn't be a punishment phase. The trial would stop. Do you understand that?
JUROR: Okay. So if he was guilty by reason of insanity that would be it, you wouldn't go to the punishment.
SHAWN GRAHAM: If he was not guilty by reason of insanity, he found insanity there would not be a punishment phase.
JUROR: Okay, got you. Okay.
SHAWN GRAHAM: Now, if the jury, if you were on the jury and the jury found him guilty or guilty but mentally ill then you would go to the punishment phase. So I guess my question to you, I am trying to understand where you are at. Knowing that the Defendant is not guilty by reason of insanity and you will hear testimony to support that offered by the Defense, once you have heard that you are either going to have to find one of those four verdicts, right?
JUROR: Yes.
SHAWN GRAHAM: If you find guilty or guilty but mentally ill, we are in the penalty phase, knowing that you have heard that, have you already decided automatically without needing to hear anything more, what your verdict would be?
JUROR: If he was mentally ill, if he was proven to mentally ill I would not have to hear anything more.
SHAWN GRAHAM: If it was proven to you that he was mentally ill?
JUROR: Right.
SHAWN GRAHAM: You would not need to hear anything else?
JUROR: No.
SHAWN GRAHAM: You would have already determined that it would be--
JUROR: Life.
SHAWN GRAHAM: Life without parole. If you and the other jurors determined that the death penalty was the appropriate punishment, one of the things you would have to do is sign your name to a document to attest to that. If that is what you believed and that is what you and the other jurors, you and the other eleven jurors unanimously, could you sign your name to that verdict?
JUROR: Yes.
SHAWN GRAHAM: Thank you.
THE COURT: Anything further Mr. Madsen?
ROBERT MADSEN: Yes, sir.
THE COURT: Okay, Ma'am, step out real quick and I will talk to the lawyers and will have you back in. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Madsen.
ROBERT MADSEN: Judge, we think that she is impaired. When I asked her about if she gave, she wouldn't give Andrea Yates the death penalty. I am not one-hundred percent sure but I believe that that lady was not guilty by reason of insanity. So you don't even get to that point and that is the only way, I mean she said something about wanting, she vacillated in her answers but in the end it seems even if Mr. Graham, she doesn't want to hear anything else, she is going to have her mind made up. That substantially impairs her legally and she should be excluded.
THE COURT: You want to challenge that, Mr. Graham?
SHAWN GRAHAM: No, Your Honor.
THE COURT: I am on the same page with y'all. She did facilitate, she answered different questions, and I agree with you. I was concerned a little bit about the relationship with her daughter too. Bring her back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Ms. Allison, based upon all of your answers and the questionnaires and whatnot I am going to excuse you from serving on this case. You are not required to report back. Thank you.
JUROR: Thank you.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in number 403. (Whereupon, Juror 403, Linda Smith entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Smith, sit down and spell your name and make certain she can hear you.
JUROR: Linda Smith. S-M-I-T-H.
THE COURT: Ms. Smith, remind you you are under oath. I told you last Monday to not talk about the case with anybody. Have you talked about the case with anybody?
JUROR: Not the details.
THE COURT: You are talking about having to appear in court and come to the selection part?
JUROR: Correct.
THE COURT: Now, has anybody questioned you about the case?
JUROR: No.
THE COURT: Now, you received information about the case from me. I read the indictments Monday. That is information.
JUROR: Right.
THE COURT: The publicity that occurred before you, I told you to minimize with it, lots of information out there, publicity and otherwise. Any information you have received, I don't care when you got it.
JUROR: I have seen headlines, have not read any of the articles.
THE COURT: Even before Monday?
JUROR: Before Monday, yes, I am familiar, yes.
THE COURT: Okay. That is what I want to talk about. Everything you have got because I can't control what you did beforehand.
JUROR: Exactly.
THE COURT: I want to know this. Whatever information you have got in your head, from which ever source, whether it be off the computer, newspaper, television, I don't care, from me. Any information you have received up to this point right now, has that information caused you to form an opinion as to what happened in this case?
JUROR: No.
THE COURT: You have not formed an opinion?
JUROR: No.
THE COURT: Now, tell me about your calendar in the upcoming couple of weeks, commencing Monday to the next two or three weeks?
JUROR: Just work, Monday through Friday.
THE COURT: So an inconvenience at work would be--
JUROR: That would be it, yes, work would not be happy but that would be it.
THE COURT: So you are available if you were so selected?
JUROR: I am.
THE COURT: All right. The allegations in this case include murder of five children. That would be the subject matter. The lawyers have represented to the Court that testimony on that subject matter is going to be difficult, unpleasant, graphic, harsh, are some of the terms the lawyers told me. I don't think they are exaggerating. I think they called it like it is going to be. It is going to be unpleasant. Would that subject matter create an issue for you to evaluating and considering that you could not sit and act fairly and impartially for this trial on both sides?
JUROR: I don't believe it would.
THE COURT: You think you could receive and consider?
JUROR: Yes.
THE COURT: And still be fair to the State and the Defense?
JUROR: Yes.
THE COURT: All right. I gave you a witness list, do you know anybody on it?
JUROR: No.
THE COURT: I gave you a preliminary instruction on the aspects of the law, two phase trial, Capital case, guilt or innocence. The guilt is proven by the State, if so go to phase two. Self-evaluating, can you find yourself as a typical Juror based upon my summary of the three types of jurors?
JUROR: Yes.
THE COURT: What type are you?
JUROR: Juror three.
THE COURT: I wrote that, I know what I meant. What do you think that means?
JUROR: It means you have to take all the evidence into account, you can't, you can't have any preformed in your mind. It has to be proven to you.
THE COURT: Okay. And so that is how you classify yourself?
JUROR: Right. If you tell me I did this because of this, prove it to me, show me why you did it that way.
THE COURT: So you want to hear everything, good and bad?
JUROR: I want to hear everything, good and bad.
THE COURT: Okay. You haven't made up your mind yet?
JUROR: No.
THE COURT: Haven't formed an opinion?
JUROR: No.
THE COURT: Now, in this case the, I am going to go back to guilt or innocence. That phase one, it stays right there, they have called the case, published the indictments, this is what we are going to try to convince you beyond a reasonable doubt that Mr. Jones did. Mr. Jones sitting right there is presumed innocent at this moment and all the way through the trial until the State proves its case.
JUROR: Right.
THE COURT: He is presumed innocent. The State has got to prove their case by calling witnesses, presenting evidence. The jury will consider that. Additionally, people accused like Mr. Jones are afforded certain defenses. I am going to read all of them, what I am going to tell you, during the trial, since I haven't heard all the testimony I am not sure which of these defenses could come into play. At least one will, perhaps more. All right.
JUROR: Okay.
THE COURT: Potential defenses are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress or alibi. Having not heard the evidence I am not certain what I am going to instruct you on. If the testimony comes in and it was appropriate for me to instruct you on one of those particular defenses I will. Can you give meaningful consideration to the evidence and testimony offered by the State and its proof of this case beyond a reasonable doubt to the murder as well as consider any testimony, evidence which may support one of those defenses but apply consistent with my instructions on the State's burden as well as the Defense in those definitions?
JUROR: Yes.
THE COURT: You can do that?
JUROR: Yes.
THE COURT: And be fair to the State and the Defense?
JUROR: Yes.
THE COURT: Now, Mr. Jones has offered a plea of not guilty by reason of insanity. By that plea that brings in to four potential verdict forms right now. Guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty all together. Of those four potential verdict forms I will instruct the jury on how to consider the aspects of those verdicts. Can you give meaningful consideration to all the testimony and evidence, in considering my instructions consistent with that and reach a finding of any one of those particular verdicts.
JUROR: Yes.
THE COURT: Can you find, assuming they were supported, could you make a finding to each one of those?
JUROR: Yes. If the evidence supported it.
THE COURT: There would only be one verdict but can you consider all of those?
JUROR: Yes.
THE COURT: If the case is found not guilty, not guilty by reason of insanity the case ends, it stops right there. If the State meets the burden of proving the murder beyond a reasonable doubt then phase two starts, the punishment phase. In phase two the State has got to prove an aggravating factor. I am going to name five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder and multiple murders. The State as got to prove one of those aggravating factors beyond a reasonable doubt in order to ask a jury to impose a sentence of death. Do you understand that?
JUROR: I do.
THE COURT: And they have got to prove one of those beyond a reasonable doubt to do so. Now, in the sentencing phase, death is not automatic. It is one of two. Life or death are the two choices, nothing in the middle, no other options. During that phase the State is trying to prove the aggravating factor beyond a reasonable doubt. The jury also heard from the Defense, mitigating evidence, and mitigating factors. I am going to read to you several statutory mitigators and come back and ask you another question.
JUROR: Okay.
THE COURT: Potential statutory evidence could be, the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder, 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 and/or the Defendant had mental retardation at the time of the crime. Those are statutory mitigators. Additionally jurors are allowed to consider any mitigating factors which would be reasons they would assign a life sentence such as the personal history of Mr. Jones, he had a tough childhood. Anything in his past can be a mitigating factor. Can you give meaningful consideration to the testimony regarding aggravating factors the State must prove beyond a reasonable doubt and consider meaningful any testimony and evidence and consider the mitigating factors consistent with my instructions in reaching a decision on which of the two punishments to give?
JUROR: Yes.
THE COURT: You can do that and be fair to the State and the Defendant?
JUROR: Yes.
THE COURT: Do you have any religious, moral or personal belief which would prevent you from finding a sentence of the death penalty?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief that would prevent you from imposing the sentence of life without parole?
JUROR: No.
THE COURT: Okay.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Ms. Smith.
JUROR: Hi.
BOYD YOUNG: As the Judge told you, now is our chance to have just a brief conversation about your opinions and your thoughts, there are no right or wrong answers. Okay?
JUROR: Okay.
BOYD YOUNG: Are you with me on that?
JUROR: Yes.
BOYD YOUNG: If I confuse you in any way just say I don't understand, can you repeat that. All right.
JUROR: Sure.
BOYD YOUNG: And if I misstate something and I say, it sounds like to me you are saying this, you just tell me, no, you got me wrong, that is not me.
JUROR: Okay.
BOYD YOUNG: Fair enough.
JUROR: Fair enough.
BOYD YOUNG: All right. I noticed that you stood up on Monday when we were over and the Judge as asking anybody if you heard anything about the case. And you told the Judge you had read the headlines. Is there anything else you remember about what you had seen or heard or read?
JUROR: I know from the news reports what is alleged to have happened. I know what or the alleged circumstances around when he was arrested. But, again, those are news reports. You can't, you can't trust everything you read or see in the media. So those are just news reports.
BOYD YOUNG: You just need to tell me, did you form any impression about Tim from those news reports?
JUROR: It is hard to comprehend how someone could do what he has alleged to have done. But, again, I would like to keep the open mind of, explain it to me.
BOYD YOUNG: Okay.
JUROR: Explain it to me. It is not my place to say, you know, this is that just because I read something in the newspaper.
BOYD YOUNG: Right. You need to see it here in court?
JUROR: Right.
BOYD YOUNG: Thank you. And the Judge would, talked about the five allegations of murder and then the Judge has told you that Tim has plead not guilty by reason of inanity?
JUROR: Right.
BOYD YOUNG: And not guilty by reason of insanity in South Carolina means that he did the killings, he said I did the actions but because of a mental disease or defect he was not able to understand the difference between legal or moral right from wrong. Do you understand what that means?
JUROR: I do.
BOYD YOUNG: Okay. Some people say that for them, understanding that the case is over, if that is what the jury found, not guilty, not guilty by reason of insanity the case is over. Some people say for me, that is just some excuse, that is a copout. It is not something that is really on the table for me in the case involving charges like this. You know people like that. And I just got to ask you, where do you come from on that?
JUROR: I believe if he is truly mentally ill then there needs to be treatment. If it can be proven, it happens, it happens, there is mental illness in this Country and it happens. And, you know, there needs to be treatment.
BOYD YOUNG: So it sounds to me what you are telling me is that is a verdict for you that is on the table?
JUROR: It is on the table if the evidence is there, yes.
BOYD YOUNG: Okay. And the Judge is going to tell you that the burden is on the Defense to prove more likely than not insanity. And if the jury finds that then the case is over. Okay.
JUROR: Right.
BOYD YOUNG: You okay with that?
JUROR: Yes.
BOYD YOUNG: But if the jury hears evidence about insanity and they say, no, that is not the case, we find beyond a reasonable doubt that he did know the difference between right and wrong. And that it wasn't an accident, it was a meant to do it, malicious murder of multiple children. Then we end up in the penalty phase. Are you with me on that?
JUROR: I am.
BOYD YOUNG: And that is where the State proves aggravating circumstances beyond a reasonable doubt. Like I said, multiple children killed, are you with me on that?
JUROR: I am.
BOYD YOUNG: And then the jury has these options. Life without parole or the death penalty. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Some people say in that type of case where they knew what they were doing, chose to kill, maliciously kill innocent children. For me the only appropriate punishment is death, I don't need anything else, that is where I start and end just based on the nature of the victims. Can you tell me what you think about that?
JUROR: I am not that set in stone.
BOYD YOUNG: Okay.
JUROR: Now, again, I have to hear the evidence.
BOYD YOUNG: Can you tell me anything about somebody who was in that situation that you could, say, you know what, maybe life is the appropriate punishment?
JUROR: I don't quite understand the question.
BOYD YOUNG: Thank you very much, it wasn't well worded. The Judge has talked to you about mitigating circumstances that would be offered as a reason for a Juror to vote for a life penalty. Can you think of anything about somebody in that type of case that would make you think that maybe life is the appropriate punishment?
JUROR: If there were a circumstance, there are times when people, not so much insanity but lose themselves consciously for moments and things happen. And then when the consciousness comes back they realize, it happens. Again, I don't know that that is straight marching off to the death penalty.
BOYD YOUNG: Okay.
JUROR: I understand, you know, things like that do happen, it is not that black and white.
BOYD YOUNG: Then it didn't rise to the level they didn't know the difference between legal and moral right from wrong but they still had some issues and it sounds like for you that might be mitigating?
JUROR: Correct.
BOYD YOUNG: And that might move you towards a life penalty?
JUROR: It is possible.
BOYD YOUNG: And I didn't ask this but you, and you said, when I asked you about whether or not you thought the death penalty was the only appropriate punishment you said, well, it is not set in stone. Do I take that to mean that you sort of start at death, probably the appropriate punishment and then maybe you could be convinced that life is the appropriate punishment or are you just sort of--
JUROR: I would start in the middle and go either side based on the evidence.
BOYD YOUNG: Thank you very much. That is exactly what we are looking for, Ms. Smith. Can you tell me a little bit about, a little bit more about your sort of general philosophy about the death penalty.
JUROR: I think it would be a good deterrent if it were handled more efficiently. I think that our justice system at this point is, it is just, it is not doing what it was intended to do when it was enacted, in my opinion. Because I believe it was enacted to be a deterrent for heinous crimes like this but the fact that the sentence itself can take 20 to 30 years to be carried out, people don't take it as seriously as I think they used to.
BOYD YOUNG: Okay. Do I understand you to say if you thought you gave somebody the death penalty that that sentence might not be carried out?
JUROR: No.
BOYD YOUNG: Okay. And the Judge is going to tell you, as a Juror you have to understand that if you give death he is going to be executed?
JUROR: Right.
BOYD YOUNG: And if you give life he is going to die in prison?
JUROR: Right.
BOYD YOUNG: Any question about either one of those?
JUROR: No.
BOYD YOUNG: Do you think that the decision and the decision about that jurors are asked about, to end somebody's life, do you think it is appropriate to take their whole life into consideration when you are asked to decide whether or not to end it.
JUROR: Yes, I would think so.
BOYD YOUNG: So it sounds to me that for you the background, how he was raised, who his family is, what his walk in life is, that stuff might be important to you?
JUROR: Yes.
BOYD YOUNG: And you would be open to hearing all of that?
JUROR: Yes.
BOYD YOUNG: All right. At the end of the day this decision about life or death is what is called an individual moral judgment. Do you understand that?
JUROR: Yes.
BOYD YOUNG: There is no right or wrong answer. If you had this many aggravators the appropriate thing is death. If you have this many mitigators the appropriate thing is life. That is not how it works. Okay.
JUROR: Right.
BOYD YOUNG: It is up to each individual Juror to decide for yourself what the appropriate penalty is based on all of the evidence. It has been described to me like choosing what faith is appropriate for yourself. You have made your personal moral decisions about that. Is that right?
JUROR: Right.
BOYD YOUNG: And you recognize that other people have made different moral decisions for themselves about something like that?
JUROR: Right.
BOYD YOUNG: You recognize that you respect their right to make their decision when it comes to that type of individual moral judgment?
JUROR: Yes.
BOYD YOUNG: And you expect them to respect your right to make your own decision when it comes to that type of moral judgment?
JUROR: Correct.
BOYD YOUNG: And if you saw something being belittled or bullied or harassed into give up what they arrived at as their individual moral judgment would you stop it?
JUROR: I would try to, yes.
BOYD YOUNG: Would you say, we are all entitled to our own opinion, that is their opinion, that is perfectly fine?
JUROR: Yes. If their, there is no need for bullying. There is a difference between bullying and persuading.
BOYD YOUNG: Right. And the law is is that a Juror can decide that the life penalty is appropriate for any reason, just some mitigating factor offered by the Defense. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: And they can give any one of those the value of life or no reason at all. They can say, I can't put into words but for me it is right and that is what I want to do. Can you respect a Juror to say, I can't tell you why but it is right for me?
JUROR: Yes.
BOYD YOUNG: If you saw somebody being bullied or harassed or belittled about what they had arrived at as their individual moral judgment would you, and you tried to stop it and it kept going could you send the Judge a note saying that should stop?
JUROR: Yes.
BOYD YOUNG: Do you know any of the other jurors who came to court with you on Monday?
JUROR: No, I do not.
BOYD YOUNG: Okay.
BOYD YOUNG: Based on the Court's limitations I will stop there. Thank you.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Ms. Smith.
JUROR: Yes.
SUZANNE MAYES: My name is Suzanne Mayes, I am one of the Prosecuting Attorney's in this case and with the Solicitor's office, we represent the State in this case. So just a couple of questions for you to follow-up. One of the things that Defense Counsel was asking you about is whether you were open to hearing evidence of a mental health defense such as not guilty by reason of insanity. And you answered that you were?
JUROR: Yes.
SUZANNE MAYES: And that you would listen carefully to any evidence offered in that regard?
JUROR: I would.
SUZANNE MAYES: And by the same token I want to ask you, if you heard by testimony or evidence that countered that testimony or evidence of, from, that was offered by the State would you also consider that in reaching a verdict?
JUROR: Yes, I would.
SUZANNE MAYES: If you have heard or gotten to the point where you are now in the second phase of the trial. Of course we are looking ahead and all of this is, you know, just from the standpoint of what would happen if there were to be a second phase of the trial but in a potential sentencing phase, you would hear evidence offered by the State as to aggravating circumstances. It would also be potential evidence offered by the Defense regarding mitigating factors, could be anything as the Judge told you. Not just the statutory factors but even additional factors, anything that they thought would be important in consideration. Would you listen to each of those factors in reaching a decision on punishment?
JUROR: Yes.
SUZANNE MAYES: And if after taking all evidence into consideration you decided that life without parole was the appropriate punishment and that means he never gets out of prison, is the life without parole a potential decision that you could make in reaching punishment?
JUROR: It is.
SUZANNE MAYES: And then the other option would be the death penalty. If the death penalty is something that you have thought much about before you came into the courtroom last week?
JUROR: Not really, no. But I am not opposed to, if that is appropriate then that is the sentence.
SUZANNE MAYES: Okay. And if ultimately the twelve jurors were to reach a decision that, unanimously, that the death penalty is appropriate can you find yourself being one of those twelve jurors to vote for the death penalty if after consideration of all the evidence you found appropriate?
JUROR: Yes.
SUZANNE MAYES: With that potential verdict each Juror would have to then acknowledge the death sentence with a signature on that form. Could you see, after considering all the factors in reaching that verdict that you could actually not just vote for it but sign your name to that sentence?
JUROR: Yes.
SUZANNE MAYES: Thank you, Ms. Smith, nothing further.
THE COURT: Anything from, are you good?
BOYD YOUNG: Yes, sir.
THE COURT: You want to be heard?
SUZANNE MAYES: No, sir.
THE COURT: Ms. Smith, the Court now, after hearing everything in your answers to the questionnaire and hearing you under oath I find you qualified to be a Juror in this case. What that means is you must pay attention to the website yet again. You are no longer on a panel, you are on qualified jurors. There would be instructions, please check the website again tomorrow or please report to the Lexington Count Court House at some date and time. Follow those instructions. Additionally, you are under oath to not talk about the case, discuss the case, have the case discussed in and around you, don't be influenced. Don't want any information coming to you which could impact your decision. I want your decision to be impacted by only testimony and evidence here in the courtroom, whether it is under the supervision of the Court or the court record and it is under oath. I don't want something outside the courtroom to cause you to think anything about this case, good or bad. Can you live up to that oath?
JUROR: Yes.
THE COURT: I will see you when we see you next.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We have got two panels coming in tomorrow, nine and twelve. We will resume in the morning. See y'all then, 9:00 o'clock. (Whereupon, the case will resume the next morning at 9:00 a.m.)