1.Jury Selection
1,833 linesMay 9, 2019
THE COURT: We will get started with what we have got. We are missing 143. Let's bring them in. (Whereupon, Juror 200, Kimberly Hughes; 357, Christopher Rocker; 305, Joseph Neeley; 461, Susan Watson; 34, Timothy Belay; 32, Todd Bedenbaugh; 86, Rogers Chambers entered the courtroom.)
THE COURT: Folks, I am going to give y'all a layout of what to expect. I am going to read you a statement of criminal procedure, kind of as a backdrop to some of the questions you will be asked in a few minutes. The cameras that are in here, they are off. You will be placed under oath through your answers and whatnot. The majority of the questions are by personal feelings and opinions, there are no wrong answers, just need candid answers. Okay. You are not going to be tricked up, I just need to know personal opinions and feelings. The lawyers will follow-up with some questions. To that end too, so you can't give a wrong answer, just need candid and honest answers. Once we start we will put you back in the jury room, each Juror we do just about the same way. My first question is, have you talked to anybody about the case. That is going to be my first question so don't be, I am going fast, some jurors are taking like I heard they were talking about the case and I am confronting them but I ask every Juror the same question upfront. That is going to be the first question so it is not you, it is everybody. Okay. All right, Madam Clerk, place them under oath.
(Whereupon, the jury panel was sworn at 9:10 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 in this trial. Mr. Jones is charged with five counts of murder. And in South Carolina murder is defined as the killing of any person with malice aforethought. Malice is defined as a person with a wicked or depraved heart, intent on wrongdoing, hatred, ill-will or hostility. The definition of murder excludes any just cause or excuse for the killing. When the State alleges the offense 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 and every element of the crimes which he is charged with. The State must prove each and every element of the crime charged by a standard of proof called beyond a reasonable doubt. In most criminal cases Judges determine the punishment upon a conviction.
But in a Capital case the jury determines the punishment. In a Capital case the trial is divided into two phases potentially. The guilt or innocence phase and then if necessary the punishment phase. In the first phase of the case the State must prove the Defendant's guilt of murder beyond a reasonable doubt. If a jury finds an accused guilty of murder then the trial proceeds to the second phase. In the second phase, if the State proves an aggravating circumstance beyond a reasonable doubt the jury then 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 statutory aggravating factor 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 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 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, whether it be defined as aggravating evidence of an aggravating factor, evidence of mitigation which would be any reason to vote for a sentence of life without parole, evidence of any defenses, evidence of any affirmative defenses such as accident, guilty but mentally ill and not guilty by reason of insanity. So until the testimony and evidence is presented I am not able to tell you as to the exact instruction of law which I will give. But when you come back into the courtroom individually I will ask you the question, can you accept an oath to meaningful consider all the testimony and evidence, apply the law as I instruct it and consider all the testimony and evidence consistent with my instructions. That will be the question posed to you in different fashion, that is the general question. Retire to the jury room, do not discuss the case. Also I will ask you about your schedule and any conflicts may have with that. See you back in here in a few minutes and will call you back one at a time. (Whereupon, the jury panel was excused from the courtroom.)
THE COURT: Let's bring in 200. (Whereupon, Juror 200, Kimberly Hughes entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Hughes, I remind you you are still under oath. As promised, have you talked about the case with anybody?
JUROR: No, sir. I talked about the jury schedule with my boss.
THE COURT: That is fair enough. Were there any other inquires made of you?
JUROR: They asked and it was pretty obvious what case it was but I told them I couldn't speak about it.
THE COURT: Fair enough. That is following my instructions. There has been a lot of information published before Monday when you came in. As a matter of fact Monday when you came in I published information about the indictments. That is information that you received. There has been publicity since Monday, I told you to minimize. There has been publicity before Monday, whatever you have heard from where ever it was, whenever it was including my comments. Has any of that information you have received, heard or considered caused you to already form an opinion as to what happened in this case?
JUROR: Kind of I want to say yes just because of the publicity back when I first heard about it.
THE COURT: Remember this is opinion and personal belief so you are not going to give me a wrong answer.
JUROR: I got you. Yes, I want to be honest about it. I would like to think that I am the kind of person that can take into consideration all of the evidence. So I feel like I have kind of made up my mind.
THE COURT: What do you think happened.
JUROR: It is just the kids, kind of soft heart and it is just the murder and the amount of children.
THE COURT: Do you remember how many children it was?
JUROR: Five.
THE COURT: That is correct. Now, you already have an opinion as to his guilt or innocence?
JUROR: I do.
THE COURT: Do you think he is guilty?
JUROR: I do.
THE COURT: I didn't mean to suggest the answer to you.
JUROR: No, no.
THE COURT: Now, if you have done that, formed an opinion prior to coming in, that creates an issue and I will ask you a couple of more questions. The subject matter of the case involving the death of children will also be presented and it is very difficult testimony I am told, I have not heard it but troubling, graphic. Would that type of testimony be difficult for you to consider also?
JUROR: Difficult in hard to perceive and see?
THE COURT: Yes.
JUROR: Yes, sir.
THE COURT: Would that affect your ability to be fair and impartial in considering that factor also?
JUROR: I am not sure if I can do that, sir.
THE COURT: Now, I am going to excuse you. You are already preforming the opinion and I can't prevent that or tell you not to do that. It is something that happens so I am going to excuse you in this trial. I am not going to put you in that position saying, can you set that aside and then consider everything and redecide. That is hard to do.
JUROR: Yes, sir.
THE COURT: You are excused. Thank you. (Whereupon, the Juror was excused from the courtroom.)
RICK HUBBARD: Your Honor, when we have somebody who has an opinion may we ask you to inquire if they think they would be capable of setting that aside. I think you have got discretion no matter what but just so it is real clear that they could, because a lot of people I think could have an opinion but if they can set it aside and hear, I don't know that she could based on what you got from her. But, anyway, Your Honor, I just ask that.
THE COURT: All right. Let's bring in 357. (Whereupon, Juror Christopher Rocker entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Mr. Rocker?
JUROR: Yes, sir.
THE COURT: I want you to say and spell your name so Ms. Holston can determine if the microphone is working appropriately for you.
JUROR: Chris Rocker. Last name, R-O-C-K-E-R.
THE COURT: Mr. Rocker, I ask for you and all the other jurors, people discuss the case with you after Monday. Has anyone tried to attempt to discuss the case with you since last Monday?
JUROR: Well, my employer knows I have been checking, continue to checking the website and all of that. And in the context of our staff meeting someone asked said, hey, is it the Jones' case. So I did my best to just kind of, not comment and move the conversation forward. Also, of course, I mentioned to my wife of this as well. And but as far as discussing details in the case I haven't done.
THE COURT: That sounds like appropriate responses. Now, you have not talked to anybody other than scheduling?
JUROR: Right.
THE COURT: Now, there has been publicity in this case, lots of it, several years ago, several months ago, over the last two weeks. In fact, during the preliminary qualification of the jury on Monday I read five indictments of the allegations the State has made against Mr. Jones. That is yet, again, information that you have received. Has any of the information you received from where ever it came from, when ever you received it, it don't matter, I want to know if any of that information all collectively, has that caused you to form an opinion as to what you believe happened in this case?
JUROR: No, it has not.
THE COURT: Now, I ask you about your schedule, you got a personal schedule, work schedule, home obligations. Do you have anything that, other than inconvenience, at work, at home, do you have anything, prepaid vacation, upcoming medical procedure, anything like that scheduled starting Monday through the end of May or June?
JUROR: Next Friday which would be the 17th I do have a retreat scheduled. I am a student pastor. That afternoon I would need to get final details in order and things like that so we will be leaving later that afternoon to go out of town. As far as until the end of the month, that is the only thing that comes to mind.
THE COURT: Well, interestingly enough another Juror says I am good except for about 12:00 o'clock on that same weekend. So I can, it may be that if either of y'all are selected we can work around and with that schedule. Mid-day, stopping the trial if you were selected and the other Juror I dealt with before, this is basically the same request. So I think between the two of you we can probably work around that if either of you are put on the jury once it is selected. The subject matter in this case involves the death of five children. The subject matter has been described to me, I have not heard the testimony, I have seen some preliminary things but not very much. The testimony, subject matter is very difficult, it is graphic testimony, graphic photographs, it has been described as tough, very difficult, those types of words. That subject matter, can you receive subject matter of that nature and still be fair and impartial or is it going to affect you and create an issue for you not being able to fairly evaluate the evidence and give both sides a fair trial?
JUROR: I feel like I would certainly be able to receive that information. I would be lying if I said it wouldn't affect me at all emotionally being as the victims in the case are children. But I honestly feel like I would be able to receive that information and make an informed decision.
THE COURT: Very well. Now, you understand that right now the case, I gave you some preliminary instructions a moment ago. Did you understand those?
JUROR: Yes, sir.
THE COURT: Now, thus a little bit of criminal procedure and a little bit of criminal law, aspects of the Capital case having two phases, guilt or innocence phase and the punishment phase. Did you understand those?
JUROR: Yes, sir. The first time I have heard it but I think I have got it.
THE COURT: And a lot of people have not heard that and so that is why I go through a little education up front to give you an idea of what to expect. Now, understanding that, if the State meets its burden of proving guilt beyond a reasonable doubt in phase one the case then goes to the punishment phase. So considering just those basic facts, if we got to phase two, we are in the punishment phase the State generally presents evidence of aggravating factors and the Defense presents mitigating factors. Understanding that is what is coming at you, just knowing those basic facts, the guilt is presumed and the types of potential jurors that I outlined on the little sheet. Did you review that sheet?
JUROR: Yes, sir.
THE COURT: Can you identify yourself as one of those three types of jurors?
JUROR: Yes, sir. I would be type three.
THE COURT: And tell me, I wrote this and I know what I meant to say. So you read it, describe for me what you believe a type three Juror would be?
JUROR: My understanding was type three is if a person is found guilty of a murder charge the two sentencing options would be life without parole or the death penalty based on evidence and all of those aggravating factors that you mentioned. That was my understanding.
THE COURT: Sounds like a fair summary of what was intending to convey. All right. You identified yourself as a type three which means a person who can consider the case, wants to hear everything, good and bad.
JUROR: Yes, sir.
THE COURT: Okay. Now, I am going to retreat back to phase one, the guilt or innocence phase. I am going to tell you a few things that is about the case and ask you can you receive and consider these instructions. Phase one, the State has got the burden of proving the murder beyond a reasonable doubt. They call their witnesses first. They present on that first, they have got that burden of proving that case. During that phase of the case the Defense presents defenses. Some are statutory. I am going to read them off and come back and ask you and I will you now, all of them won't be instruction but the ones that are supported by the evidence presented could be instruction, so you just kind of understand what they are. Okay. So if I hear evidence supporting a particular defense I instruct on that after hearing the testimony. I don't know all the testimony coming in right now to say, I will or won't instruct on a particular aspect. Does that make sense?
JUROR: Yes.
THE COURT: Potential defenses are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, alibi and coercion, I am sorry, duress. Those are potential defenses that can be considered by jury's if the evidence can support it. So, can you act fairly and impartially, be a fair Juror and meaningful consider my instructions on reasonable doubt and that responsibility of the State as well as consider any defenses, evidence testimony which the jury receives, can you give meaningful consideration to all of those aspects from the testimony and evidence and my instructions and be fair to both the State and the Defense?
JUROR: I believe I can, yes sir.
THE COURT: Now, in this case particular Mr. Jones has claimed, he is presumed innocent sitting right there, as of right now since he has been charged and all the way through the case, until the State proves beyond a reasonable doubt, he is presumed innocent. Okay. Now, he has entered a plea of not guilty by reason of insanity. That, by the virtue of that plea bring potentially verdict considerations for the jury and at the end of phase one could be these four. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Can you consider the instructions of the Court, evidence and testimony presented and give meaningful consideration to each and every one of those particular forms providing my instructions address all four.
JUROR: Yes.
THE COURT: Can you do that being fair to the State and the Defense?
JUROR: I believe I can, yes sir.
THE COURT: If the State fails to meet its burden or the jury makes a finding of not guilty by reason of insanity the case ends, it stops. If the State meets its burden of proving guilt beyond a reasonable doubt the case goes to phase two. During phase two, at that time the State is then tasked with proving an aggravating factor. I am going to name all five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors. The State must prove at least one of those beyond a reasonable doubt to then seek and request a jury to impose the death penalty. If they don't meet that beyond a reasonable doubt they can't ask for the death penalty. All right. In the sentencing phase only two choices, life or death. Nothing else, no other options, no middle ground. The State proves the aggravating factor during that phase of, the second phase. During that the second phase also jurors hear and consider mitigating factors or mitigating evidence for your reasons to decide and find life without parole. I am going to read some statutory mitigators. 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 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 present on, they can present evidence for a jury to consider. They don't have to be proven but they can be presented and the jury can consider any one of them. Also you could consider as mitigating any testimony and evidence that, of Mr. Jones' life. Childhood, whether he came from a broken home or was an abused child, anything, a reason for mitigation factors to assign a life without parole. Can you as a Juror act fairly and impartially, consider the evidence of aggravating factors and the State's burden of proving beyond a reasonable doubt as well as any and all mitigating testimony and evidence which are reasons to assign life. Can you meaningful consider all of that testimony and evidence and my instructions by the Court and give both the State and Mr. Jones a fair and impartial trial in this case?
JUROR: Yes.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from finding a verdict, a sentence of death?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from finding a sentence of life without parole?
JUROR: No.
THE COURT: You know of any reason whatsoever you can't be fair to both sides?
JUROR: No, sir.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good morning, Mr. Rocker.
JUROR: Good morning.
BOYD YOUNG: Did you know any of the other jurors who were called in on Monday, when we were in that big room?
JUROR: I did see a couple of familiar faces.
BOYD YOUNG: And you just don't know their names?
JUROR: I do, would you like for me to say their names?
BOYD YOUNG: Please.
JUROR: I have met a gentleman by the name of Phil Turner once before, I believe he was there. And then also a gentleman by the name of Tommy Cave who attends our church periodically.
BOYD YOUNG: Okay. And don't worry about what you say in here, you can't give a wrong answer and they can't report on what jurors say. You are not getting anybody in trouble or anything like that. All right.
JUROR: Okay.
BOYD YOUNG: My question is, if you were on the jury with one of the people that you knew would you be somebody who says they can have a different opinion than mine or would y'all think that you had to have the same opinion or would they influence on your opinion in any way?
JUROR: I don't think they would influence my opinion.
BOYD YOUNG: Okay. You would be able to make your own opinion and not be influenced by that relationship that you had with those people?
JUROR: Yes, sir.
BOYD YOUNG: That is why I ask the question. You understand that?
JUROR: I understand.
BOYD YOUNG: The Judge talked to you about, you understand that there are five counts of the murder of children that Mr. Jones has alleged to have committed, right?
JUROR: Yes.
BOYD YOUNG: And to those counts of murder he had plead not guilty by reason of insanity. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: And that means that he says, I did the killing, right, by virtue of that plea. But because of a mental disease or defect I was unable to distinguish between legal or moral right from wrong. A little wordy but you understand what I am saying?
JUROR: Yes.
BOYD YOUNG: Okay. Some people would say, for me in this type of case not guilty by reason of insanity is not a verdict that I could consider. That is not in the cards for me and I want to know how you feel about that statement?
JUROR: That verdict would be a difficult one for me to consider, yes, it would be really difficult for me to consider not guilty by reason of insanity. Does that answer your question.
BOYD YOUNG: Maybe. I mean, it is sort of a distant excuse?
JUROR: I don't know if I would word it that way. For me and this is just--
BOYD YOUNG: Everything is just you.
JUROR: Right. This is just my vent. That doesn't change the truth that that person would have committed those crimes.
BOYD YOUNG: Right. And the case would end, the jury's job would be over if they found not guilty by reason of insanity. They wouldn't do any sentencing. Do you understand that?
JUROR: Yes, I do understand that.
BOYD YOUNG: Some people say for me that is not on the table and I just need to know, is that you, did the killing and say, that is not a verdict that I can see myself signing.
RICK HUBBARD: Asked and answered, Your Honor.
THE COURT: I think that has been asked and answered.
BOYD YOUNG: Your Honor, the additional part is, he understands that the case will be over and that there wouldn't be any sentencing by the jury.
THE COURT: I thought he answer that question.
RICK HUBBARD: He did, asked and answered.
BOYD YOUNG: He didn't. He understood that that would happen. I haven't asked--
THE COURT: Isn't that the question, that he didn't verbally answer and Ms. Holston made him answer and he said, yes, he understood that.
BOYD YOUNG: Yes, he understood that the case would be over. My next question is, understanding that the case would be over does that affect your ability to give meaningful consideration to that defense, to see yourself signing that verdict.
THE COURT: I don't believe that was your question but ask your next question and then you can ask that.
BOYD YOUNG: Understanding that the case would be over, does that affect your ability to see yourself voting for not guilty by reason of insanity in a case like this?
JUROR: As a Juror, is that something that the jury would decide, that we have determined that he is, in fact, not guilty by reason of insanity?
BOYD YOUNG: Yes. That would be one of the four verdicts for the jury.
JUROR: Okay. I think I am not understanding the question. So, are you, knowing if he is found guilty by reason of insanity are you asking would--
THE COURT: Go back over the four potential verdicts. I think that would clear it up, he is confused on those two elements.
BOYD YOUNG: Sure. As the Judge explained to you, there is four potential verdicts when somebody pleads not guilty by reason of insanity. There is not guilty, not guilty by reason of insanity which I have explained to you is somebody didn't know the difference between legal or moral right from wrong at the time that they did the killing. You understand that one?
JUROR: Yes, sir.
BOYD YOUNG: They are guilty, just did it with malice, intentional, meant to do it, murder. Right?
JUROR: Yes.
BOYD YOUNG: And then there is guilty but mentally ill which is, had a mental disease or defect and couldn't, knew the difference between right and wrong and couldn't conform his conduct. Okay?
JUROR: Yes.
BOYD YOUNG: So guilty, guilty but mentally ill we would have a penalty trial where the jury would decide sentencing. Okay?
JUROR: Yes, sir.
BOYD YOUNG: Not guilty is not guilty. Everybody knows what that means?
JUROR: Yes.
BOYD YOUNG: What happens then. And then not guilty by reason of insanity, and my understanding is you sort of struggled with not guilty by reason of insanity for somebody who says, who did act, did the killing?
JUROR: I do still, yes sir, if it is not guilty by reason of insanity for me that doesn't change that there are still victims. And I would feel that justification for the crimes is not properly, that is a struggle for me because it doesn't change that there are still victims and I would feel like the, you know, justice would improperly being served in that case.
BOYD YOUNG: Understand where you are at. A lot of people feel that way.
JUROR: So I would struggle with not being able to have any say in sentencing. If there is not sentencing for that that would be difficult for me.
BOYD YOUNG: Okay. Fair enough. Just asking your thoughts and opinions. Thank you for sharing that with us. I am going to move forward a little bit, okay, and let's talk about, if you heard evidence of not guilty by reason of insanity and you said, no, we, all twelve jurors agree, that is not a defense in this case, we have rejected that evidence, we have found that he did know what he was doing, he did know the difference between right and wrong, chose to kill multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: At that point and time the jury would have two options. The life penalty or the death penalty. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And that is where you would have different types of evidence about mitigating circumstances or aggravating circumstances as to which one of those punishments the jurors thought were appropriate. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: Having found a Defendant guilty, guilty, knew what they were doing, knew the difference between right and wrong, murder of multiple children, do you have a leaning towards a life penalty or death penalty as the appropriate punishment?
JUROR: Yes, sir. I would lean towards the death penalty.
BOYD YOUNG: Okay. Is that sort of an eye for a eye, life for a life view for you or can you tell me about that?
JUROR: I don't know that I would describe it in that way.
BOYD YOUNG: Okay.
JUROR: But by considering the number of victims and the age of the victims, for me that is why I would lean towards the death sentence.
BOYD YOUNG: Okay. I understand where you are coming from. The background information in like, how the Defendant grew up or what his childhood was like or his character. Do you understand that is the type of stuff we are talking about as sort of mitigation. Right?
JUROR: Yes.
BOYD YOUNG: Could any of that ever matter enough to you to move you off of that leaning towards to death to think that maybe life is appropriate.
JUROR: I would have to hear that and I guess the way I would answer that is I would have to be strongly convinced to come off, again, what my natural lean would be.
BOYD YOUNG: Okay. It would have to be pretty, it wouldn't have to be like a bad childhood. It would have to be like a horrific childhood? Is that what I hear you saying?
JUROR: I would have to be convinced.
BOYD YOUNG: Okay.
JUROR: To consider life as opposed to the death sentence.
BOYD YOUNG: Okay. Mr. Rocker, at the end of the day, this ultimate decision, life penalty or death penalty is what is called individual moral judgment. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: And I know you have heard that term a lot in doing your work and in your church. We make moral decisions all the time?
JUROR: Yes.
BOYD YOUNG: And there is no right or wrong answer. There is no, if A, B, C, there is no like, if five children the appropriate response is death, it is up to each Juror, there is no automatic death sentence. I understand you have a leaning but the law is that there is no such thing as an automatic death sentence. Do you understand that?
JUROR: I do understand that.
BOYD YOUNG: Okay. Individual moral judgments are sort of like you choosing what faith is right for you. You have made your personal moral decisions about that. Is that right?
JUROR: Yes, I have.
BOYD YOUNG: You recognize that other people have made different decision for themselves?
JUROR: Right.
BOYD YOUNG: You respect their right to make their own decision even if it is different from yours?
JUROR: Yes.
BOYD YOUNG: You expect them to respect your right to make your own moral judgment about something like that?
JUROR: Yes.
BOYD YOUNG: And if you saw somebody being bullied or belittled or harassed into giving up what they had arrived at as their individual moral judgment would you stop it?
JUROR: Yes, I would hope I would.
BOYD YOUNG: Say that is not right, they are entitled, that is a perfectly legitimate view?
JUROR: Correct.
BOYD YOUNG: And if it didn't stop could you send the Judge a note saying things, peoples opinions aren't being respected?
JUROR: Are you talking about if that would happen during the course of the jury's deliberation or something?
BOYD YOUNG: Yes, sir.
JUROR: Yes, I would do that.
BOYD YOUNG: based on the Court's limitations I don't have any further questions.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: How are you?
JUROR: I am good.
RICK HUBBARD: I am Rick Hubbard, the Solicitor and I have got some Deputy Solicitors with me and we represent the State in this case and I have got a few questions too. I understand you got to Trinity Baptist?
JUROR: Yes, sir.
RICK HUBBARD: And you are a Pastor there, a Youth Pastor?
JUROR: Student Pastor.
RICK HUBBARD: Student Pastor. Okay. I just want to flesh out a few things if I can with you. So I understand, this is our chance to get to know you and your, I guess your first opportunity to come into a courtroom and serve as a Juror?
JUROR: In this setting it is. I was called to jury duty when I lived in Georgia.
RICK HUBBARD: Let me ask you this. Do you agree with the concept where our Government in place to make laws to both protect, both those accused and those who are victims?
JUROR: Yes.
RICK HUBBARD: Do you agree with the concept that there are times when people need to be punished but we also have to make extra, take extra pains to make sure we are punishing the right people?
JUROR: Yes.
RICK HUBBARD: That is kind of the bedrock where we are going here. And I am assuming, it goes without question, you are going to respect the authority of the Court speaking on behalf of this system. He is the guardian of the law?
JUROR: Yes.
RICK HUBBARD: And you understand and respect that?
JUROR: Yes, sir.
RICK HUBBARD: When the Judge speaks to you that in this case, this particular case, it is not the usual two verdict forms, guilty, not guilty. There are four potential verdicts just based on what he knows right now, guilty meaning the guy did the crime, knew what he was doing, no excuse. Guilty but mentally ill, he knew what he was doing, knew right from wrong but has a mental illness and couldn't appreciate the, control his abilities to obey the law. It is kind of a hard concept. Three, not guilty by reason of insanity. The guy didn't know right from wrong. And finally, not guilty, he just didn't do it or we failed to prove it. Do you understand those four?
JUROR: Yes, sir.
RICK HUBBARD: The Judge goes through this trial and you are on this jury and he says, these are four possible verdict forms. Can you respect and accept that?
JUROR: Yes.
RICK HUBBARD: Now there was a lot of talk about this verdict form of, potential verdict of not guilty by reason of insanity. Do you understand this is in the first phase. Did the State prove its part and did the Defense put up evidence on whether there is evidence of insanity? Do you understand that?
JUROR: Yes.
RICK HUBBARD: So we each are coming onto what the burden, the State's burden is the heavy one. We have got to prove that he did the crime beyond a reasonable doubt. Do you understand that?
JUROR: Yes.
RICK HUBBARD: Did you know that we have to prove two different aspects of that, not just that he did the deed but he knew that he did the deed. Do you understand that?
JUROR: I do.
RICK HUBBARD: And that is where the whole notion of not guilty by reason of insanity comes into plea. That is a claim that I can only prove one-half of that. Do you understand?
JUROR: Yes.
RICK HUBBARD: He did the deed but he didn't understand. Do you understand?
JUROR: Yes.
RICK HUBBARD: Does that sound, in our, that part of our legal system, is that something that you can accept as a Juror if you were to come in and sit on a jury?
JUROR: The verdict of not guilty--
RICK HUBBARD: No, just taking it one step at a time. Can you accept the concept that I have two aspects, two steps to prove somebody is guilty. They did the deed, killed somebody but they knew what they were doing and it was with malice. Do you understand that?
JUROR: Yes.
RICK HUBBARD: Two steps. What they are raising is not guilty by reason of insanity. They are saying I can only prove one. He did the deed, the killing but I can't prove that mental side. And they are going to put up evidence saying there is evidence on the mental side. Do you understand that?
JUROR: Yes.
RICK HUBBARD: Can you accept that format if you were a Juror?
JUROR: Yes.
RICK HUBBARD: Could you consider all of that evidence?
JUROR: I would be able to consider it, yes.
RICK HUBBARD: I am going to go a step further. The evidence you would actually hear would be from professionals and experts, probably from both sides. Some saying here is why we think he didn't know right from wrong. Other experts saying, wait a minute, maybe he did know or he did know right from wrong. Would you be willing to hear those?
JUROR: I would.
RICK HUBBARD: Now, let's go a step further. If that evidence is presented and you come convinced, maybe he was not in his right mind at the time, he did not know right from wrong. Would you agree with me that you can't punish somebody if they didn't know they did something wrong.
JUROR: If something did something wrong--
RICK HUBBARD: But they didn't know what they did was wrong. They had something going on, they just didn't know it was wrong. Everybody else might have but they didn't. Do you understand you can't punish somebody for that?
BOYD YOUNG: Objection to the form of the question.
THE COURT: Rephrase the question.
RICK HUBBARD: Do you believe you can punish somebody for doing something if they did not believe it was wrong? Let me rephrase it again. Do you believe you can punish somebody if they did not understand that what they did was both against the law or even morally wrong, they just didn't understand that at that time?
JUROR: I do believe I could, not I, but someone could and should be punished in that case.
RICK HUBBARD: Even if they--
JUROR: --even if they didn't understand it.
RICK HUBBARD: Okay. Thank you.
THE COURT: Based upon your answers I am going to excuse you from serving on this case and I thank you for coming and thank you for your patience.
JUROR: I am free to go?
THE COURT: Free to go. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Are we ready on 305?
BOYD YOUNG: Yes, sir. (Whereupon, Juror 305, Joseph Neeley entered the courtroom.)
BOYD YOUNG: What number was missing?
THE COURT: Seven.
EXAMINATION
By The Court:
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: I want you to say and spell your name for Ms. Holston so she can determine if she is hearing you loudly enough.
JUROR: My name is Joseph Neeley, N-E-E-L-E-Y.
THE COURT: Mr. Neeley, you came into court last Monday and listened to my comments and I asked you to take an oath to not talk about the case. Have you talked about the case since that time?
JUROR: No, sir.
THE COURT: Has anybody asked you about the case?
JUROR: No, sir.
THE COURT: No. I read some allegations, the indictments, I read them to y'all, the whole panel. Made accusations of murder by the State against Mr. Jones. He is presumed innocent right now. Do you understand that?
JUROR: Yes, sir.
THE COURT: Have you seen any of the newspaper reports or internet reports talking about this case?
JUROR: I saw it on WIS.
THE COURT: WIS. Now, would you, after seeing anything on the news, hearing anything anywhere and hearing my comments have you formed an opinion as to what happened?
JUROR: No, sir.
THE COURT: What have you got on your calendar starting next Monday for about three weeks.
JUROR: I have got three doctors appointments from the end of May.
THE COURT: Those are scheduled?
JUROR: Yes, sir. I got one May 20th, one May 23rd and May 30th.
THE COURT: Those would all kind of interfere with this. Have those been scheduled for a good while?
JUROR: Yes, sir.
THE COURT: Any objection for me excusing him for medical reasons, he has got three appointments?
RICK HUBBARD: No objection.
THE COURT: Any objection from the Defense?
BOYD YOUNG: No, sir.
THE COURT: I am going to excuse you, you have got conflicts on your calendar. Thank you, sir.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 461. (Whereupon, Juror Susan Watson entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: I remind you you are under oath but nevertheless I want you to say and spell your name for Ms. Holston so she can determine if you are speaking loud enough for her to hear.
JUROR: Susan Watson. S-U-S-A-N, W-A-T-S-O-N.
THE COURT: Ms. Watson, I told you my first question was going to be, have you talked with anybody about the case since last Monday?
JUROR: I haven't really talked to anybody about the case but I do work in outpatient rehabilitation clinic and they watch the news and I ask them to not have the news on.
THE COURT: Okay.
JUROR: But sometimes they like to watch the game shows so it is kind of hard to, I have to kind of ignore what comes on. I do have something I wanted to bring up to you.
THE COURT: What have you got?
(Whereupon, the Court reads a form for the Juror.)
THE COURT: Now, I am not going to go into that. I will hand that back to you and the lawyers may want to ask you. My next question is this, it is kind of on that topic. Let me go back to the media and publicity.
JUROR: Okay.
THE COURT: Regarding any publicity you have heard about the case, no matter when you heard it, whether it was four years ago, four weeks ago, four minutes ago. I read the allegations of the indictments to the entire jury panel and that is information that you received because I directed it to every Juror so that they could say, I don't know anything about this or I understand what this is about. Now the media reports, publicity, social media or public media, not concerned about who. But like you said, news reports are in at work. Any of this information that you have received, has that caused you to form an opinion as to what happened in the case?
JUROR: Mostly just, how many jurors, most of the information that has come on and I am trying not to look at it, it has been about the jury stuff, it is not really about the case. I mean, they have said--
THE COURT: More or less summarizing the allegations?
JUROR: Yes. One of the reports did say about his, it was his children and something about bags in a trunk.
THE COURT: Has that caused you to form an opinion or are you still trying to keep an open mind?
JUROR: It does kind of make you form an opinion.
THE COURT: Let me ask you this. I am going to ask you the next question based upon what you provided to me. The subject matter involving this case is going to involve testimony of explaining, describing the death of five children. That type of subject matter, I have asked the lawyers and the lawyers have told me, they described it as being this. It is going to be graphic, harsh, unpleasant and difficult. Would subject matter described like that make it difficult for you to be fair and impartial where it would affect you emotionally where you could not give both sides a fair trial in your opinion?
JUROR: Yes.
THE COURT: That would be difficult for you?
JUROR: Yes.
THE COURT: And for the record, she provided a note from a physician to that end. And so--
JUROR: I am already being treated, I take medication.
RICK HUBBARD: No problem.
THE COURT: I don't want to publish what is written in the medical report and it is consistent on what I just asked her and her response is what I expected. Ma'am, you are excused. Thank you for coming in.
JUROR: Thank you for understanding.
THE COURT: Good luck to you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring me 34. (Whereupon, Juror Timothy Belay entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: I remind you you are under oath. I want you to say your name and spell it for Ms. Holston so she can determine if you are speaking loud enough for the microphone.
JUROR: Timothy Belay, BRAVO-ECHO-LEMA-ALPHA-YELLOW.
THE COURT: Is it Belay or Belay.
JUROR: I prefer Belay.
THE COURT: Mr. Belay, I told you I was going to ask the question, have you discussed the case with anybody since last Monday?
JUROR: I have not. My coworkers is a diligent news reader so I got some general information like I know your nickname is Bubba.
THE COURT: That's correct.
JUROR: But other than that, no, nothing.
THE COURT: How about that. Do I look like a Bubba or not?
JUROR: I haven't guessed in that.
THE COURT: Anyway, the case received a lot of publicity including some information that the Court has presented, I presented information last Monday about the five allegations in the indictments. And that is language to Mr. Jones on what he is on trial for. Before Monday I didn't have you under oath and did not look at media reports and figure out what was going on or who the Judge was. Now, any information you receive, I don't care where it came from, any information you received up to right now including information I have told you, has any of that information caused you to form an opinion as to what has happened in this case?
JUROR: No, it has not.
THE COURT: Now, I asked you to tell me about your calendar. What have you got on your calendar from Monday, the end of May, early June that would be a huge imposition on your schedule if you were selected and seated as a Juror. What have you got?
JUROR: Thankfully I have a very understanding boss so my calendar would be free if need be.
THE COURT: Okay. And understanding it is an inconvenience and imposition but it is a civic duty and I am glad your boss is understanding. I have had several bosses that maybe not so much. Thanks for your boss. Now, subject matter in this case is going to involve testimony, graphic testimony regarding the deaths of children. The lawyers have described it to me has being harsh, graphic, difficult, unpleasant to very unpleasant. Would testimony described as such, regarding the deaths of children, would that create an issue for you personally or emotionally that you couldn't received testimony of that subject matter and still render a fair and impartial trial for both sides?
JUROR: No, it would not.
THE COURT: So you could consider testimony of that type and still be fair to both sides?
JUROR: Correct.
THE COURT: Now, I gave you a summary, kind of a very thumbnail sketch of procedures, two steps. Step one is phase one, guilt or innocence, that is the determination. The State has got the burden of proving that beyond a reasonable doubt. The State meets that burden you go to phase two. At stage two is the punishment phase. During that phase the State has the additional responsibility of proving an aggravating factor. The jury considers mitigating factors also. Mitigating factors are reasons to give the life penalty. You understand there are one of two choices. I have you a little summary of three types of jurors that are generally described. Can you find yourself or identify yourself. Have you reviewed that sheet?
JUROR: Yes, I have.
THE COURT: Can you identify yourself as one of those three types?
JUROR: I would consider myself a very hard three.
THE COURT: A very hard three. I wrote this so I am going to ask you, what do you mean by hard three?
JUROR: Well, you are asking an individual to sign their name on the life of another individual. And I take that very seriously. So I would put a heavy burden on the State to make sure that if I am to do so and if I am going to put my name on someone's death certificate, that I will be able to continue to live the rest of my life with consciously knowing that I am responsible for that person's life.
THE COURT: I think you have identified and described type three very well. I am going to go back, did you read the witness list?
JUROR: I have.
THE COURT: That is not that all the witnesses will be called, a lot of them will. But both sides have to give potential witnesses. Are you connected to them in any way?
JUROR: No, I am not.
THE COURT: So none of those witnesses create an issue for you?
JUROR: No, sir.
THE COURT: Now, I am going to go back to stage one, phase one, guilt or innocence. During that phase the burden, responsibility is upon the State to prove their case beyond a reasonable doubt. They have got to prove murder, killing of another with malice, hatred. That is what is presented. During that phase also defenses can be presented by the Defense obviously. I am going to read off some statutory defenses then tell you, my instructions will be tailored to what defenses are supported by the evidence. So there are defenses available with evidence testified to, you don't get the instruction on one that is not relevant. The relevance ones will get instructions. Potential defenses are identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, defense of habitation, entrapment, duress and alibi. Those are potential statutory defenses that are allowed by our code books. Can you be a fair and impartial Juror, consider all the testimony, evidence presented, understanding the State has got the burden of proving its case beyond a reasonable doubt, Mr. Jones is presumed innocent, consider any aspects and testimony regarding defenses, consistent with my instructions on how to consider those. Can you do that.
JUROR: I can.
THE COURT: Can you be fair to the State?
JUROR: Yes, sir.
THE COURT: Can you be fair to Mr. Jones?
JUROR: Absolutely.
THE COURT: All right. If, now I am telling you that Mr. Jones has entered a plea, claiming at least one of those defenses and that is not guilty by reason of insanity. That brings into a play a verdict form potentially in this trial that would be as follows. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Can you be a fair and impartial Juror, considering each and every one of those potential verdict forms, while considering my instructions on the definitions and aspects of those potential verdict forms, consider all the testimony and evidence presented as well as understanding the State's burden of proving this case beyond a reasonable doubt?
JUROR: I can.
THE COURT: Can you be fair to the State in doing so?
JUROR: I can.
THE COURT: Can you be fair to Mr. Jones in considering that?
JUROR: I can.
THE COURT: All right. If the State fails to meet its burden of proof or the jury finds a verdict of not guilty by reason of insanity the case ends. If the State meets it burden of proving murder beyond a reasonable doubt the case goes to phase two. During phase two the State is then required to prove its burden of proof, an aggravating factor. I am going to name off five aggravating factors. Murder of a police, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State has got to prove one of those aggravating factors beyond a reasonable doubt in order to be able to request a jury to impose a death sentence. That is their burden. During this portion of the second trial the Defense is allowed to present mitigating evidence and circumstances. I am going to read you a list of statutory mitigating factors. 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 was 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. Other mitigators that the jury can consider anything, any evidence such as Mr. Jones prior life, his early childhood, come from a broken home, any aspect of his life a Juror can consider a mitigating factor for a reason to support a life sentence. Can you, understanding the State has the burden of proving the aggravating factor, also consider any mitigating evidence and circumstances, weigh that evidence consistent with my instructions and be a fair and impartial Juror in this case?
JUROR: I can.
THE COURT: Can you be fair to the State?
JUROR: I can.
THE COURT: As well as the Defense?
JUROR: Absolutely.
THE COURT: Understanding that there are only two choices in the sentencing phase, there is death and life. No other options, no middle ground, one of the two. Do you understand?
JUROR: I understand.
THE COURT: Do you understand the death penalty is not automatic?
JUROR: Absolutely.
THE COURT: Do you have any personal, religious or moral belief which would prevent you from imposing the death sentence?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from imposing a life without parole sentence?
JUROR: No.
THE COURT: Those are my questions.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Mr. Belay.
JUROR: Belay.
ROBERT MADSEN: I am sorry. Good morning.
JUROR: Good morning.
ROBERT MADSEN: How are you?
JUROR: I am fine.
ROBERT MADSEN: My name is Rob Madsen and I am one of Tim's lawyers. The Judge has just kind of went over a little bit with you about being fair and impartial and gave you a little bit of law. I just want to talk with you about your feelings so there is no right or wrong answers. I just need to know kind of what you think. When you came in here, I guess over a week and a half ago to the other Court House did you know any of those other jurors?
JUROR: No, I did not.
ROBERT MADSEN: And as you heard the Judge tell you, Tim has plead not guilty by reason of insanity. And so what that means is that someone says, I did the acts, but because of a mental disease or defect I did not know the difference between legal or moral right or wrong. Do you understand that?
JUROR: I do.
ROBERT MADSEN: And some people would say, hey, in that situation, you know what, that is just not a verdict that I could consider. And my question is, is that you?
JUROR: I am sorry. If the verdict is--
ROBERT MADSEN: Well, okay, it is kind of a long -- on a not guilty by reason of insanity, as I said, someone because of a mental disease or defect doesn't appreciate moral or legal right from wrong. And some jurors sat right there and said, you know what, in that situation where someone admits I did it but because of that mental disease or defect I didn't understand moral or legal right from wrong. I can't consider that. And my question is, are you one of those jurors?
JUROR: Yes, yes. I could consider that as a vital option.
ROBERT MADSEN: And if you heard evidence of that and you felt that that was appropriate that is the verdict that you could render?
JUROR: Correct.
ROBERT MADSEN: Let me ask you or let me change up a little bit and talk with you about, just kind of put you on a jury. And so you are sitting on a jury and you and eleven other jurors have heard evidence say, about a mental illness and you have rejected that. In other words, you say, hey, this guy knew the difference between right and wrong. If you have heard any kind of defenses, self-defense, accident, anything like that, you have rejected it. So we have got someone who knows the difference between right and wrong and they are a guilty murderer of multiple children. You understand that?
JUROR: Correct.
ROBERT MADSEN: My question to you, in that situation what are your feelings of the death penalty in that situation where you have that intentional killing of multiple children?
JUROR: As opposed to the other eleven opinions?
ROBERT MADSEN: Well, just yours. So, what I am trying to say is, without hearing anything else at that point and time, you and the other eleven other jurors have determined this person is guilty beyond a reasonable doubt. No doubt they did the killing, no doubt it was intentional and it is a multiple innocent children. And my question is, what is your opinion as the death penalty as being the appropriate penalty in that situation.
RICK HUBBARD: Objection, Your Honor.
THE COURT: Lengthy question. Go back and rephrase it like we have been doing the others. I was looking something up and didn't pay particular attention to those exact words. I am sorry. Try to rephrase that, Mr. Madsen.
ROBERT MADSEN: You understand at the end of the first phase we are done, we have determined as the jury, all twelve of you have determined guilty, no excuse, no defense, knew the difference between right and wrong. Are you with me?
JUROR: Correct.
ROBERT MADSEN: So my question is without hearing anything else at that point and time what is your opinion as the death penalty being the appropriate punishment for that guilty murderer of multiple children?
JUROR: Well, considering that phase two is inherent with the extenuating circumstances I don't, I would not be able to form an opinion based solely on phase one without going through phase two.
ROBERT MADSEN: Can you tell me your general philosophy of the death penalty or what your feelings are of it?
JUROR: Well, I believe, as I mentioned before, I would be a hard three meaning and I know that this is an imperfect legal system but there have been cases in the U.S. where death penalties have been imposed and subsequently found that the person who was put to death was innocent of the charges that they were found for. So I do not want to be in the case of one of those twelve people that signed off on somebody who did not deserve to die. And so I would make sure that, you know, the mitigating circumstances aside, that if the death penalty is warranted and we, as the jury, eleven other people find that that is the appropriate punishment then that is because I have come to the, I have situated myself with the burden that I will live with that the rest of my life.
ROBERT MADSEN: Sure. And so are there some type of cases that to you just scream it is automatic death penalty.
RICK HUBBARD: Your Honor, objection, staking.
THE COURT: They have been asking that question.
RICK HUBBARD: I know and I, but I am objecting as staking.
ROBERT MADSEN: I am not asking for any specifics, I am just asking if there is anything he can think of.
THE COURT: Right. I will allow the question.
ROBERT MADSEN: So is there anything that you can think of in your mind that just, you know, for you is automatic death penalty?
JUROR: No.
ROBERT MADSEN: Some people would say that the death penalty is kind of reserved for the worst of the worst. How do you feel about that statement?
JUROR: I would feel that that would be mostly accurate.
ROBERT MADSEN: Would you say that the death penalty would be deserved for those who are utterly irredeemable.
THE COURT: That has been asked and answered.
ROBERT MADSEN: If you were the Governor for a day and put two Bills on your desk, one to have the death penalty and one to get rid of the death penalty. Which one would you sign?
JUROR: I would sign the one that still allows the death penalty as an option of the State.
ROBERT MADSEN: And that would mean that you think there are reasons to have it?
JUROR: Correct.
ROBERT MADSEN: Can you tell me why?
JUROR: Because I believe that all options should be on the table.
ROBERT MADSEN: Now, as the Judge told you, you understand that the death penalty is never required in any case in South Carolina?
JUROR: Correct.
ROBERT MADSEN: Not in this case, not in any case, not even in the worst case you can imagine. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: And you understand the Judge talked to you a little bit about aggravation that the Government has to prove that to you not only beyond a reasonable doubt but that has to be unanimous. Do you understand that?
JUROR: Correct.
ROBERT MADSEN: Mitigation is something a little bit different. Mitigation is any reason to give someone a life without parole sentence. Do you understand that?
JUROR: I do.
ROBERT MADSEN: And it doesn't have any kind of burden of proof. Do you understand that?
JUROR: I do.
ROBERT MADSEN: And so that kind of means is that Juror number one here could say, you know, I saw this spark of humanity, I saw this relationship with his dad and because of that I want to give him the life without parole sentence. Do you understand that?
JUROR: I do.
ROBERT MADSEN: And Juror number two could say, you know what, I didn't see what Juror number one saw. But I saw a broken mind and to me that carries the value of life. And for that I want to give a life sentence. And you understand how they can come to the same conclusion but they can be different?
JUROR: Correct.
ROBERT MADSEN: And Juror number three could say, you know, I didn't see what they saw and I really can't tell you or put into words why I think a life sentence is appropriate but I just do. Would you be able to respect someone who said, I can't put it into words but I just know life is appropriate?
JUROR: Oh, absolutely.
ROBERT MADSEN: And you see how each one of them are different in their rationale?
JUROR: Yes.
ROBERT MADSEN: And you can respect that?
JUROR: Yes.
ROBERT MADSEN: And you understand after considering mitigation, when a Juror decides whether someone lives or dies, that is what we call an individual moral judgment. Have you ever heard that?
JUROR: Not until then.
ROBERT MADSEN: The way it has been best described to me is you made a decision on what the appropriate faith for you is and someone else might have made a different individual moral decision on what their faith is. And you would expect them to respect your decision, correct?
JUROR: Correct.
ROBERT MADSEN: And at the same time I would imagine you would respect their decision?
JUROR: Correct.
ROBERT MADSEN: Even though it was different from yours?
JUROR: Yes.
ROBERT MADSEN: And so you understand that if, if someone comes to their individual moral decision on what the appropriate penalty is they can't just give that away to kind of go along with the majority?
JUROR: Correct.
ROBERT MADSEN: That would be inappropriate.
JUROR: I probably am the most stubborn headed person out there.
ROBERT MADSEN: So let me ask you questions along that line. If you saw someone back in the jury room and they had come to their individual moral judgment and someone is trying to bully or browbeat them out of that would you step in and say something?
JUROR: As a third party witness to the browbeating?
ROBERT MADSEN: Sure.
JUROR: Absolutely.
ROBERT MADSEN: And, because obviously if you are in that jury room there is deliberations but if it gets past the point where civility is kind of left the room you understand that is inappropriate?
JUROR: Correct.
ROBERT MADSEN: And that is against the law. And the law allows you, you know what, if it gets to that point you could say, you could write a note and say, Judge, this is way past civil discourse, you need to kind of step in here. Would you do that if you felt if that was appropriate?
JUROR: Yes.
ROBERT MADSEN: Subject to the Court's limitations no further questions.
THE COURT: Fair enough. Solicitor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: How are you, sir.
JUROR: Doing all right, how are you.
RICK HUBBARD: Doing good. I am Rick Hubbard, Solicitor, leading the prosecution in this case. I just want to ask you a few questions too. I don't think I will be too long. You mentioned correctly that you would put that heavy burden on the State in proving their case. And know that burden if beyond a reasonable doubt?
JUROR: Yes.
RICK HUBBARD: So it is not beyond a shadow of a doubt, it is not something you can put into scientific formula but it is something that convinces you that I have answered all the reasonable questions and this is a, there is no reasonable doubt. Do you understand that?
JUROR: I do.
RICK HUBBARD: Okay. That is for the first phase and in the second phase with those aggravating circumstances or aggravating factors.
JUROR: Yes.
RICK HUBBARD: We talked about, are you just, just answer some questions about that second phase. Say you get into that phase and have already determined that the Defendant is guilty. Now it is about punishment. You said you want to hear everything, both what the State presents as aggravating factors and any mitigation on behalf of the Defendant, correct?
JUROR: Correct.
RICK HUBBARD: Did you know you could find both, aggravating factors and even mitigation and still render a death verdict?
JUROR: Yes.
RICK HUBBARD: So even if you find things that are favorable for the Defendant, maybe you do find that he had a tremendous relationship with his father or other things that are appealing that put him in a better life, you can still sentence to death?
JUROR: Yes.
RICK HUBBARD: You say you are a very strong person, once you reach your opinions you are very strong and you will also express your opinion. You will do that in a jury room?
JUROR: Oh, absolutely.
RICK HUBBARD: If you reach an opinion that death is appropriate would you just be as firm on death as you would be on life?
JUROR: Oh, I would be. And that probably would lean more towards life when death, a considered option, but that doesn't mean that I would not consider the death penalty. But, again, without knowing all of the mitigating circumstances I would not have formulated an automatic opinion one way or the other.
RICK HUBBARD: You would be open to hearing what I have presented in that phase?
JUROR: Correct.
RICK HUBBARD: Going back to that first phase, you have been asked about the verdict of not guilty by reason of insanity and you said you would consider that. You realize that experts may be brought in to say there is a mental illness but there may also be experts saying there is no mental illness. Do you understand that?
JUROR: I do.
RICK HUBBARD: Do you understand that burden is on the Defense by a preponderance of the evidence.
JUROR: I do. That is not my burden, right?
RICK HUBBARD: Correct. Okay. I think you have answered all of my questions, Mr. Belay. Thank you so much.
JUROR: Thank you.
THE COURT: You need to be heard, Mr. Madsen?
ROBERT MADSEN: No, sir.
THE COURT: Very good. Mr. Belay, the Court finds you qualified as a Juror. What that means, you are now part of a group of qualified jurors meaning you are on this list, a list of qualified jurors. You will follow the website, I understand you work with computers. The same one you were looking at for the time to come in, follow the instructions for qualified jurors. It will say please come in and report at so and so time, so and so date. Follow those instructions. Until that time please don't talk about the case, don't let anybody talk to you about the case, do not do any independent research, do not let anything try to influence you about this case. I tell that to every Juror. I want you to be influenced by what you hear in the courtroom. A lot of people are testifying under oath, on the court record and with everybody else here too, not something that is presented outside the courtroom, it does not have those same controls. So as you know, things on the internet could be untrue. Everything in the courtroom is all considered at the same time. Can you follow that oath?
JUROR: I can.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a few minutes.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in 32. (Whereupon, Juror 32, Todd Bedenbaugh entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are number 32?
JUROR: Number 32, yes sir.
THE COURT: Mr. Bedenbaugh, you are still under oath. I want you to say and spell your name for Joy so she can get it spelled right and make certain the microphone is picking you up.
JUROR: Todd, T-O-D-D; Bedenbaugh, B-E-D-E-N-B-A-U-G-H.
THE COURT: You pronounce it Bedenbaugh?
JUROR: Before you say Bedenbaugh--
THE COURT: The rich Bedenbaugh's are up in Newberry County.
JUROR: Bedenbaugh is in Newberry County, the rich ones.
THE COURT: The ones I know, I agree with you. My name is not Bedenbaugh, but if it were it would be Bedenbaugh. Mr. Bedenbaugh, have you talked about the case with anybody?
JUROR: As far as the case, no. My wife discussed dates and stuff like that.
THE COURT: Did anybody try to ask you about the case other than trying to go around scheduling and work things?
JUROR: Just my boss and I talked about work and he knows, because I didn't know exactly when I would be here so we talked about, I would have to let him know the morning of or the night before.
THE COURT: Let's talk about that. I told you that I want to hear about your schedule. Let's start, say Monday for about three weeks, what is your impact on your personal schedule, vacation, work?
JUROR: Really no problem. At night I have a banquet on May the 29th for my employees. Other than that I don't really have anything.
THE COURT: So if you were called to serve you could do so?
JUROR: Yes, sir.
THE COURT: Fair enough. Now, there has been publicity in this case, all sorts of information out there. In fact I read the indictments. So I am part of the information providing system. Social media, public media, they are doing their job and doing whatever they want to do. I have asked you to not talk about the case since Monday but prior to that you had no obligation to ignore it. You could consider whatever you wanted. Now, any information you have received at any time, up to right now, four years ago to the present, has that information you have heard or seen or otherwise considered caused you to form an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: No opinion?
JUROR: No, sir. I did stand up, I did hear about the case, I heard about it but I have not formed an opinion.
THE COURT: Well, most folks that say they hadn't just moved here. Several they did have, they have been here for the last year or so.
JUROR: Makes me feel better about some people that didn't stand up.
THE COURT: Okay. Everybody has got an answer to that question and thank you for your answer. Now, the witness list, did you review it?
JUROR: Yes, sir.
THE COURT: Do you know anyone?
JUROR: As far as knowing people, no sir. I recognized some names. A lady from the Lexington School district calls our house on--
THE COURT: Telling you about school is let out or something?
JUROR: Right but I don't know her personally.
THE COURT: She is not calling you?
JUROR: No sir, no. She is dialing a phone number.
THE COURT: It is automatic?
JUROR: Yes, sir.
THE COURT: That is one of those automated things.
JUROR: It is. Other than that I don't recognize any, other names.
THE COURT: You work for the school district?
JUROR: In Five, Lexington Five, yes sir.
THE COURT: Now, subject matter in this case will be involving testimony that will be about the deaths of children. It will be, it has been described to me, I have not seen it, it has been described to me as difficult, tough, graphic, harsh, unpleasant. That type of subject matter regarding the deaths of children, can you consider and receive testimony, graphic testimony, unpleasant testimony of that nature and still be fair and impartial to both sides?
JUROR: Yes, sir.
THE COURT: You can do that?
JUROR: Yes, sir.
THE COURT: I gave you a preliminary instruction, kind of aspects to a Capital case, two phase. Phase one is guilt or innocence, phase two is punishment. Phase one, the State has got to prove guilt beyond a reasonable doubt. If the State meets that burden it goes into phase two. At that point the State has got to prove an aggravating factor. Then the Defense presents on mitigating factors. Not knowing anything more than you know, if the State meets the burden of proving, the guilt is found, we are in the sentencing phase. I ask you to evaluate and read the types of potential jurors, one, two three. Can you self identify yourself as any of those three types?
JUROR: You mind if I read. I almost got through, I am a slow reader.
THE COURT: Sure.
(Whereupon, the Juror reads the form.)
JUROR: I would be type three.
THE COURT: Okay. And tell me, I wrote that and you have read it, I want to know what you think type three means?
JUROR: Well, in my brief summary of reading, I think I would have to hear the facts and then make the judgment before I could say, that is why I think I am not one or two. I think I need to hear everything before I can make a determination.
THE COURT: Fair enough. You want to hear everything, good and bad and then make a finding.
JUROR: Yes, sir.
THE COURT: Now, I want to go back to phase one. On phase one, I am going to give you a little more instruction on the law and ask you, can you follow these instructions if they were so presented. In phase one the State has got the responsibility on the burden of proving the murder. Killing of another, malice, that element. The State has got to prove that beyond a reasonable doubt. That is their responsibility. If they don't meet that burden the case, if it is not proven it ends. Now, also during that portion defenses can be presented by the Defense. There are some potential defenses, I am going to read all of them to you and then come back and ask my question. Potential defenses could be 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 everyone. Now if testimony is presented during the trial and one of those defenses comes into play because they could be supported or found based upon the evidence presented I will instruct on it and say, the defense has been raised and the aspects of that are thus and so. Now, can you be a fair and impartial Juror, considering all the facts, circumstances and evidence presented at trial, evaluate whether the State has met its burden of proving its case beyond a reasonable doubt or not and consider any and all defenses in my instructions on those defenses and give both the State and Mr. Jones a fair trial in this matter?
JUROR: Yes, sir.
THE COURT: Now, in this case one of the defenses has already been raised. Not guilty by reason of insanity. Because of that there are four potential verdict forms that can come into play. The verdict forms for the jury in this case likely will be guilty, guilty but mentally ill, not guilty of insanity, not guilty all together. Those are four potential verdicts the jury could reach considering what defense have already been claimed by Mr. Jones. I am saying he is presumed innocent right now, will be until the State proves his guilt beyond a reasonable doubt, if the State can do that, those are the four verdict forms. Can you give meaningful consideration to all the evidence and testimony, considering my instructions on those potential particular verdict forms and find any of those verdicts, find each and every one of them if the evidence supported it or didn't support while considering my instructions because part of it is the State has got to prove it. Can you find, consistent with my instructions any one of those four particular verdict forms.
JUROR: Yes, sir.
THE COURT: Can you be fair to the State in doing so?
JUROR: Yes, sir.
THE COURT: Can you be fair to Mr. Jones in doing so?
JUROR: Yes, sir.
THE COURT: If the State fails to meet its burden of proof or if the jury finds not guilty by reason of insanity the case ends. Okay.
JUROR: Okay.
THE COURT: Now, if the State meets its burden of proving the murder beyond a reasonable doubt it goes to phase two. During phase two there are several things that get presented to the jury then. Phase one, stands on the trial in itself. If a guilty verdict is found by the jury we go to phase two. If not the case is over. In phase two the State has the burden of proving an aggravating factor. I am going to name five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors. The State must prove at least one of those in order to ask a jury to consider imposing a death penalty. Do you understand?
JUROR: Yes, sir.
THE COURT: They have got to prove that unanimously beyond a reasonable doubt, that aggravating factor in order to ask that. Now, the Defense will present on mitigating factors or circumstances. I am going to read some statutory mitigators to you. The Defendant has no significant history of prior criminal conviction involving the use of violence against another person. The murder was committed while the Defendant was under the influence of mental or emotional disturbance. The victim was a participant in the Defendant's conduct or consented to the act. The Defendant was an accomplice in the murder committed by another and his participation was relatively minor. The Defendant acted under duress or under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime.
The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant was or had mental retardation at the time of the crime. Those are statutory mitigators that are allowed to be considered by jurors if the facts support it. Additional mitigators could be Mr. Jones life, early childhood, aspects of coming from a broken home, whatever that testimony is the jury's can consider those factors as reasons to impose a life sentence as opposed to a death sentence. So aggravators are reasons to impose death, mitigators are reasons to impose to life. Can you give meaningful consideration to the knowledge that the State has the burden of proving the aggravating factor, one of them beyond a reasonable doubt unanimously as well as consider mitigating factors in evidence, whatever the Defense presents. There is no responsibility of proving anything but they can present evidence for you to consider. Can you give meaningful consideration to all of that testimony, aggravating factors and mitigating factors and be a fair and impartial Juror for both the State and the Defense?
JUROR: Yes, sir.
THE COURT: You understand the death penalty is not automatic in the sentencing portion of the case?
JUROR: Yes, sir.
THE COURT: It is not automatic?
JUROR: Right.
THE COURT: Two verdict forms of punishment, death or life. No in between, no other options. But death is not automatic. Do you understand?
JUROR: Yes, sir.
THE COURT: Do you have any religious, moral, personal belief which would prevent you from finding a sentence imposing the death sentence?
JUROR: No, sir.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from imposing a life without parole sentence?
JUROR: No, sir.
THE COURT: Do you have any reason whatsoever you can't be fair to both the State and the Defense?
JUROR: I think I can be fair, yes sir.
THE COURT: Those are my questions. The attorneys will get to ask, Mr. McGuire and then a member of the prosecution team will ask you some questions. There are no wrong answers.
JUROR: Yes, sir.
THE COURT: Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: I got a little lost in the Bedenbaugh.
JUROR: My grandfather was a Bedenbaugh. And that means that you are poor. I have uncles that are Bedenbaughs so you figure it out, I am still a Bedenbaugh.
BILL MCGUIRE: Good morning, Mr. Bedenbaugh. My name is Bill, Bill McGuire and this is the opportunity where the lawyers get to ask you some questions about your views on the death penalty for the offense of murder. I am going to put you in a situation. In your mind I want to see yourself, you got to be Governor of South Carolina for a day and you had a Bill on your desk and you could sign it, we would continue to have the death penalty. And you had another Bill that said, we are not going to have the death penalty any more. Which one would you want to sign?
JUROR: Tough question. It depends on the evidence and I know that you are not asking me that. But I don't know that answer because I think everyone gets a fair chance. And I guess you want an answer, right, is that what you want.
BILL MCGUIRE: If you can find one, yes.
JUROR: That is hard for me to answer.
THE COURT: Go on to the next question, that is an answer in itself.
BILL MCGUIRE: Sure. Some people would say the death penalty is reserved for the worst of the worst cases. What do you think about that statement?
JUROR: Not necessarily. I just, well, I am a firm believer in, you know, everyone is innocent until proven guilty. So I think everyone has a, should have a fair chance either way, good or bad. So I don't agree with that, I guess.
BILL MCGUIRE: Okay. Well, so we can talk about this in more concrete terms. I am going to ask you to put yourself in a situation. You are on a jury, on a case, it is a murder case, not this case, some other case. But it is a murder case and it is the intentional killing of another human being with malice aforethought. That means, knew what they were doing, had an evil motive intent in their heart, not an accident, not self-defense, intentionally, deliberately took the life, lives of five children. Are you with me?
JUROR: I am with you.
BILL MCGUIRE: In that case, without hearing more, what are your thoughts about the death penalty as the appropriate punishment.
RICK HUBBARD: Objection.
THE COURT: He clarified without further.
JUROR: So you want me to answer that?
THE COURT: The best you can. A What was the question. I understand the parameters. Tell me your question again.
BILL MCGUIRE: My question is, in that situation, you are on a jury, eleven other people, you find a person absolutely guilty beyond a reasonable doubt, intentional taking of the lives of five children. And you have convicted this person. So now the person, and without hearing more facts, just knowing that what are your thoughts as the death penalty is the appropriate punishment for that type of case?
JUROR: Well, maybe I am slow too.
BILL MCGUIRE: This is the only day in your life where everything you said is one-hundred percent correct as long as it is what you think and feel. There are no wrong answers. And the Judge and I and the State, the State lawyers, all we want are your personal opinions. So in that situation what are your personal opinion about the death penalty?
JUROR: I think, in my opinion, in my heart if, you know, if the facts are true and, you know, I think the death penalty could be considered in those circumstances, if in the shadow of my heart it is the right thing and everything is proven, maybe, I guess. I don't know that I am hard fast either way to be honest with you.
BILL MCGUIRE: Okay. Well, I am going to give you the other side of the coin. Same situation, guilty, guilty person, all the evidence points to guilt, intentionally took the lives of five innocent children, could the life penalty be severe enough, harsh enough to punish that type of killing?
JUROR: It could be, in my opinion.
BILL MCGUIRE: Okay. And just knowing that situation that we talked about, the taking of innocent children's lives, would you say you are sort of in the middle or you start on the death penalty, you start at life. Tell me where you think you might start off at?
RICK HUBBARD: Objection to that, that is staking.
BILL MCGUIRE: It is a perfectly appropriate question.
THE COURT: Y'all have been asking something to that similar each time. I understand your objection. I am going to let him answer it.
JUROR: I guess I would start in the middle and let it, I want to hear all the facts I guess.
BILL MCGUIRE: That is a fair answer. And all of your answers are correct today as long as they are your personal beliefs.
JUROR: They are.
BILL MCGUIRE: And when it comes to fixing punishment for that kind of case, intentionally taking the lives of children, would the background of the killer be relevant to you, how they grew up, they grew up wealthy, they grew up poor, came from a broken home, parents stayed together, had a learning disability, made good grades. There is a lot of stuff that can be in there but just sort of their character and their background. Is that relevant when it comes to fixing punishment for that type of killing that we are talking about?
JUROR: I think so, I think so.
BILL MCGUIRE: I want to talk to you a little bit about the first phase right now. That is just like any other trial you have seen on the news or TV, do they have the right guy, is he guilty beyond a reasonable doubt. That sort of thing. In that first phase the jury would be able to consider not guilty by reason of insanity. And as the Judge told you, if the jury was to vote for that, the jury would never be able to sentence, would never be able to reach that punishment phase, that would end the case right there. And a lot of folks or some folks would say, you know what, not guilty by reason of insanity, not letting a sentence, not letting us punish, I don't want to vote for that because there needs to be some punishment for this intentional act.
RICK HUBBARD: Objection.
THE COURT: Ask your question, you are lecturing to him now.
BILL MCGUIRE: I am sorry, I apologize.
BILL MCGUIRE: So a lot of folks-
THE COURT: Sustained on the objection, get to the question that you normally ask.
BILL MCGUIRE: Some folks would say not guilty by reason of insanity, that is just a copout, not really punishing anybody. What do you think about that?
JUROR: I am not a scholar so insanity, I guess I would need to read a little more on insanity.
THE COURT: The Court will instruct you on aspects, that would happen. A Right and I would appreciate.
THE COURT: So now ask your next question. A I mean, I would have to have the facts to be honest with you. I know that doesn't answer your question.
BILL MCGUIRE: You are doing great, you are doing great. I think you have answered as much as you can so I am going to take you now to the second phase. Okay. So when we think about the court system in jury trials, we always think about the jury acting unanimously, all together, all twelve speaking with one voice. But in the sentencing phase of a Capital trial a lot of individuality comes into play and the twelve jurors become twelve individual decision makers.
RICK HUBBARD: Objection to that, Your Honor.
THE COURT: Get to your question about mitigation, that is a long question you are asking.
BILL MCGUIRE: Sure.
BILL MCGUIRE: And what I am going to do is give you some examples of how this works and if you have any questions about it let me know.
RICK HUBBARD: Your Honor, I object to that. He needs to ask questions.
THE COURT: He is doing that and he said everybody. So go to the, your next line of questioning you normally do.
BILL MCGUIRE: Sure.
THE COURT: The lawyers have been up here and I have heard a lot, I know what question he is going to ask but he is trying to explain things and sometimes all get a little wordy. I encourage them to minimize their words.
JUROR: They are doing their job.
THE COURT: They are doing their job. So don't hold it against them, I have heard it one-hundred times, you have only heard it once. A Yes, sir.
THE COURT: Ask your question.
BILL MCGUIRE: I am going to give you some examples of how this works and if you have any questions about it you just ask me. Okay. So each individual Juror as the right to find mitigation evidence for themselves on an individual basis and it is not a group decision as to whether or not mitigation evidence exist. Does that sound right to you? Does it sound fair, it probably sounds different than what you thought--
JUROR: Well, I obviously do research, I don't think that I would have that opportunity if I was on the jury, in the jury room, to do research--
BILL MCGUIRE: No, no, everything would be in the courtroom.
JUROR: Okay, okay.
BILL MCGUIRE: You don't get to go on google or anything like that. But you could hear, for instance this Juror right here could hear, I saw that the Defendant had an enduring relationship with his father. I saw a spark of humanity there, some hope of redemption. I want to vote for life for that reason, that is my reason. And then another Juror could say, I think he has some mental health problems. And I am not going to vote death for a man who has got a broken mind, I am not going to do it. And you see how the reasons could be different. They don't even have to agree. This person could say, I don't agree with your reason, this person could say I don't agree with your reason but they both are allowed to have their own reason to vote for the life penalty if they want to. Does that sound fair?
JUROR: I think so.
BILL MCGUIRE: And the Judge would tell the jury at the end of the trial that an individual Juror could vote for the life penalty for any reason, no reason, mercy alone. So another Juror could say, I listened to everything, I really can't put it into words why I don't want to vote for the death penalty, I just don't want to. As I contemplate the rest of my life, I don't want that burden on me and I am voting for life and they can do that for no reason. Does that sound fair?
JUROR: Tough question. It is a tough question. You know, I am being honest with you, it would be tough to do. Be tough either way.
BILL MCGUIRE: Sure. Now, the rules of court, the law in South Carolina forbids a Juror, if they reach a conscientiously held position, if it would harm their conscience to change that position, their vote, let's say they want to vote for life. It would be wrong and against our rules, actually it would be a violation against the jury oath and the rules of the Court for that person to change their position, abandon their individual moral judgment just to throw in with the majority. Did you know that?
JUROR: I didn't know that.
BILL MCGUIRE: We expect reasonable and, reasonable deliberations and civil discourse. But once a Juror reaches their conscious held position and it is described in the law as an individual moral judgment, they have to stick with it, they have a duty and obligation--
THE COURT: That has been asked and answered. Move on.
BILL MCGUIRE: Okay, thank you.
BILL MCGUIRE: And there are a lot of rules in court. Some of them are for me, some are for Mr. Jones but some are for the jurors. And the law is that these proceedings have to be conducted with dignity, decorum and respect. And if you were to see in the jury room, deliberations on punishment whether a human being lives or dies, and you saw maybe a majority trying to get somebody to abandon their position and it was bullying, it was forceable, it was coercion and civility and dignity and decorum had left the jury room, could you pass a note out here to the Judge saying, we need some help, it is getting, civility has left this room, Judge, can you help us get it back.
JUROR: Without a doubt.
BILL MCGUIRE: All right. When you came for jury selection across the street in the old Court House, did you recognize anybody else?
JUROR: Yes, sir.
BILL MCGUIRE: Can you tell the Court who that was?
JUROR: His name was Bryson Tucker. He did some work for our school district. He was released, a time before you released him so I did know him. Yes, sir.
BILL MCGUIRE: Okay. Thank you.
JUROR: I didn't talk to him.
BILL MCGUIRE: Sure, sure. Of course not.
BILL MCGUIRE: But just for the Court's benefit, we are not going to have anything further for the Court.
THE COURT: Solicitor.
EXAMINATION By Mr. Hubbard:
RICK HUBBARD: Mr. Bedenbaugh?
JUROR: Yes, sir.
RICK HUBBARD: Rick Hubbard, how are you?
JUROR: All right, how are you.
RICK HUBBARD: Just fine. I am going to ask you a few questions. Just listening to you it sounds like you are a man who wants to hear all the facts?
JUROR: I am.
RICK HUBBARD: You have got to have facts to make a decision?
JUROR: Yes, sir.
RICK HUBBARD: Let me ask you this. Say we get into that punishment phase that you and other members of the jury have found a man guilty. You go into the punishment phase, the Judge has told you about, there are aggravating factors that the State has to prove and there is mitigating factors that the Defense might bring out, things that might be beneficial and put the Defendant in a better light. Do you understand?
JUROR: Yes, sir.
RICK HUBBARD: Those are things that you would be looking for in that second phase?
JUROR: Yes, sir.
RICK HUBBARD: Did you know that you could find both of those, aggravating and mitigating factors and circumstances and still reach a verdict for either life or death. Did you know that?
JUROR: Yes, sir.
RICK HUBBARD: So you could find the good and the bad and still reach a life sentence. Could you do that?
JUROR: I could.
RICK HUBBARD: And if you, if you found aggravating circumstances have been proven by me and my team beyond a reasonable doubt, even if there are mitigating factors you understand that you could also reach a death sentence?
JUROR: Yes, sir.
RICK HUBBARD: And I believe you told the Judge that if you feel that is appropriate you could actually render a verdict on that?
JUROR: I feel in my heart that everything is correct, yes, I could.
RICK HUBBARD: One thing about the death sentence that is different from any other sentence. All twelve jurors have to put their name on the dotted line on that.
JUROR: It is tough.
RICK HUBBARD: It is tough, could you do that? If you reach a decision that, I am not going to ask you to make a judgment and abstract, you don't know the facts right now. Right?
JUROR: Right, that's correct.
RICK HUBBARD: But as a person, whatever those facts are, you reach that decision, you know what the facts are, is death. Could you take that further step, that one more step and say, I can put my name to it?
JUROR: I won't lie because I am under oath, it would be hard, very hard. I think maybe. You want a yes or a no.
RICK HUBBARD: Well, I guess, the reason why I am asking you, sir, is once you get on that jury I don't get to talk to you anymore about that.
JUROR: Right.
RICK HUBBARD: And this is just, nobody here is going to pin you down on what side of the aisle you are going to fall. That is for you to decide with eleven other people. Right?
JUROR: Right.
RICK HUBBARD: My question is not about that. I can't make you jump into the future and say where are you going to fall. But we do need to know, could you if you believed death is appropriate, whatever those facts are. Could you actually pick up a pen and sign your name to a piece of paper that is basically a death warrant?
JUROR: I can say I think so, that is the best answer I can give you.
RICK HUBBARD: But you can't assure us that you could? And I know this is tough, you are taking quite a lot of time and that is good.
JUROR: Right. I think the best answer is, I think so.
RICK HUBBARD: That is your honest answer?
JUROR: That is my honest answer.
RICK HUBBARD: That is all I can ask you, is your honest answers. Thank you so much.
JUROR: Thank you.
BILL MCGUIRE: Judge, if I can ask him a quick follow-up.
THE COURT: I was going to ask him a question.
EXAMINATION
By The Court:
THE COURT: Mr. Bedenbaugh, I think the lawyers, sometimes they will, don't explain everything. In phase two, sentencing, there are two choices, life or death. The lawyers are trying to tell you, after you have heard all of the mitigating factors, the reasons to give life and after you have heard all the aggravating testimony, if you all twelve jurors unanimously made the same decision and decide to impose one sentence or the other, that sentence will be carried out. So if you decided that life without parole and everybody else did, that sentence would be imposed and carried out. If all twelve jurors, after hearing everything, so if the facts support it, whichever it was, that would be the sentence. The Solicitor, I think, and Mr. McGuire asked a different question because they are on different sides. If all twelve jurors agree the death penalty was appropriate, after considering the facts, could you then sign?
JUROR: I could.
THE COURT: Okay.
THE COURT: Mr. McGuire, I will let you follow-up if you like.
BILL MCGUIRE: Nothing further, Your Honor.
THE COURT: That is kind of confusing, in the hypothetical, could you. That is the position you get in. The reasons, this is the one type of a sentence that if it is a death verdict all twelve jurors show their unanimity by signing. Okay.
JUROR: All right.
THE COURT: Is that a better explanation for you?
JUROR: Yes, sir.
THE COURT: Okay. In those circumstances could you sign it?
JUROR: Yes, sir.
THE COURT: Fair enough.
BILL MCGUIRE: Nothing for the Court.
THE COURT: Mr. Bedenbaugh, I am going to find you qualified. You want to be heard, Solicitor, I am sorry.
RICK HUBBARD: No, sir.
THE COURT: Okay, I didn't think so. I find you qualified. I will put you on the qualified jury list which means you need to check the internet, the same website that y'all have checked to when to come in and report. Qualified jurors will be required to check back or to report on some day, some time, to be determined later. Start Monday, as to when to come back to court. Until such time you can't talk about the case, you can't let anybody interrogate you, educate you or lecture on the case. Stay away from social media and news media. I don't want anything outside of the courtroom influencing your decision making. I want you to be influenced about what you hear in here under oath, from the witnesses called. These folks know more about the case than anybody else. They are going to present on it. Can you do that?
JUROR: Is it okay for me to inform my employer?
THE COURT: Yes, scheduling things certainly. But I don't want you to say, well, what I heard was, that kind of thing. I need to report back on jury duty for such and such date, absolutely okay. Can you deal with that?
JUROR: Yes, sir.
THE COURT: Thank you very much. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 86. (Whereupon, number 86, Rogers Chambers entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Are you Mr. Chambers?
JUROR: That is correct.
THE COURT: Mr. Chambers, I want you to give me a mike check by saying and spelling your full name for Ms. Holston.
JUROR: R-0-G-E-R-S, A-N-D-E-R-S-O-N, C-H-A-M-B-E-R-S.
THE COURT: All right, Mr. Chambers, you were asked to not talk about the case since last Monday. Have you talked about the case since last Monday?
JUROR: Not really. I mean my sister lives up in Cincinnati and she is coming down to take care of my mom and she asked why I couldn't be there and I told her I had jury duty.
THE COURT: And for scheduling is fine.
JUROR: Yeah, for scheduling. Not really talk about it as far as--
THE COURT: The facts about the case.
JUROR: Right.
THE COURT: Now, has anybody questioned you about the facts of the case?
JUROR: No, not really. I mean, people knew I was on jury duty and I just kind of--
THE COURT: Is that the case, that kind of thing. I mean, your response was?
JUROR: I can't talk.
THE COURT: Fair enough.
JUROR: I don't want to get in trouble.
THE COURT: That would create issues for the Court and that is a proper response. Now, there has been a lot of publicity in this case.
BOYD YOUNG: Can we talk to you.
THE COURT: Sure. (Whereupon, a bench conference was held in the presence of the Juror but out of the hearing of the Juror.)
THE COURT: Did you get a conviction in Georgia way back in '94, November, aggravated assault?
JUROR: No, there was no conviction, no. I was in a bar fight. I was scared.
THE COURT: It says it was dismissed. That case would have been dismissed in '91. Fighting and aggravated assault, dismissed. It appears it has been dismissed.
BOYD YOUNG: Okay.
THE COURT: I don't want to put you in a bad situation, I have got to ask. That is why I bring you in one at a time. Okay. Now, publicity, before you Monday you had no responsibility to me of not listening to it, reading about it, because you didn't know. I asked you Monday to kind of minimize that. Now, I read the indictments to the entire jury panel. That is information to you also, to also jurors, there was accusations made by the State to Mr. Jones. He is presumed innocent right now. Considering any information you have received from four years ago up to right now, has that information you have heard, seen or otherwise come into contact with, has that caused you to form an opinion as to what happened in this case?
JUROR: I just, I guess naturally you get opinions.
THE COURT: Okay. That is what I am talking about.
JUROR: That is human nature.
THE COURT: You got an opinion in this case?
JUROR: Yes, I do.
THE COURT: Okay.
JUROR: I don't know, to be honest with you, I have got too much going on. I remember hearing about it back then, saw it pop up on the newspaper.
THE COURT: Would it be fair to say you have got an opinion or you have got a curiosity as to what went on?
JUROR: Well, sometimes I guess I form an opinion without seeing the facts, yeah.
THE COURT: Can you give me an idea of what that opinion is?
JUROR: Honestly, if somebody hurts their children, I don't like that but I don't know that yet. That is my given.
THE COURT: You believe that went on in this case?
JUROR: To be honest with you, I mean, just from what I seen or read, yes.
THE COURT: Now, I ask you to identify yourself as one the types of jurors, have you got yourself identified on there?
JUROR: I do.
THE COURT: Where are you?
JUROR: Three.
THE COURT: You want to hear everything?
JUROR: I like to hear stuff because I feel like you want my opinion on this?
THE COURT: Absolutely.
JUROR: Okay. I feel like sometimes an eye for an eye. But I do feel like due process. I believe people are allowed due process but if there is circumstances out there wholeheartedly I feel like someone has failed.
THE COURT: You understand this case, accusations have been made by the State against him. The news accounts and whatnot you heard in the past, are you going to be able to set that aside and listen and see what happened or is that going to impact your decision making at this point forward. That is my concern is, I kind of think he did it already. I kind of want to know whether you think you can do that.
JUROR: I guess it is hard to say until you are put in that situation. I mean, because like I said, you go into something and, I mean someone is innocent until they are proven guilty. But sometimes there are things that will sway your mind. And then sometimes they will sway the other way. I mean, I don't know about the case but I do feel that, if someone can actually say, no, I have no objective opinion about something. I think we all do, just human nature.
THE COURT: Okay. I agree with you. I am going to this fashion. I am going to excuse you from this case because I don't want to put you in that position, figure out whether you can do that or not. So you are free to go.
JUROR: Thank you.
THE COURT: Good luck and thank you, sir. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: We will stand at ease until 12:00.
(Whereupon, a lunch break was taken.)
THE COURT: (Whereupon, Juror number 264, Teresa MacFawn; 245, Thomas Lee; 285, Taylor Medlin; 377, Victoria Schneider; 366, Ashley Russell; 469, Candy Whisenant; 83, Laguadia Caughman; 143, Bryan Ferreira entered the courtroom.)
THE COURT: All right, folks, thank you for being here. We got to eat inside of 45 minutes rather than 30 minutes yesterday. My name is Eugene Griffith, again, we are going to bring you back into the courtroom after we place you under oath individually and ask you questions, all the questions is your personal feelings and opinions are about this subject or that subject. So no wrong answers, just candor, candid answers. Cameras in here are off, nothing being recorded or nothing like that. When you get back in the jury room I don't want you to discuss the case because my first question to you, each of you, have you discussed the case with anybody. That is my first question. I had a Juror look at me, like I was accusing her and I wasn't, that is just question number one for me. So with that end y'all all stand and you will be placed under oath.
(WHEREUPON, the jury panel was sworn at 12:20 p.m.)
THE COURT: Y'all be seated. Also the first early questions are your schedules and what conflicts in your schedules over the next few weeks. I will ask you about that also. I have read this to all the other panels, I will read it to y'all. 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. 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, evil, ill-will or hostility. The definition of murder excludes any just cause or excuse for the killing. When the State alleges the offense of murder, combined with certain aggravating circumstances the State can seek the death penalty. Before and during a trial a person accused is presumed innocent of each element of the crime which he is charged.
The State must prove each and every element of the crime to a standard of proof called beyond a reasonable doubt. In most criminal cases Judges determine the punishment upon a conviction. But in a Capital case the jury determines punishment. In a Capital case the trial is divided into two phases potentially. The guilt or innocence phase and if necessary the punishment phase. In the first 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 punishment. Either life without the possibility of parole or death. Our law in South Carolina does not allow the State to seek that execution if a person is convicted solely of the murder.
The State must prove 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 circumstance. 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 the trial. I will instruct you as to how to consider and evaluate the testimony, whether it be evidence of an aggravating factor, evidence of mitigation, that 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 or not guilty by reason of insanity. Until all the testimony and evidence is presented in the trial I am not able to tell you the exact instructions of the law which I will give. But when you come back in individually the question imposed to you will be, can you accept an oath to meaningfully consider all the testimony and evidence and apply the law as I instruct it and consider all of this evidence consistent with my instructions. Those are the preliminary instructions. Have y'all back here one at a time. Remember, don't discuss the case, cameras are off. I will ask you about your work, personal schedule, calendar. All right. See you back in a few minutes. (Whereupon, the jurors were excused from the courtroom.)
THE COURT: Are y'all ready on 264.
BOYD YOUNG: Yes, sir.
THE COURT: Bring her in. (Whereupon, Juror 264, Teresa MacFawn entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon. I am going to let you say your name and spell it so Ms. Holston can see if she has where she can hear you.
JUROR: Teresa, T-E-R-E-S-A; MacFawn, M-A-C-F, as in Frank, A-W-N.
THE COURT: Ms. MacFawn, you have already been placed under oath, I had you under oath since last Monday about not communicating about the case. Have you talked about the case in any way?
JUROR: I have not.
THE COURT: Has anyone tried to talk to you about the case?
JUROR: Well, a couple of people have said,--
THE COURT: Is that the case?
JUROR: Yes and I have said, I am sorry, I am not allowed to talk about it.
THE COURT: That is an appropriate answer. Now, I in that jury qualification over in the old Court House, I read the five indictments, published them, those are the accusations made by the State of Lexington County to Mr. Jones. He is presumed innocent, will be, remained, presumed innocent until the State can prove its burden of proof, if they can. Now, there has been publicity in the case, since four years ago, off and on, last two weeks there has been some. Any information you have received through today, through right now, I don't care where you got it from, up to right now, has any of that information caused you to form an opinion as to what happened in this case?
JUROR: No.
THE COURT: Okay. Now, you, what does your calendar look like commencing next week through the end of May, early June, what have you got personally in work or whatever obligations for your family?
JUROR: I mean I work but they know at work there is a potential. So I kind of have people, I have other people that I work with that can cover for me. I have one doctor's appointment that I can reschedule.
THE COURT: Okay. That is kind of what I am listening for because it is going to be an inconvenience if you are called to serve but it is a civic duty so the inconvenience kind of goes along with it. So no prepaid vacation or anything like that?
JUROR: No, not unless we are going into July.
THE COURT: Well, my daughter is getting married in July so I am hoping that we are all clear and the lawyers seem to be consistent with things we will be done way before July.
JUROR: Now, my children did tell me they were giving me a really good Mother's Day present. I don't know what that is, unless I am going on a trip.
THE COURT: Let me know next week. I wish you well and Mother's Day is to be enjoyed. I want to talk about subject matter, there is subject matter in this case involves the death of five children. It has been described and I have not seen it, I have heard some testimony, preliminary, not too much. The testimony has been described by the lawyers who, the photographs as being unpleasant, graphic, harsh, very difficult. Those have been the words being used to me to describe it. The testimony of that type, subject matter of that being graphic, harsh, unpleasant create an issue for you being fair and impartial knowing that is what the Court is going to receive. I am going to receive it, the jury is going to receive it. You will consider that, whatever it is. I am telling you, it is coming down the track here, if you are selected as a potential Juror would testimony of that type of subject matter create an issue for you personally to receive and consider it fairly and impartially and give both the State and the Defense a fair trial?
JUROR: No, I think I could do that. It would be tough, yes. But could I get past that to be fair and impartial.
THE COURT: Now, I gave a summary, let me ask you about the witness list. Did you go over the witness list?
JUROR: I did.
THE COURT: All of those witnesses won't be called, most of them could, all of them could be called. Are you connected to any of those witnesses in any way?
JUROR: No.
THE COURT: I gave a summary of criminal process, criminal procedure a few moments ago. Did you understand those instructions?
JUROR: Yes.
THE COURT: Describing the two phase, two portions to the case if necessary. The first portion is guilt or innocence only. The second portion, if necessary, is punishment. I also gave you a sheet to read before you came in about the types of jurors. So kind of hypothetical, guilt has been determined in my hypothetical types of jurors. Then the jury considers, the State has got to prove an aggravating factor and mitigating factors. Can you self-identify as one of those three types of jurors just based on that kind of hypothetical?
JUROR: Number three.
THE COURT: You are number three?
JUROR: Number three.
THE COURT: All right. I wrote that and so I ask each Juror, what does that mean to you, what do you think I was trying to ask?
JUROR: I think that means of me not coming in with any predetermined feelings of how, based on the indictments, based on those indictments that I would automatically choose.
THE COURT: So you are coming in with non preconceived notion?
JUROR: Right. In fact, I haven't heard the case under, I don't know what rock, if I would do anything.
THE COURT: Fair enough. You want to hear everything before you make a decision, the good and the bad, hear it all?
JUROR: Definitely.
THE COURT: I am going to go back and I am going to kind of divide the two parts and tell you some aspects of the law that you will have to consider and follow. Because I instruct the law in the cases, that is my job is to instruct the law and this is the law of South Carolina and the State is required to do thus and so. And you are to consider this in that manner, kind of define things for you. In a case like that there is a two-phase case. The State has the burden of proving the murder in phase one. They go first, they call their witnesses and they are trying to prove killing of another with malice aforethought. That is their job. So they call their witnesses first. In the first part they have got to do that to a burden of proof called beyond a reasonable doubt. During that same first phase the Defense can also present on defenses. They are allowed to, the defenses are things that if the evidence supports them then I also instruct on defenses and defining those.
I am going to give you several defenses and then I will come back and ask you a question. This does not mean all these defenses come into play in the trial because if testimony doesn't support I won't give that instruction because it is not relevant. It is like misidentification or something. I wouldn't instruct that if the evidence wasn't presented. Potential defenses include identification, accident, involuntary intoxication, self-defense, necessity, insanity, guilty but mentally ill, entrapment, defense of habitation, duress and alibi. Those are potential defenses available to everyone. Now, if evidence is presented during the trial, during the first phase to support any of those I will instruct on those aspects of the law. So can you take an oath to be a fair and impartial Juror, to understand my instructions that the State is required to prove its case beyond a reasonable doubt, the elements of the murder. But if any defenses are presented you will consider the aspects of my instructions on those facets of the law and be a fair and impartial Juror to both the State and to the Defense?
JUROR: Yes.
THE COURT: You can do that. Now, in this case there has been a defense already claimed, it has been presented because it has to be ahead of time, it is not guilty by reason of insanity. By that plea it brings in another aspect of a verdict form that is slightly different because normally it is guilty or not guilty. But in this case because of the defense there are four potential verdicts, guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty all together. Those are the four potential verdicts. Can you accept an oath to be a fair and impartial Juror to both sides, consider my instructions on the law, defining those four potential verdicts, consider them meaningful, all the evidence and testimony and be a fair and impartial Juror to both the State and the Defense?
JUROR: Yes.
THE COURT: Now, if the State fails to meet its burden of proving the case then the case will not be proven and it ends there. If the jury reaches a verdict of not guilty by reason of insanity the case ends. If the State meets its burden of proof, proves murder the case then goes to the second phase which is the punishment phase. In the punishment phase, additional things for the jury to consider. The jury then considers whether aggravating factors have been proven beyond a reasonable doubt by the State. Aggravating circumstances could include murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating circumstances. The State needs to prove one of those beyond a reasonable doubt unanimously to the jury in order for a jury to be allowed to consider the State's request for the death penalty. You have got to prove that beyond a reasonable doubt unanimously before the jury can even think about giving the death penalty. Do you understand?
JUROR: I do.
THE COURT: Now, also during the sentencing phase mitigating factors, circumstances are presented to jurors. They need not be proven, they are shown, they are testified to so they are considered by the jury.
JUROR: My mind left me just momentarily. Back up just that last--
THE COURT: The State has got to prove the aggravating factor beyond a reasonable doubt unanimously. Mitigating circumstances are facts and circumstances that would cause a person to say, I am going to give a life sentence as opposed to a death sentence. Those need not to be proven, they are just shown for a jury's consideration. Jurors may attach significance to those depending on the testimony and how they are hearing the evidence. I will give you some examples of 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 and his participation was relatively minor. The Defendant acted under duress and under circumstances or 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 facts outlined by the statute that jurors can consider. So they are really neat, they are considered, they are not required to be proved by some standard of proof. They are testified to, jurors can consider it. There are other factors jury's can consider that aren't outlined in the statute such as a person's childhood, he came from a broken home, he was an abused child. Any aspects of that early, I mean the entire life can be considered as mitigating factors if the jury so chooses.
So my question now becomes is, in the sentencing phase jurors hear aggravating factors, testimony from the State which the State must prove beyond a reasonable doubt unanimously. Jurors also hear testimony and evidence regarding mitigating factors and the jury considers those and they evaluate and weigh those and make a determination as to whether or not the sentence of death of life will be imposed. There is only two choices in the sentencing phase, one of the two, life or death, nothing else, no middle ground, no other options. Can you give meaningful consideration to the State's burden of proving the aggravating circumstance unanimously beyond a reasonable doubt and consider any mitigating factors in evidence, act as a fair and impartial Juror in reaching your verdict for punishment. Can you do that?
JUROR: Yes.
THE COURT: You understand you have got to be fair and impartial for the State and fair and impartial for Mr. Jones. Can you do both sides?
JUROR: Yes.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from imposing a sentence of death?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from imposing a sentence of life?
JUROR: No.
THE COURT: Do you know any reason whatsoever you can't be fair and impartial?
JUROR: I don't.
THE COURT: All right.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Ms. MacFawn. I am Boyd Young, one of Tim Jones lawyers. Did you know any of the other jurors who came in on the panel on Monday, did you see anybody you recognized?
JUROR: No, I did not.
BOYD YOUNG: Okay. The Judge has, do you recall he read you the indictments from Monday, the five counts of murder and Tim is charged with murdering his five children. And the Judge has told you that he has plead not guilty by reason of insanity. Okay. So that means, what he is saying is, I did the killings, I did the acts but because of a mental disease or defect I was not able to appreciate the legal or moral wrongfulness of my actions. Do you understand what the Defense is saying?
JUROR: Yes.
BOYD YOUNG: Some people say to me in that type of case that is not really a verdict that I could consider, that would be just like letting somebody go, just an excuse. And what do you think about that verdict or that sentence or that verdict, not sentence.
JUROR: Back up just a little bit on the question. I just want to make sure I understand completely what you are asking.
THE COURT: And, Ma'am, you can be assured, the Court will instruct on the aspects of those four verdicts. He just wants to make certain, ask your question again. So I will give you instructions on that. I don't want you to think that you have to go do homework or anything. You are going to get the instructions. Just ask the question. A Right. If you can ask the question again.
BOYD YOUNG: Absolutely. And if there is anything you don't understand, I want you to be clear, I want to be clear.
JUROR: I just want to be clear I understand exactly what you are asking.
BOYD YOUNG: And there is no right or wrong answer. It is just your opinions and thoughts. Okay.
JUROR: Right.
BOYD YOUNG: Some people, you understand what not guilty by reason of insanity means?
JUROR: Yes.
BOYD YOUNG: Did it, didn't know the difference between legal or moral right from wrong. Right?
JUROR: Yes.
BOYD YOUNG: Some people say it is like the twinky defense, that is not something that I would give meaningful consideration to. As a defense, in this type of case--
JUROR: You are asking me would I give that consideration?
BOYD YOUNG: I am asking where you are on that, is that something that you think you could give meaningful consideration to or not?
THE COURT: I think it is okay.
JUROR: Yes, I do.
BOYD YOUNG: You understand sometimes people are mentally ill or having brain damage and they are not able to understand the wrongfulness of their actions. And those people we, we have a different set of rules for those people. We find them not guilty and the trial is over. Right? I am telling you if you find him not guilty, not guilty by reason of insanity the trial will be over.
JUROR: Right.
BOYD YOUNG: The jury's job would be done.
JUROR: I got you.
BOYD YOUNG: Okay. But if he is found guilty or guilty but mentally ill then we will have a second trial and that is the penalty phase. Okay. Where the jury would ultimately decide between life or a death penalty. Do you understand?
JUROR: Yes.
BOYD YOUNG: So in order to get to that second trial that means that the jury would have all unanimously decided beyond a reasonable doubt that the person was guilty, guilty, malicious intentional murder of multiple children. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Any evidence that they would have heard about insanity they would have just said, no, that is not the case, we find beyond a reasonable doubt that he was sane, knew what he was doing, chose to kill. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: At that point in the stage can you tell me a little bit about your feelings about the death penalty for that guilty murderer?
JUROR: I think, you know, I felt like this question was going to be asked. I was asking myself, how do you feel about this. You know, and I am like, how did you get to be 63 years old and you don't have a black and white answer to this. But I don't because I feel like you have to take all of the circumstances into consideration and, you know, I don't feel like one-hundred percent the death penalty, one-hundred percent that I wouldn't give the death penalty, that I would go for life imprisonment. I would have to weigh--
BOYD YOUNG: Did you say weigh or wait?
JUROR: Weigh. I would have to weigh everything that I heard.
BOYD YOUNG: Okay. I am going to come back to you and talk to you about weight in here in just a second. Okay.
JUROR: Okay.
BOYD YOUNG: Don't let me forget.
JUROR: Okay.
BOYD YOUNG: I am just kidding. All the facts and circumstances and you will have all the facts and circumstances about what happened, how it happened, when it happened, all of those facts and circumstances. Do you mean more than that. Like how he was raised, what his life was like, what his future is like, his background and character. Would that be important to you?
JUROR: I think everything is going to play, would play into trying to make a fair decision, you would have to look at everything.
BOYD YOUNG: And it sounds to me like for you in making this ultimate decision about whether or not to end a person's life you would be the type of person that says, to me, I have to weigh the whole life in order to make that decision?
JUROR: I have to weigh everything.
BOYD YOUNG: And I just used weigh again myself.
JUROR: And I don't know, it is just that I would have to look at every single, I mean, you know,--
BOYD YOUNG: It is not a wrong word.
JUROR: Right.
BOYD YOUNG: And in South Carolina, some States you ask jurors to weigh things out. In South Carolina what we ask jurors is to assign their own value. So in South Carolina you can assign any value you want to any piece of mitigation you want. You can say, I saw a relationship with his father, for me I am going to give that relationship the value of life and the law is perfectly okay with that. Do you understand that?
JUROR: Yes.
BOYD YOUNG: And that is why I talked about the difference between weighing, value. Does that make sense to you?
JUROR: Yes.
BOYD YOUNG: Can you tell me a little bit about, sort of general, your philosophy about the death penalty. Have it, don't have it, good things, bad things, necessary evil.
JUROR: Yes, I think it could be a necessary evil.
BOYD YOUNG: Okay.
JUROR: Like I said, I thought this question was going to come up. And how did I get to be the age I am and not, but and I know some people, it is black and white for them.
BOYD YOUNG: Yes.
JUROR: You know, and looking at things, it is not black and white for me. And some ways I wish it were.
BOYD YOUNG: Right, that would make it easy.
JUROR: It would make it easy. And I thought back to cases I have heard in the past. And that somebody got the death penalty or somebody got life in prison or somebody was let off or whatever. How did I feel about that. I mean, I have kind of had these things going through my head this week. And I was like, every circumstance is kind of different, you know.
BOYD YOUNG: I do. Tell me about, just some of those cases that you heard where somebody got the death penalty and you were thinking about it, did you think about things that you would have maybe learned about a person that would make you think that maybe life penalty might be appropriate.
SHAWN GRAHAM: Objection, Your Honor. Staking out.
THE COURT: Overruled, I am going to let him ask it.
JUROR: I can answer the question?
THE COURT: You can. A I mean, I was like, thinking about the Timothy McVey, the Oklahoma City. That one that came to my mind. I was like, yes, that was a death penalty case and I am okay with that. You know, and then I thought about how do I feel about the fact that we killed Osama Bin Laden. And I was like, I guess I am okay with that. And then I have heard, those were just two that popped into my head. I didn't spend like hours thinking about this, I just knew this question was going to come up. And this is not a black and white thing for me. And where do I, you know, and those were just things that came to my mind.
BOYD YOUNG: And those are two perfect examples. Like I said, you can't give a wrong answer. My question is, anything about Timothy McVey, some sort of domestic terrorist like that, that you could learn about a person when deciding between life and death and say maybe, domestic terrorist did a horrible act. But if this was presented I might think that letting them live in prison until they die--
JUROR: It was very different from, I think from terrorism.
BOYD YOUNG: Okay.
JUROR: I would just have to look at everything and weigh and everything. That is just me on that.
BOYD YOUNG: That is exactly where you need to be Ms. MacFawn. This decision, this ultimate decision about whether or not the jurors decide the life penalty or the death penalty is what is called an individual moral judgment. Okay, are you with me on that?
JUROR: Yes.
BOYD YOUNG: Each Juror decides for herself what her moral judgment is about the appropriate penalty. Okay?
JUROR: Okay.
BOYD YOUNG: And individual moral judgment is sort of like choosing what faith is right for you. You have made your individual moral judgment about that decision for yourself. Is that right?
JUROR: Yes.
BOYD YOUNG: And you recognize that other people may have made different decisions for themselves.
JUROR: Right.
BOYD YOUNG: You respect their right to their own individual moral judgment about something that significant?
JUROR: Right.
BOYD YOUNG: You expect them to respect your right to make your own individual moral judgment about something so significant?
JUROR: Yes.
BOYD YOUNG: And if you saw somebody being bullied, harassed, or belittled to change to what they had arrived at as their individual moral judgment would you stop it?
JUROR: Oh, absolutely.
BOYD YOUNG: No question about that. If you had to you could even send the Judge a note saying this needs to stop?
JUROR: Oh, yes.
BOYD YOUNG: Is that something that you could do?
JUROR: Yes.
BOYD YOUNG: Only if all twelve people arrive at the same individual moral judgment for death is the appropriate punishment, will the punishment be death. Do you understand that?
JUROR: Yes.
BOYD YOUNG: Okay. Thank you.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Good afternoon, Ms. MacFawn. My name is Shawn Graham, I am one of the prosecutor's for the State on this case. I have just a few follow-up questions for you as well. In the first phase with the Defendant pleading not guilty by reason of insanity you understand that we will hear from psychiatrists and phycologists most likely. And a little different in this kind of trial with those types of people testifying and they get to give an opinion about yes, I think he was insane, no, he wasn't. Do you understand that?
JUROR: Yes.
SHAWN GRAHAM: Just like any other witness, you do understand that you have the right to judge their credibility and also look at the facts yourself, you don't just have to accept the opinion of an expert?
JUROR: Right.
SHAWN GRAHAM: Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: Okay. Assuming we make it to the second part so you and the other eleven jurors found beyond a reasonable doubt that Mr. Jones was guilty and then we go toward the second part, that is the phase that I am going to talk to you about now.
JUROR: Okay.
SHAWN GRAHAM: In that part, the State would have to prove an aggravating factor which in this case is a death of multiple people or a child, the death of a child under eleven. Once you and the other eleven jurors found beyond a reasonable doubt that the State had proved that, only at that point could you start to consider punishment. Does that make sense?
JUROR: Yes.
SHAWN GRAHAM: And you are a type three Juror, correct?
JUROR: Correct.
SHAWN GRAHAM: So that means that you would go into that punishment phase and depending on what you heard if you thought it was appropriate you could decide on a life sentence, correct. If on the other hand you thought it was appropriate you could decide on a sentence of death. Is that correct. You would want to hear all the good?
JUROR: I want to hear it all.
SHAWN GRAHAM: So the Defense would present to you what the Judge referred to as mitigation. That is anything that would be a reason to give life. So they would present evidence. There is no burden of proof. You are willing to listen to that?
JUROR: Yes.
SHAWN GRAHAM: You are willing to consider that?
JUROR: Yes.
SHAWN GRAHAM: And you understand that even if you see it and you find that it exists, yes, you can give life on it. Do you understand that?
JUROR: Yes.
SHAWN GRAHAM: You understand that even if you find it, you consider it, you see it and you find it that you can still give a verdict of death. Do you understand that?
JUROR: Okay, yes.
SHAWN GRAHAM: One of the things that is different about a Capital death penalty type case is, if you and the other eleven jurors unanimously decide, after hearing all of the evidence, that death is the appropriate sentence you actually don't just say it, you actually have to write your name on a document to attest to it that that is what your belief is.
JUROR: Right.
SHAWN GRAHAM: Knowing that, if you and the other eleven jurors thought, unanimously thought that death was the appropriate sentence could you sign your name to a document of that fact?
JUROR: Yes.
SHAWN GRAHAM: Thank you, Ma'am.
THE COURT: You want to be heard?
BOYD YOUNG: No, Your Honor.
THE COURT: Very good. All right, Ms. MacFawn, the Court will find you as, does the State need to be heard?
SHAWN GRAHAM: No, sir.
THE COURT: I didn't ask before I started talking. I am sorry, the lawyers can be heard and they are in agreement that you a qualified Juror. You are a qualified Juror, you will be on a list of qualified jurors. You are to follow the internet website of Lexington county, the one that you were checking to find out when to come in today. Under the qualified jurors instructions it will say, please check back or please report on this date, this time to the Lexington County Court House at some particular time. You report back when it says to report back. Okay. Until that time you are going to remain under oath to not talk about the case. Additionally, I do not want you to do any independent research. What you need to decide this case will be here in the courtroom. And the parties, the witness stand, under oath not outside, unsworn, unchallenged. Do you understand?
JUROR: Yes.
THE COURT: Minimize your publication contact, come back in when it says come back in. Can you do that.
JUROR: Yes, sir.
THE COURT: I am counting on you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 245. (Whereupon, Juror 245, Thomas Lee entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: We are going to give you a mike check. Spell your name so she can check your voice out.
JUROR: Thomas Lee. T-H-O-M-A-S, L-E-E.
THE COURT: I am going to ask you questions in the first part and Ms. Holston takes down everything you say, we need yes or no answers. You are under oath. Since last Monday have you talked to anybody about the case?
JUROR: No, Your Honor.
THE COURT: Has anybody asked you anything about the case?
JUROR: No.
THE COURT: So other than scheduling and telling somebody I have got to go to court?
JUROR: That is it.
THE COURT: There has been a lot of publicity in this case. I want to know about anything, I am just assuming you heard what I said in the courtroom and I read the five indictments. You have got information about the case?
JUROR: Yes, sir.
THE COURT: Other information is out there. So since four years ago to right now, any information you have come into contact with?
JUROR: No.
THE COURT: I read you the indictments, that is information you have heard?
JUROR: Yes, sir.
THE COURT: I don't care whether you have seen a news report or not, but any information you know about the case, can you or have you, caused -- let me ask the question properly. Has any of that information caused you to form an opinion already as to what happened?
JUROR: No, Your Honor.
THE COURT: You haven't formed an opinion?
JUROR: No, sir.
THE COURT: All right. That is what I was doing, a poor job of asking you. Okay. No opinions yet?
JUROR: No, sir.
THE COURT: Fair enough. What is on your calendar for the next three weeks, personal, work or otherwise.
JUROR: Just work.
THE COURT: And serving jury duty is an inconvenience. It is a civic duty so you can be inconvenienced. Don't have a prepaid vacation or something next week?
JUROR: No, sir.
THE COURT: Now, the testimony in this case, evidence in this case is going to be graphic. It is about subject matter including the death of children. The lawyers have exchanged information, know what it is about, I haven't seen a lot of the evidence. They described it being very difficult, graphic, unpleasant. Would testimony of that subject matter, knowing it is going to be graphic and unpleasant, can you still consider that type of subject matter and testimony and evidence and still not let it affect you emotionally, personally and give both sides a fair trial?
JUROR: I believe I can.
THE COURT: I want to ask that because some people have something that happened in the past. I want to make sure you are comfortable even though it is going to be unpleasant to receiving it.
JUROR: I understand.
THE COURT: Have you looked over the witness list?
JUROR: Yes, I have.
THE COURT: I get both sides to turn in their witness list to see if you are connected to them.
JUROR: I didn't know any or anyone.
THE COURT: Didn't know anyone. Fair enough. Now, I gave you a brief instruction on the law thirty minutes ago. Kind of a two-step process on a Capital case.
JUROR: Yes, sir.
THE COURT: The stage one is guilt or innocence only. Stage two is the punishment phase. I handed you a three types of Juror case for you to study. Did you review that?
JUROR: Yes, I did.
THE COURT: Did you also understand my instructions earlier?
JUROR: Yes, I did.
THE COURT: Now, this three types of Juror kind of presumes the burden of proving on guilt. So a person has been found guilty or about to consider aggravating factors, the State has got to prove those by a reasonable doubt and mitigating factors.
JUROR: Yes, sir.
THE COURT: Can you self-identify yourself as a type of Juror?
JUROR: I feel I am number three.
THE COURT: Okay. Now, I wrote that, can you tell me what that means to you?
JUROR: To me it is, to be able to consider both sides of the story before determining the outcome of a verdict, if you will.
THE COURT: You have not made up your mind?
JUROR: No, sir.
THE COURT: You want to hear everything?
JUROR: Yes sir, I think it is important to hear both sides of every story.
THE COURT: Both sides of every story. That is a fair assessment of what I was intending to seek out on three.
JUROR: Yes, sir.
THE COURT: I am going to step back and go back to phase one and give you some other aspects, looking for your, this trial is going to take several steps as it goes along and I give instructions from time to time through those things about the aspect of the law. In phase one, guilt or innocence, the State is going to go first because they have to prove beyond a reasonable doubt their murder accusations. Mr. Jones is sitting right here, he is presumed innocent right now and will be all the way through the case until the jury finds the State has proved its case beyond a reasonable doubt.
JUROR: Yes, sir.
THE COURT: Until then he is presumed innocent.
JUROR: Yes, sir.
THE COURT: That is an instruction, that is what I do in a case. During the State's presentation on guilt or innocence they call their witnesses first. The Defense is allowed to present defenses. Does that make sense?
JUROR: Yes.
THE COURT: Potential defenses. I am going to read them all, not all of these will be suggested to the jury because the testimony has got to support them for the jury to consider them. 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 available to people accused. Now, can you be a fair and impartial Juror to both the State and Defense, consider my instructions on the law regarding the State's burden of proof but also consider my instructions on any aspects of those defenses which the evidence may support, weigh the evidence, consider the evidence, meaningful consider the evidence and be fair to both sides?
JUROR: Yes, I can.
THE COURT: Can you do that being fair to the State?
JUROR: Yes, I can.
THE COURT: Can you do that in being fair to Mr. Jones?
JUROR: Yes, I can.
THE COURT: If during phase one the State fails to meet its burden of proof that will be an acquittal, not guilty, not proven. The case ends. But if the jury finds a verdict of not guilty by reason of insanity the case ends there. Okay.
JUROR: Okay.
THE COURT: Let me go back to the four potential verdicts. I skipped a step. I have been doing this, kind of repetitive to me. I ask the same general questions.
JUROR: I understand.
THE COURT: Because of the defense presented by Mr. Jones, he has claimed one of them already, one of his potential defenses, he and his team have claimed one. There goes into play four potential verdict forms for a jury to consider in this case during guilt or innocence. Guilty, guilty but mentally ill, not guilty by reason of insanity or not guilty all together. Those are four potential verdict forms that the jury will consider in this case. Can you give meaningful consideration to each of those four potential verdict forms presuming I give adequate and sufficient instructions about how to consider aspects of those verdicts, evaluate, meaningful consider all of the evidence testified to in that phase of the trial and be fair to both sides?
JUROR: Yes, I can.
THE COURT: You can do that?
JUROR: Yes, I can.
THE COURT: Presuming a verdict of not guilty or not guilty by reason of insanity is found the case would end, just stops right there, it goes no further. The State meets its burden of proving the murder beyond a reasonable doubt, unanimously jurors find a verdict of guilty, we go to phase two now. So, the first trial is over with, we go into a second trial. The same jury, basically the same facts but different determinations for the jury. In phase two, now the State has got to prove an aggravating factor beyond a reasonable doubt unanimously to the jury in order to ask the jury to please impose a sentence of death. Five aggravating factors I am going to name. Murder of a police, murder of a child, rape of murder, kidnapping of murder, multiple murders. The State has got to prove to the jury beyond a reasonable doubt one of those aggravating factors in order to be able to ask a jury, please consider imposing the death penalty. Do you understand that?
JUROR: Yes, I do.
THE COURT: Now, also during that phase, the punishment phase, mitigating facts and circumstances are presented by the Defense. Mitigating facts and circumstances are reasons to impose a life sentence. Aggravating facts are reasons to impose to death penalty. Potential mitigating factors that are allowed in our statute 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 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 crime. Those are statutory mitigators that the Defense can present on and jury's can consider as reasons to impose life. Other, not listed in the statue, other reasons can include Mr. Jones' childhood, maybe he was abused as a child, perhaps came from a broken home. Anything that the Defense presents that you will consider a reason to impose life as a mitigating factor. Jury's consider mitigating factors, they are not required to be proved, they are considered. Does that make sense?
JUROR: Yes, it does.
THE COURT: Can you give meaningful consideration to the testimony offered by the State regarding aggravating factors, understanding that they must prove that unanimously beyond a reasonable doubt, an aggravating factor, at least one. Also consider at the same time mitigating factors that the Defense presents on in reaching a verdict for the punishment. Can you do that?
JUROR: Yes, I can.
THE COURT: Can you do that being fair to the State?
JUROR: Yes, I can.
THE COURT: And to the Defense?
JUROR: Yes, I can.
THE COURT: And consider my instructions also in evaluating all of that evidence and testimony?
JUROR: Absolutely.
THE COURT: Do you have any moral, personal, religious belief which would prevent you from imposing a sentence of death?
JUROR: No, I do not.
THE COURT: Do you have any religious, personal or moral belief which would prevent you from imposing a life without parole sentence?
JUROR: I do not.
THE COURT: You know any reason whatsoever you can't be fair to both sides?
JUROR: No, I do not.
THE COURT: Okay.
THE COURT: Mr. McGuire.
EXAMINATION By Mr. McGuire:
BILL MCGUIRE: Good afternoon, Mr. Lee.
JUROR: Good afternoon, how are you.
BILL MCGUIRE: I am good. My name is Bill, Bill McGuire and I am one of the lawyers in the case. This is the time the Judge gives us to ask you questions about your views of the death penalty from the offense of murder.
JUROR: Yes, sir.
BILL MCGUIRE: And to get started I want to ask you to imagine that you have been the Governor, you have been placed in the position of Governor of South Carolina for a day and there is a Bill on your desk and you can sign it and would keep the death penalty. And there is another Bill you could sign it and we wouldn't have the death penalty any longer. Which one would you sign?
JUROR: I would say that I would go with the death penalty.
BILL MCGUIRE: And that implies that you hold some personal views that there is, the death penalty serves as a purpose?
JUROR: Yes, I do.
BILL MCGUIRE: And tell me about that.
JUROR: I would think that, I believe for an eye for an eye.
BILL MCGUIRE: Eye for an eye, taking an innocent life you forfeit yours.
JUROR: More or less, yes sir.
BILL MCGUIRE: And what I want to do, again, so we can talk about this in a concrete way, less abstract. I want to, in your mind I want to see, I want you to put yourself on a jury. And it is a murder case, not necessarily this case but you and eleven other people are on a case, it is a murder case where all the evidence points to guilt, the person did it, meant to do it, murder, took an innocent life. It is not an accident, they knew right from wrong, they knew what they were doing and took the lives of multiple innocent children under eleven. Without knowing more what are your thoughts about the death penalty for that intentional killing?
JUROR: Could you repeat that. I am sorry.
BILL MCGUIRE: I won't go through all of that. I want you to put yourself in a position, you and eleven other people found a Defendant guilty, meant to do it, not an accident, intentional with an evil heart, took the lives of multiple children under eleven. Without going into specifics, just knowing that what are your thoughts about the death penalty for that kind of intentional killing.
SUZANNE MAYES: Objection, Your Honor, the standard would be no matter what the facts are.
THE COURT: All right.
BILL MCGUIRE: I have worked it exactly the way--
THE COURT: You have worded it different both times. Without knowing more, without considering anything else. That is semantics.
BILL MCGUIRE: Right.
JUROR: So in other words, I don't know what the other side had said?
THE COURT: That's correct.
BILL MCGUIRE: Right, exactly.
JUROR: No, I would have to hear what the other side would have to say before I could seek the death penalty.
BILL MCGUIRE: When you say the other side, what side are you talking about?
JUROR: I believe it is the Defendant, is that correct, yes.
BILL MCGUIRE: Right. And a lot of people might say, you know, without knowing more, the way I phrased that question, I start out on the death penalty and I can maybe be swayed away from it if the other side presented some things.
THE COURT: That is not a fair question. Rephrase that, that is not what his answer was. Rephrase it equally.
BILL MCGUIRE: Okay.
BILL MCGUIRE: I want to go back to that case we were talking about when I had in your mind, you were on the jury. The person is guilty, guilty, killed innocent children.
THE COURT: That has been asked and answered. Ask your question like you normally do.
BILL MCGUIRE: That is what I am doing. I always ask this question, Judge.
BILL MCGUIRE: Could the life sentence be appropriate to punish that kind of killing?
JUROR: I think depending what I was, information I would receive from the Defendant's side, what circumstances. Yes, what else, it depends on what else, I would have to hear both sides of the story before I would be able to make up my mind, what would be fair punishment for that, if that is what you are asking.
BILL MCGUIRE: Sure, that is what I am asking. And remember there are no right or wrong answers. Whatever you say is correct. When it comes to fixing punishment for that kind of case we were just talking about, killing innocent children, deliberately killing innocent children, is the background of the killer relevant to you in fixing that punishment?
JUROR: Yes, it is. Yes, it is.
BILL MCGUIRE: Okay. So the Judge talked to you a little bit about potential verdicts. And one of them is not guilty by reason of insanity. And that means that the Defendant is not denying committing the act but is claiming, because he has got some mental defect or disease that he couldn't tell or appreciate right from wrong, morally or legally. Does that make sense?
JUROR: Yes, it does.
BILL MCGUIRE: Is that kind of your understanding?
JUROR: Yes, I understand that.
BILL MCGUIRE: Okay. And the Judge told you if the jury votes not guilty by reason of insanity the jury does not get the opportunity to sentence, to go into a sentencing or punishment phase because the trial would just end with not guilty of reason of insanity.
JUROR: Correct.
BILL MCGUIRE: Some people might say, you know what, not guilty by reason of insanity, that is kind of a copout defense, excuse defense. I don't really want to consider it. What do you think about that?
JUROR: I think there are a lot of different sides to each and every story and they will have to be told and I feel like until those are brought out you really can't make a fair judgment on what would be a good punishment.
BILL MCGUIRE: Okay. Now I want to take you to the sentencing phase, the second phase, the punishment phase if we get there. I want to talk to you about that phase. Okay. If we get there the rules would be that each individual Juror gets to make their decision as to whether another fellow human being lives or dies. It is each individual Juror makes their own individual decision about that. Does that sound fair?
JUROR: Yes, it does.
BILL MCGUIRE: And each individual Juror can have different reasons to vote for the life penalty if they so choose. They don't have to be the same reason, the jury doesn't have to agree that that reason is valid.
JUROR: Okay.
BILL MCGUIRE: Does that sound fair?
JUROR: Yes.
BILL MCGUIRE: That everybody can have a different reason to vote for life?
JUROR: Absolutely.
BILL MCGUIRE: Okay. The way that could work out is that somebody right here could say, my reason, I saw some mental health evidence and I think the guy has got a broken mind and I am not going to kill a person with a broken mind.
SUZANNE MAYES: Objection at this point, Your Honor, I believe it has been asked and answered. His response was every Juror can decide for themself.
BILL MCGUIRE: Are we going to change things?
THE COURT: I understand your objection, Ms. Mayes, I am going to allow him to ask that.
BILL MCGUIRE: I appreciate that, Judge, thank you.
BILL MCGUIRE: So one Juror here could say, I saw mental health issues, I am not going to vote for death for somebody with a broken mind. That is my reason. Somebody else down the line could say, I saw the Defendant having an enduring relationship with his father. There was a spark of humanity there and that resonated with that Juror. And they can have different reasons and they don't even have to agree on it. Does that sound fair?
JUROR: Yes, definitely.
BILL MCGUIRE: Okay. And the Judge would tell the jury at the end of the case that each individual Juror can vote for the life penalty, life without parole for any reason, no reason or mercy alone. Does that sound fair?
JUROR: Yes.
BILL MCGUIRE: And that means that some Juror could say, I listened to everything but I can't even put into words a reason to support my position. I just, my position is, my individual moral judgment is that I want to vote for the life penalty. I don't want to vote to kill another human being and I don't have any reason for it. Could you let them have that and respect that position?
JUROR: Definitely, they are entitled to their own opinion.
BILL MCGUIRE: Right, exactly. And the rules of court and the law, the Juror oath requires an individual Juror, if they reach a conscientiously held position, say for the life penalty, life without parole, for them to change that, just to throw in with the majority, that is actually against the Juror oath and it is wrong, it is against the rules of court. Did you know that?
JUROR: I didn't know that for a fact but I--
BILL MCGUIRE: Does it sound right?
JUROR: Yes, you really can't be forced into changing your mind.
BILL MCGUIRE: Right. And if you were on the jury, in the jury room in deliberations and we expect reasonable deliberations and civil discourse?
JUROR: Yes.
BILL MCGUIRE: But if you saw somebody and it was clear to you that they had reached their individual moral judgment, it would harm their conscience to change that position but others were trying to force this person, coerce them, bully them out of it just to get them to join the majority could you stop that?
JUROR: I would do what I could, I think that would be wrong.
BILL MCGUIRE: That is, it would be wrong. You are right, I agree with you. And one of the things you could do is write a note out to the Judge and say, Judge, we were told bully is wrong and forcing people to change their mind is wrong. Could you come back here and fix this. You could write a note out to the Judge?
JUROR: I would have no problem with that.
BILL MCGUIRE: Okay. And in South Carolina, if the jury were to vote, I tell you what, my last question for you is, when you came to the Court House across the street, the big room, did you recognize any other jurors?
JUROR: No.
BILL MCGUIRE: Just by yourself?
JUROR: I was all by myself.
BILL MCGUIRE: All right. That is all I have, thank you.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon, Mr. Lee.
JUROR: Good afternoon, Ma'am, how are you.
SUZANNE MAYES: Okay. My name is Suzanne Mayes. I am one of the prosecuting attorneys in this case and we represent the State.
JUROR: Yes, ma'am.
SUZANNE MAYES: Just have a few questions for you on follow-up. You were listening very attentively to the Judge but just want to cover again that in a second phase of the trial where punishment would potentially be determined. There would be two options, life without parole and the death penalty?
JUROR: Yes, ma'am.
SUZANNE MAYES: And you would be able to consider both of those options?
JUROR: Yes, ma'am.
SUZANNE MAYES: And if after you heard all of the evidence you felt that the death penalty was appropriate, after hearing all of the mitigating factors and all of the aggravating factors could you vote for the death penalty?
JUROR: Yes, I would. Yes, I could.
SUZANNE MAYES: And by the same token--
THE COURT: Ms. Mayes, wait a second. I need some order in the court. It is a little bit distracting in the back of the courtroom. Ms. Holston is really struggling. This fan makes it a little harder to hear. So, I am sorry for interrupting. Please rephrase your question.
SUZANNE MAYES: If after you heard all of the evidence and all of the mitigating factors, you determined that life without parole was the appropriate sentence would you also be able to return a verdict of life without parole?
JUROR: Yes, I would.
SUZANNE MAYES: And with that in mind just wanted to ask a little bit more about that to follow-up on some of the questions that you got about the mitigating factors. Did you know that even if mitigating factors are found to exist you could still vote for the death penalty?
JUROR: Yes, I could.
SUZANNE MAYES: And one of the questions you got was about consideration of a not guilty by reason of insanity, a defense or potential verdict along with three other verdicts. Guilty but mentally ill, guilty and then not guilty.
JUROR: Right.
SUZANNE MAYES: If there is testimony offered by the State to contradict any type of mental health or insanity defense would you also be open to, open to listening to that evidence?
JUROR: Yes, I would.
SUZANNE MAYES: And weighing or considering all of the evidence?
JUROR: Definitely I would.
SUZANNE MAYES: And you have got some questions about once you are in the jury room and what may ultimately take place there. Are you, did you know that jurors are entitled to discourse and deliberate with thoughtful deliberation and discussion?
JUROR: Yes, I did know.
SUZANNE MAYES: But once doesn't necessarily have to have their mind made up as soon as they get in the jury room?
JUROR: Correct.
SUZANNE MAYES: Thank you, Mr. Lee.
JUROR: Yes Ma'am, thank you.
THE COURT: Anything from the Defense on Mr. Lee?
BILL MCGUIRE: Yes, I have got something for the Court.
THE COURT: Mr. Lee, step out real quick. I have got to hear from both lawyers and I will have you back in here. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. McGuire.
BILL MCGUIRE: Your Honor, move to strike for cause. Mr. Lee indicated that he was an eye for an eye kind of person. And when I put that back on him by saying, so you take an innocent life you forfeit yours and his response was always. I believe that would disqualify him.
THE COURT: Ms. Mayes.
SUZANNE MAYES: Your Honor, he is qualified under the law and that he made it clear that he would certainly consider a life sentence, he is capable of rendering a life sentence and evaluating all mitigating factors that may be offered during the course of the case.
THE COURT: I heard the answer, the totality of all the questions, he seemed very comfortable type three, want to hear everything. Said several times, I would have to hear both sides, there is always two sides before I made up my mind. He said that repeatedly. So I, and he answered other questions, would he consider the background. Absolutely. Would you consider the mental issues. Absolutely. Everybody has a story to them, something like that. Bring him back in, he is qualified.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Lee, the Court found you qualified as a Juror. What I want you to do, starting tonight check the website, where you were checking about the panels the directions are under qualified jurors. So it will say please check back tomorrow night or please report back to the Lexington Court House at such and such a time. That is what I want you to do. Until you report back and then after you select a jury, don't talk about the case, don't let anyone talk to you about the case, don't do any independent research about the case, don't let anyone, anything influence you before coming back. I don't want you to be influenced by something outside of the courtroom. I want you to consider and be influenced by what is in the courtroom. Very well, thank you.
JUROR: Thank you for the opportunity. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring 285 in. (Whereupon, Juror 285, Taylor Medlin entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: You are Mr. Medlin?
JUROR: Yes.
THE COURT: I need you to pull up close and say and spell your name so that Ms. Holston can determine if you are speaking loud enough.
JUROR: Taylor Medlin. T-A-Y-L-O-R, M-E-D-L-I-N.
THE COURT: Mr. Medlin, I asked you Monday to take an oath and not to talk about the case. Have you talked about the case since last Monday?
JUROR: No.
THE COURT: Anybody talk to you about the case since last Monday?
JUROR: They tried but--
THE COURT: What did you do?
JUROR: Just kind of ignored it.
THE COURT: Fair enough. Now there has been publicity in the case, social media, regular media, television media, news media. I actually read five indictments to you in the courtroom. That is also information that you have heard. Any information you received four years ago to today, anything whatsoever, has that information, whatever it is including my information caused you to form an opinion about what happened in this case?
JUROR: No.
THE COURT: You haven't formed an opinion?
JUROR: No.
THE COURT: I asked you about your calendar, obligations, work wise, everything. Starting Monday to the end of May, early June, what have you got?
JUROR: My schedule comes out weekly but I mean, I work like 50 hours a week if not more.
THE COURT: Okay. So work is the only imposition on your schedule?
JUROR: Yes.
THE COURT: Unfortunately that is not a reason to be excused because most people have jobs except for retirees. That imposition, I understand it but it is not, the General Assembly does not allow me to excuse you because of hard work. I have to have civic duty and a little bit of inconvenience to jurors and I will try to minimize that inconvenience. So nothing else prepaid, no trips coming up or anything?
JUROR: No.
THE COURT: Did you read my list of potential jurors?
JUROR: I did.
THE COURT: Do you know any of the jurors?
JUROR: No.
THE COURT: Also, testimony in this case will include testimony about the death of children. It is going to be tough testimony to hear, the lawyers have told me, Judge, this is graphic, unpleasant testimony, yet it is the evidence that is going to be presented in the case. So, would testimony regarding that difficult type subject matter be, create an issue for you personally or anything that has ever happened to you that you could not receive and consider graphic evidence and not still be a fair and impartial Juror?
JUROR: Sir, are you asking me if I can handle it?
THE COURT: Yes.
JUROR: Oh, yes.
THE COURT: Some people, I lost a brother or child or something and, in a car wreck and injuries to children give me a flashback. You can handle it?
JUROR: Yes.
THE COURT: Won't be, certainly won't be easy but you will be able to manage it and consider it and be fair and impartial to both sides?
JUROR: Yes.
THE COURT: I gave you instructions on the law moments ago, I gave you a thumbnail sketch of the two phase process in a Capital case. Okay.
JUROR: Yes.
THE COURT: Did you understand my instructions?
JUROR: Mostly.
THE COURT: A little bit difficult because most people don't hear all of the aspects of that law. It is not on TV like that, is it?
JUROR: No.
THE COURT: This is real stuff. This is South Carolina law as I know it. And that is what Judges do, is they instruct the jury so here is how you consider what you have just been told. And it moves a lot slower in real life than it does on television. Okay. More aspects of law to instruct on and that is kind what I am going to make certain you are going to be able to do, is follow the law as instructed while considering what has been presented to you. Okay. Now, my instructions thus far, I gave you a typical types of jurors in a Capital case. My typical types of potential jurors include the presumption that the State has met its burden of proving the murder. So we are already getting right at starting stage two. Understand the State has got to prove an aggravating factor and the jury considers mitigating factors. Can you identify yourself at that point, assuming the murder has been proven by the State as being one of those three types of jurors?
JUROR: Three.
THE COURT: Type three. What do you understand that to mean?
JUROR: That depending on the facts presented at the end, even after it has been like proven that, it will change what I might decide.
THE COURT: So you want to hear everything?
JUROR: Yes.
THE COURT: Good and bad?
JUROR: Yes.
THE COURT: I am going to wait for you to answer each time because she is has got to take it down. Type three. I am going to go back to phase one. In phase one the State has the responsibility or duty, burden to prove the murder charge, all elements, killing of another, malice aforethought. They have got to prove that beyond a reasonable doubt in order to convict Mr. Jones. He is presumed innocent sitting right there. That presumption stays with him all the way through the trial until the jury returns a verdict unanimously, accepting the State has met its burden of proof. Do you understand?
JUROR: Yes.
THE COURT: During that phase also, the guilt or innocence phase. Defenses can present defense. All right. I am going to name off multiple statutory defenses and tell you, I will instruct you on the aspects of which ones may apply after the testimony has been received because some of these may or may not apply, most of them probably won't. But some of them could. I want to make certain you can apply and accept my instructions on these. 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 afforded to everyone. Now depending on how the testimony comes into the trial one of those may come into play, at least one of them may come into play and I will instruct the jury on particulars of considering that defense. Now, can you be a fair and impartial Juror, considering my instructions on the State's burden of proving its case beyond a reasonable doubt and any relevant defenses which the evidence may support, be a fair and impartial and meaningfully considering all the evidence and facts in this case?
JUROR: Yes.
THE COURT: Can you be fair to both sides?
JUROR: Yes.
THE COURT: Both the State and the Defense?
JUROR: Yes.
THE COURT: All right. In this case one defense has already been claimed by Mr. Jones. He has entered a plea already of not guilty by reason of insanity. By that plea four potential verdicts could be considered by the jury. Guilty, guilty but mentally ill, not guilty by reason of insanity, not guilty whatsoever. Those are four potential verdicts the jury could be tasked with trying to decide. Can you be fair and impartial to both sides, can you also follow my instructions on the aspects of those four potential verdicts and meaningfully consider all four verdicts with the facts and circumstances presented in the trial. Can you do that?
JUROR: Yes.
THE COURT: Can you be fair to the State in doing so?
JUROR: Yes.
THE COURT: Can you be fair to the Defense in doing so?
JUROR: Yes.
THE COURT: If the State does not meet its burden of proof or the jury has a verdict of not guilty by reason of insanity the case would end there, over with. If the State meets its burden of proving the murder beyond a reasonable doubt the case goes into phase two, the punishment phase. Okay?
JUROR: Okay.
THE COURT: In phase two another thing has to happen. The State has to then prove in that second trial, it is like back to back trials, the same jury and the same folks involved. The State has to prove in the second phase an aggravating factor, aggravating circumstance. I am going to name five. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder, multiple murders. Those are aggravating factors. The State must prove at least one of those beyond a reasonable doubt in order to ask a jury to return a verdict, punishment of the death penalty. Okay. Now, in this phase the jury decides the punishment. There are two choices, death or life, nothing else, no in between, no other options, life or death. Those are your options. During this portion of the trial the jury also considers any mitigating factors that it has been presented during a trial. I will name off some mitigating factors.
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 minor. The Defendant acted under duress or under the domination of another person. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The age or mentality of the Defendant at the time of the crime. The Defendant was provoked by the victim in committing the murder. The Defendant was below the age of 18 at the time of the crime. The Defendant had mental retardation at the time of the crime. Those are statutory factors that jury's can consider and the Defendant may present on.
The jury can use, make a finding for life without parole, that is their reason. Other reasons can include and are not listed in that statute. Mr. Jones' getting raised up, maybe came from a broken home, perhaps he had an abusive childhood. Any aspect of his life can be considered by a Juror as a mitigating factor, jury's can use that to say, I want to vote for life. Those are the reasons. Can you give meaningful consideration to the State's responsibility, duty of the burden of proving the aggravating factor unanimously beyond a reasonable doubt and consider all the mitigating testimony that is presented during the punishment phase and act as a fair and impartial Juror in this trial?
JUROR: Yes.
THE COURT: And consideration of my instructions as well? Can you do that?
JUROR: Yes.
THE COURT: You understand that in the punishment phase the death penalty is not, is not automatic?
JUROR: Yes.
THE COURT: You have two choices, life or death. Do you have any religious, moral or personal belief that you could not impose a death penalty if the facts support it?
JUROR: No.
THE COURT: Do you have any religious, personal or moral belief to impose a life without parole sentence if the facts and mitigation circumstances support it?
JUROR: No, I don't have any religious beliefs.
THE COURT: You can do either way, you can find either verdict?
JUROR: Yes.
THE COURT: I am sorry, either sentence?
JUROR: Yes.
THE COURT: There are two sentences, the verdict for the imposition for either sentence.
JUROR: Yes.
THE COURT: You haven't made up your mind yet?
JUROR: No.
THE COURT: Okay.
THE COURT: Mr. Madsen.
EXAMINATION By Mr. Madsen:
ROBERT MADSEN: Mr. Medlin, how are you doing this afternoon?
JUROR: Good.
ROBERT MADSEN: My name is Rod Madsen and I am one of Tim's lawyers. The Judge kind of went over with you the law and kind of being fair and impartial. What I want to talk with you about is just your feelings. Okay. No right or wrong answers, just kind of what you feel. When you came over to the old Court House with the jury, did you know any of those other jurors?
JUROR: I mean, some of them I went to school with but I didn't talk to them or anything.
ROBERT MADSEN: And so can you tell me who they were?
JUROR: I don't really know their names honestly, I just recognized their faces.
ROBERT MADSEN: Okay. And I guess will be, if you ended up on a jury with them, if they had a different opinion than yours because of that relationship would you abandon with your opinion and go with them?
JUROR: No.
ROBERT MADSEN: Okay. You understand why I have got to ask?
JUROR: Yes.
ROBERT MADSEN: Can you just kind of tell me your thoughts of the death penalty?
JUROR: Well, I mean, I would say I agree with it but that would be if you could, one-hundred percent prove what happened happened. Because if it comes back later that it didn't really happen you can't take back death.
ROBERT MADSEN: Okay. And so, I guess if I make you Governor of South Carolina for a day and I put two Bills in front of you, one to have the death penalty and one to not have the death penalty. Which one would you sign?
JUROR: Do you mean just in general?
ROBERT MADSEN: Just in general.
JUROR: I mean, would probably keep it just for those specific cases.
ROBERT MADSEN: The Judge has told you that Tim has plead not guilty by reason of insanity. And do you understand that means someone saying, hey, I did it, I committed the acts but because of a mental disease or defect I cannot appreciate moral or, the moral or legal wrongfulness of my actions. Do you understand that?
JUROR: Yes.
ROBERT MADSEN: And so some people would say, when someone says I did it and I can't just appreciate the moral or legal wrongfulness, that is just something that is not on the table for me. As the Judge told you, the trial would stop. You wouldn't get to a second sentencing phase. And my question is, is that you?
JUROR: Wait, what do you mean?
ROBERT MADSEN: Like I said. Some people would say, not guilty by reason of insanity because someone is admitting, I did the acts. I just didn't, I can't appreciate the moral or the legal wrongfulness of those actions. Some people would say, you know what, that is not a verdict that I could give meaningful consideration to. And my question is, is that you?
JUROR: I guess it would depend on the situation. But I would be really critical at least for at first on it.
ROBERT MADSEN: What do you mean by that?
JUROR: Like, I guess it would have to be something, you would have to define insanity in a more specific sense like does that mean you are psychotic or that, I don't know, it is too broad for my, for me to like--
THE COURT: You want me to give him the definition?
ROBERT MADSEN: Sure.
ROBERT MADSEN: The Judge can give you the legal definition.
THE COURT: This will be done in the trial too. The definition of a person who could, I am defining insanity. At the time of the commission of the act constituting the offense the Defendant, as a result of a mental disease or defect, lack the capacity to distinguish moral to legal right from moral or legal wrong or to recognize, particular that charge, as either mortally or legally wrong. Okay.
JUROR: Okay. I could consider that.
ROBERT MADSEN: So, that answers that question?
JUROR: I could consider doing that.
ROBERT MADSEN: So let me take you to, let me kind of put you on a jury and I am not talking about this case. But let me just kind of put you on a jury and you and eleven other jurors have found this person guilty. No doubt they are guilty. They know the difference between right and wrong, there is no kind of defense, there is no kind of excuse or justification. I mean, you know it is that person. Are you with me. And my question to you, you have got to say, yes.
JUROR: Yes.
ROBERT MADSEN: She has to take all of that down. So my question to you is, when you know you have got the right guy and that person has intentionally and maliciously killed multiple innocent children, without hearing anything else what are your thoughts as the death penalty as being the appropriate punishment for that guilty murderer of multiple innocent children?
JUROR: Well, just taking that I would say, yes, that the death penalty.
ROBERT MADSEN: And so in that situation, without hearing anything else, the, a sentence of life without parole is just, that is just not on the table for you, that is not serious enough. I mean, one-hundred percent, we know we have got the right person, they are definitely guilty.
SHAWN GRAHAM: Your Honor, objection.
THE COURT: Rephrase that question, y'all are getting back in that same area we were getting into a minute ago.
ROBERT MADSEN: So my question to you, in that situation where that person is definitely guilty, they knew what they were doing, right and wrong. My question from your last one, life without parole sentence to you is just not on the table for you?
JUROR: No, probably not.
ROBERT MADSEN: And that is something, a belief that you just, like I said, there is no right or wrong answer, just a belief that you kind of hold internally?
JUROR: Yes.
ROBERT MADSEN: And there is nothing that you could hear about that person's upbringing or life or anything like that, anything like that that was unrelated, the crime wouldn't make any difference to you if those acts were proven one-hundred percent.
SHAWN GRAHAM: Objection, Your Honor.
ROBERT MADSEN: Beyond a--
THE COURT: It is very much a staking question now. You are staking him out, rephrase that.
ROBERT MADSEN: You wouldn't want to hear anything about their background or upbringing or--
THE COURT: About would you listen. Y'all are really trapping today.
ROBERT MADSEN: Would you want to hear anything about--
SHAWN GRAHAM: Your Honor--
THE COURT: Describe the balanced question, this question has been coming before a lot of jurors in different forms. They rephrase them and asking questions sometimes they get worded different. Ask a balanced question please, Mr. Madsen, on that end rather than the unbalanced one.
ROBERT MADSEN: So in that situation where you found that person guilty of murder of, you have said death penalty for you, life without parole wasn't sufficient. And my question was, would you not want to hear character or background?
JUROR: No matter really what you have done, once you, in this situation that you are describing. Once you have brutally murdered multiple people and you know, quote, knew it was right or wrong, none of that matters anymore because the matter of upbringing, if you knew it was wrong and you still did it then here we are.
ROBERT MADSEN: I understand and a lot of people agree with that. And that is something that is just, that is just the way you feel?
JUROR: Yes.
ROBERT MADSEN: You understand, well, let me ask you this. There is, the decision on whether or not to give someone the death penalty, that is called kind of an, on the penalty it is called an individual moral judgment. Have you ever heard that before?
JUROR: Yes.
ROBERT MADSEN: And the best way it has been described to me is, you made an individual moral judgment on your faith.
JUROR: Well, lack of faith.
ROBERT MADSEN: Or lack of faith. And someone else might have made something a different individual moral judgment for their faith. And you would expect them to respect your individual moral judgment on that, correct?
JUROR: It wouldn't really matter to me, think what you want.
ROBERT MADSEN: But at the same time, if they had something different you would respect their individual moral judgment on their faith, wouldn't you?
JUROR: As long as it didn't affect mine.
ROBERT MADSEN: Sure. And so if you were to get onto the jury, the decision on whether or not to put someone to death is called an individual moral judgment. And while back in the jury room there would be back and forth, you understand that it would be inappropriate for someone to give up their individual moral judgment to just kind of go along with the majority.
JUROR: Right.
ROBERT MADSEN: And if you were back there and you saw someone browbeating someone or bullying them out of their individual moral judgment would you say something to them?
JUROR: Most likely.
ROBERT MADSEN: And you understand that if you saw that that, the law requires or you are allowed to write a note to the Judge and say, Judge, civility has left the room, this is getting out of hand, can you step in.
JUROR: Yes.
ROBERT MADSEN: You could write a note and do that. And would you do that if you saw that?
JUROR: Again, I can't really say exactly what I would do but I suppose if it got to that bad of a point, because if something like that was needed to be done.
ROBERT MADSEN: Judge, subject to your prior limitations.
THE COURT: Mr. Graham.
EXAMINATION By Mr. Graham:
SHAWN GRAHAM: Good afternoon, Mr. Medlin.
JUROR: Good afternoon.
SHAWN GRAHAM: My name is Shawn Graham, I am one of the prosecutors for the State. I am just going to follow-up on a couple of your answers that you gave. You understand that there are two phases or two potential phases in a death penalty trial?
JUROR: Right.
SHAWN GRAHAM: So the first one is the guilt or innocence and not guilty by reason of insanity, guilty but mentally ill, all of that. You don't even get to consider punishment until you first start there. Do you understand?
JUROR: Yes.
SHAWN GRAHAM: Okay. The second phase, if you find a guilty verdict, you and the rest of the jurors unanimously found a guilty verdict you move into the second phase. Okay. In that phase the State, before you can even consider punishment the State has to prove an aggravating factor which in this case is a murder of a child under the age of eleven or murder of multiple people. Okay?
JUROR: Yes.
SHAWN GRAHAM: And once the jury considers that evidence and if they unanimously find beyond a reasonable doubt that one of those factors exist then and only then can they consider the death penalty. Okay.
JUROR: I understand.
SHAWN GRAHAM: So at that point the State would present aggravating circumstances, things that may make the crime worse or things about the characteristics of the Defendant. On the other side the Defense would produce what is called mitigation evidence or things that they would want you to consider in giving a life sentence. Okay, does that make sense?
JUROR: Yes.
SHAWN GRAHAM: After all of that evidence was presented, would you need to hear all of that evidence, let me ask you that question.
JUROR: Yes.
SHAWN GRAHAM: Or would you not need to hear it and you automatically know what you were going to do just because, you as a Juror, had already convicted him of the murder, in this case of multiple children. Would you need to hear anything more or at that point do you have your decision made on what the punishment should be?
JUROR: No, I would want to hear it all, I would want to hear everything possible.
SHAWN GRAHAM: You would want to hear everything?
JUROR: If I am going to make a decision I need to have every fact there.
SHAWN GRAHAM: And why would you want to hear everything?
JUROR: To make sure I make the most current decision, logically.
SHAWN GRAHAM: So you would or would not automatically reach a decision on what you would do with the punishment?
JUROR: In a real life situation, no. But in his, like, made up situation where all the facts were given to me in that small amount then, yes, I do. But in a real life situation, no, I would need to hear all the facts.
SHAWN GRAHAM: You would agree with me we are not talking about a real life situation, right?
JUROR: Correct.
SHAWN GRAHAM: So in a case where somebody is convicted beyond a reasonable doubt, they are guilty of the murder of multiple children, you would want to hear everything, yes?
JUROR: And this is not with insanity or anything else.
SHAWN GRAHAM: To get to this point you have already heard insanity and rejected it. So you would have heard that in the guilt phase or the first phase. You have already heard any type of defense they were going to offer as to him not knowing legal right from wrong. To go to the punishment you are already past phase. So my question is and following up on our conversation is, once you and the other jurors determine that he was guilty and you move to the punishment part would you need to hear anything more or you automatically know what you are going to do?
JUROR: I would probably need to hear more at that point.
SHAWN GRAHAM: You would want to hear the good and the bad?
JUROR: Yes.
SHAWN GRAHAM: Based on what you heard could you impose a life without parole if you thought it was appropriate?
JUROR: Yes.
SHAWN GRAHAM: And that is something that you would meaningful consider?
JUROR: Yes.
SHAWN GRAHAM: If on the other hand you thought death was the appropriate sentence along with the twelve other jurors, could you impose a death sentence?
JUROR: Yes.
SHAWN GRAHAM: Thank you, Mr. Medlin.
THE COURT: Anything on Mr. Medlin?
ROBERT MADSEN: Yes, sir.
THE COURT: Mr. Medlin, step out real quick and I will take up something with the lawyers and I will have you right back. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Mr. Madsen.
ROBERT MADSEN: Judge, we believe he should be excluded, he is substantially impaired. When I went through and asked him category specific, as we had done in the past, he had said for him if that is, you know, basically if he knows that that person is guilty beyond a reasonable doubt it was death for him. He said that life without parole was never sufficient for him. Mr. Graham's questions were, if you found this, you know, if you found this appropriate would you. I think under Morgan versus Illinois he is impaired. Also I think he is impaired as a burden shift and he is mitigation impaired.
THE COURT: Mr. Graham.
SHAWN GRAHAM: Judge, that is why we have continued to object to the line of questioning. Morgan vs. Illinois is spelled out what that Court felt was appropriate. They have gone way beyond that and we keep walking into situations, for lack of a better word, they are not explaining and they are tricking people about how the process works. And then they get to question, they get an answer and then they try to kick a Juror. I don't think that he understood what Mr. Madsen was actually asking or trying to do. He answered his questions, he answered mine. I don't think I tried to trick him. I explained the process and how it worked. And I actually asked some, the cart before the horse if you want to put it, question asking him, what do you want to do. And on his own he said he wanted to hear everything.
THE COURT: Well, I heard him answer one of your questions that, yes, I want to hear everything. And the question that Mr. Madsen asked him didn't include those factors. I mean he distinguished--
SHAWN GRAHAM: Correct. They are not asking them, would you automatically give death and not need to hear any other facts. And that is what they are not asking every time, they are not giving, and they can say they are not looking to be fair and I understand what they are trying to do. But it is not fair to the Juror and then to strike them because they are not giving a proper question.
THE COURT: All right.
SHAWN GRAHAM: He was qualified in the totality, Your Honor.
THE COURT: I think he was too. The totality of everything, particularly his distinguishing your question and characterizing Mr. Madsen's questions is limiting, that he was confused as to what facts you had, what facts you didn't have. The two step process is so new, and he is 20 years old. I think clearly, the totality thing, he understands he wants to hear everything. The couched questions for just that. I find him qualified on the totality of all of the questions he answered particularly him distinguishing the two types of questions being asked. He recognized it after hearing the question asked in the balance fashioned as opposed to the, what we described all along as the trapping question. So I find him qualified. Bring him back in.
(Whereupon, the Juror entered the courtroom.)
THE COURT: Mr. Medlin, the Court considered all of your answers and responses to your questionnaire and whatnot, I find you to be qualified. You are not on the jury, you are a qualified Juror. What that means is you are in a pool of 50 people that could be considered to be put on the jury. That selection process of elimination are the ones who get down to the jury process which will be done sometime later. I want you to check back on the internet, the website, qualified jurors, please call back, please check back, please report on or about. It is going to give you instructions to check the internet or to come in and report as a qualified Juror. I want you to do that. Can you do that?
JUROR: Yes.
THE COURT: Okay. Additionally, do not talk about the case, you are under oath to not talk about the case, don't let anyone talk to you about the case. You are not to do any independent research, you are not to pay attention to the news accounts, publicity, social media. Stay clear of any, the information regarding this case outside the courtroom. Okay.
JUROR: Okay.
THE COURT: I will ask you that and all the other jurors, has any other information come into your possession because information is there, I don't want it to influence you on being a fair Juror. I want you to be a fair and openminded Juror when you come back just like you are right now. Can you do that?
JUROR: Yes.
THE COURT: All right. See you, check the website under qualified jurors. Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take a couple of minutes.
BOYD YOUNG: May I be heard on the record real quick?
THE COURT: Sure.
BOYD YOUNG: Your Honor, I just heard from Mr. Secor, not heard from the State about whether or not they want to be present or submit any questions for a potential interview with Ms. Turner. But my understanding is that they have been asked to do a video interview with her rather than order her to transport to South Carolina pursuant to Your Honor's order. My understanding is that that is going to take place here in about thirty minutes. If the State wants to call in or questions. And finally, Your Honor, the lunch hour yesterday and yesterday afternoon at sidebar the State had requested that the jurors be reshuffled prior to striking. And I stated to the Court a memorandum in opposition to--
THE COURT: I haven't got to that yet. I mean, you can hand it in but I haven't asked for that yet.
BOYD YOUNG: Yes, sir. I am just going to hand it up.
THE COURT: You are diligent.
BOYD YOUNG: Yes, sir.
THE COURT: Y'all are in the position, the State has got more assets but y'all got double lawyers.
BOYD YOUNG: All of theirs are carrying guns, Judge.
COURT REPORTER: We want to make this as a Court's exhibit?
BOYD YOUNG: Yes.
THE COURT: It doesn't have to be a Court's exhibit. It is a file number.
BOYD YOUNG: What are we to--
THE COURT: If you want it to be filed like that or we can do it as a Court's exhibit.
BOYD YOUNG: However you want to do it.
THE COURT: Let's do it that way. It will be filed in the Clerk's file as a motion number so and so, not as a Court's exhibit. Okay. Let's take a couple of minutes.
(Whereupon, a short break was taken.)
THE COURT: Let's bring in 377. (Whereupon, Juror 377, Victoria Schneider entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Ms. Schneider?
JUROR: Schneider.
THE COURT: Ms. Schneider, I want you to say and spell your name so that Ms. Holston can see if the mike is picking you up so everybody can hear you.
JUROR: Okay. The whole name?
THE COURT: The whole name.
JUROR: Victoria, V-I-C-T-O-R-I-A; Schneider, S-C-H-N-E-I-D-E-R.
THE COURT: Ms. Schneider, I asked you to take an oath Monday to not talk about the case. Have you talked about the case since last Monday?
JUROR: I did tell my husband that I was doing this case. I told him that I was not able to discuss it and he has been very good about not talking about it with me. I have a couple of few friends that have, suspected that I am here but they have respected my privacy and not to discuss this.
THE COURT: That would be consistent with my instructions. Most jurors have given explanations very similar to yours so you were doing just fine.
JUROR: Okay.
THE COURT: Now, there has been publicity on this case, information out there. As a matter of fact, I read the five indictments to the entire jury panel. So you have got that as information, the accusations the State is making against Mr. Jones and as he sits here he is presumed innocent. Of any information you have received to date, no matter where it came from, four years ago to right now, has that information, even from the Court, has that information caused you to form an opinion as to what happened in this case?
JUROR: Just originally when I heard the story, when this happened I was, I was horrified because I do love children. I have four step-children, I mean I have three step-children and four children. I have seven grandchildren and I am a preschool teacher so I love children. And I was horrified when I first heard about it but after that, until now and my feelings are more of, I haven't looked at the news since I have been told not to and I have just kind of taken a, just we will see what happens attitude.
THE COURT: So the reaction you had was, what you described as horrific and understandable. But you have not formed an opinion though as to what happened. You just, tragic.
JUROR: Yes, I don't know everything, I don't know the case, I don't know what happened. So, I mean, when it comes my children and my daughter is a foster mother so I fall in love with the foster children that she is taking care of and I wind up crying when they go back to mom or have to leave.
THE COURT: So you are, I think I understand your answer, I am going to ask you a different way. All of your emotions you felt because of your involvement with other children, has that caused you to form an opinion to what happened here or not?
JUROR: No because I don't know.
THE COURT: Okay. Additionally, the subject matter in this case, while we are on it, it involves children, the death of children. Subject matter is going to be presented, the lawyers have exchanged all the evidence back and forth, they know the testimony that will be presented, the evidence which will be presented, I do not. That is not my job to view the evidence, they are going to present it, the jury in court will consider it. That testimony has been described by the lawyers to me in anticipation to all of these questions to all the jurors, very graphic, unpleasant, difficult. Those are some of the words I have heard used by different attorneys as describing the evidence and the subject matter. Would that type of testimony, evidence, difficult, unpleasant, can you consider testimony on that subject matter, I am certain it is going to be unpleasant. Is it going to affect you personally such that you cannot be a fair Juror for either side?
JUROR: I have always considered myself fair because I deal with children and you have to be fair minded to deal with children. Honesty, I don't know how I would respond to that. Again, I love children, I think they are God's greatest gift to us but I can't honestly say how I would respond.
THE COURT: Okay. I think it would be important understanding your background and all the children you are involved with that that would be important to you. But you think you could receive it, consider it, be fair to both sides?
JUROR: I would definitely try, I am just that type of person dealing with children. You have to be fair minded.
THE COURT: Understandably. All right. Your upcoming schedule on the calendar commencing about Monday going through the end of the month, early June. What is on your calendar personally or professionally?
JUROR: I am still teaching pre-school. I do help with summer school so I am still working, I am employed there, I have been there for 18 years. So I am, yes, just love working there, again, with children. I do have plans for Memorial Day weekend, Thursday which is the 23rd, 24th I will be out of town. My husband and his job and it is a work fun type of situation.
THE COURT: He works for some boat maker?
JUROR: Yes. PCM, yes.
THE COURT: Those are the import boats?
JUROR: Yes.
THE COURT: Ski boats?
JUROR: Yes.
THE COURT: How would I know that?
JUROR: You must live on Lake Murray.
THE COURT: The plan, the trip, is that out of town?
JUROR: Yes.
THE COURT: Pleasure Craft is up in Chapin, isn't it?
JUROR: Yes.
THE COURT: Who is the gentleman that owns that, Joy?
COURT REPORTER: Trey Thurmond.
JUROR: Yes. He is the vice-president.
COURT REPORTER: I know them very well. This is my daughter-in-law's sister.
THE COURT: I think considering your vacation of Memorial Day I am going to excuse you, you have got the children question too. But I am going to excuse you from service just for that reason.
JUROR: Okay. Thank you.
THE COURT: I happen to know Mr. Thurmond too. That is not an issue, that is not why I am excusing you. I saw your husband works for Pleasure Craft and I am on the lake a lot. I do live on the lake. Thank you for coming in and you are free to go.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's bring in 366. (Whereupon, Juror 366, Ashley Russell entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you doing. Your name?
JUROR: Ashley Russell.
THE COURT: Ms. Russell, can you say and spell your name so Ms. Holston can pick up your name.
JUROR: Ashley Russell. A-S-H-L-E-Y, R-U-S-S-E-L-L.
THE COURT: Ms. Russell, I asked you Monday gone could you not talk about the case in any manner. Have you talked about the case with anybody?
JUROR: Yes.
THE COURT: Who have you talked with?
JUROR: My husband.
THE COURT: And what was the nature of that conversation?
JUROR: I didn't tell him about the case, he already knew what case it was because he works at the sheriffs department.
THE COURT: He is a correctional officer, isn't he?
JUROR: Yes.
THE COURT: She is, her spouse works at the detention facility here.
BOYD YOUNG: Yes, sir.
JUROR: We didn't discuss it.
THE COURT: I kind of think that is just trouble.
THE COURT: Ma'am, I am just, I am going to go out of bounds almost to try to find a fair and impartial jury. That is a very difficult place for me to put you. So I am not going to put you on a position of putting you on this jury.
JUROR: Thank you.
THE COURT: You are excused.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: All right, 469. (Whereupon, Juror 469, Candy Whisenant entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: Good afternoon, Ms. Whisenant.
JUROR: Yes, sir.
THE COURT: Did I say it right?
JUROR: You did.
THE COURT: I am going to let you say it and spell it for Ms. Holston to make certain the microphone is picking you up properly.
JUROR: It is Whisenant, W-H-I-S-E-N-A-N-T.
THE COURT: I asked you last Monday to take an oath and not talk about the case. Have you talked about the case in any manner whatsoever?
JUROR: No, sir.
THE COURT: Has anybody tried to ask you about the case in any way?
JUROR: Surprisingly, no.
THE COURT: There has been information, publicity, over the last four years and the media, social media, otherwise. I also read the indictments to you Monday. So you have information received to you in some fashion or form at least to that extend. Has any information that has come to your perusal, whatever it is, whenever it came to, has any of that information caused you to form an opinion as to what happened in this case?
JUROR: No, sir.
THE COURT: I asked you, I told you I would bring you back out here about your schedule. What have you got on your upcoming calendar commencing Monday through the end of May, early June?
JUROR: I work as a CNA. So I work second shift, 3:00 to 11:00 p.m.
THE COURT: Okay. You work for a facility?
JUROR: Rehab.
THE COURT: Okay. Now other than the inconvenience with work, you got anything on your calendar that would be impacting if you were selected as a Juror?
JUROR: No, sir.
THE COURT: Now, I am going to ask you about the subject matter in this case. This case involves allegations of murder of several children. The testimony and evidence will be in that regard describing, showing evidence, pictures, graphic evidence of children, deceased children. The lawyers have described that testimony to me preliminary as being difficult, graphic, very unpleasant. Would testimony in that subject matter make it difficult for you to be fair and impartial in this case or can you receive that type of testimony even though it is graphic and unpleasant?
JUROR: I think I can.
THE COURT: Part of the testimony is going to be graphic but there may be some pictures and exhibits and things that would be impactful to you. Can you consider those things?
JUROR: Yes, sir.
THE COURT: And be fair to both sides?
JUROR: Yes, sir.
THE COURT: Now, I gave you a preliminary instructions on the aspect of a Capital case, the two phase process, what happens. The State goes first, presents on guilt of evidence. The State has got to prove guilt beyond a reasonable doubt first in order to get to phase two. I handed out a sheet describing three types of potential jurors. Those types are being identified after the guilt is found, the State presents on aggravating and the Defense presents on mitigation. Can you identify yourself?
JUROR: I would be Juror three.
THE COURT: Juror three. What does that mean to you?
JUROR: That I would listen with an open mind.
THE COURT: Okay. I am going to find, did you examine the potential witness list. Have you seen that?
JUROR: Yes, sir.
THE COURT: Do you know anybody on there?
JUROR: I know one person.
THE COURT: Who is that?
JUROR: But he, but the name is listed twice, it is listed twice it seems like. Samuel Smith, the Lexington County Sheriffs Department and then Sam Smith. But I only know one.
THE COURT: It is probably the same one but who is that to you?
JUROR: He is a friend of mine from the flea market, when I did the flea market years ago.
THE COURT: So you know him from past acquaintances as a business out at the flea market?
JUROR: Yes, sir.
THE COURT: Would your acquaintanceship, friendship, whatever you want to describe it, whatever the relationship is. Would that affect your ability to gage his credibility and still be fair to both sides?
JUROR: I would be fair.
THE COURT: Okay. I am going to go back to the phases of the case. I am going into phase one for you. In phase one the State has the burden of proving the murder beyond a reasonable doubt. Therefore they must prove the killing of another person, malice aforethought. All right. They have got to prove that beyond a reasonable doubt. They will call their witnesses on that case first because they are required to. During that portion of the case the Defense presents defenses they may be entitled to or they are claiming to prove. I am going to give you all the defenses and then come back and ask you another question. All of these may not apply at the trial but I am going to read them to you in case. 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. Now depending on how the testimony comes into the trial, some of those defenses may come into play and if the evidence or testimony could support one of those I would instruct the particular aspects of those defenses. Okay. Can you give meaningful consideration to the testimony, facts and evidence presented at trial, understanding that my instructions will include that the State bears the burden of proving Mr. Jones' guilt beyond a reasonable doubt of the murder charge as well as consider my instructions on the consideration of any testimony and evidence on the defenses and the particular aspects of that law. Can you be a fair Juror under those circumstances?
JUROR: Yes, sir.
THE COURT: And can you be fair to both the State and the Defense?
JUROR: Yes, sir.
THE COURT: Because of a defense, it has already been claimed by Mr. Jones. So he is claiming one of those defenses at least. Not guilty by reason of insanity. There are four potential verdict forms the jury may be required to try to resolve or find. Potential verdicts could include guilty, guilty but mentally ill, not guilty by reason of insanity and not guilty whatsoever. Those are the four potential verdict forms, results that the jury would have to consider. Can you give meaningful consideration to each and every one of those particular verdicts in this case considering the State's evidence, their burden of proof beyond a reasonable doubt and the aspects of any defenses that the Defense presents on. Can you give meaningful consideration to each of those four particular verdict forms?
JUROR: Yes, sir.
THE COURT: Are you going to be able to give a fair and impartial trial to both the State and the Defense?
JUROR: Yes, sir.
THE COURT: If the State fails to meet its burden or the jury finds a verdict of not guilty by reason of insanity the case would end, it would stop right there, the punishment phase or phase two would not commence. Now, there are two phases. Phase one is actually a trial in and of itself. If the State meets its burden of proving guilt beyond a reasonable doubt that result is done. The case would then start over basically and have a second trial on punishment only. That is phase two. During that phase the State is required to prove an additional aggravating factor. I am going to tell you five aggravating factors. Murder of a policeman, murder of a child, rape of murder, kidnapping of murder and multiple murders. The State is required to prove at least one of those beyond a reasonable doubt in order to be able to ask the jury to consider imposing the death penalty. Do you understand that?
JUROR: Yes, sir.
THE COURT: And during that sentencing phase jury's also are required to consider any mitigation evidence and factors. I am going to list you the statutory mitigators. Okay. 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 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 crime. Those are mitigating factors under our statute that a jury can consider as a reason to impose a life without parole. Additional things that jury's can consider, any aspect of Mr. Jones' life up to this point. Whether he had a rough childhood, came from broken home, any aspect of his life can be considered or will be a reason for a Juror to decide to impose a life without parole sentence. Now, can you be fair and impartial as a Juror, considering the State attempting to prove the aggravating factor beyond a reasonable doubt and unanimously. Can you be fair to the State in that regard?
JUROR: Yes, sir.
THE COURT: Can you also follow my instructions in considering meaningfully the evidence of mitigation which the Defense will present on, there is no burden of proving mitigating factors. The jury considers anything the Defense presents. Can you give meaningful consideration and follow my instructions on the law and be a fair and impartial Juror considering that evidence for the Defense?
JUROR: Yes, sir.
THE COURT: Can you consider all of that evidence, statutory aggravating and any mitigating factors within my instructions on the law and be fair to both sides?
JUROR: Yes, sir.
THE COURT: Do you have any personal, moral, religious belief which would prevent you from voting to impose the death penalty?
JUROR: No, sir.
THE COURT: Do you have any religious, moral or personal belief which would prevent you from voting for a life without parole sentence?
JUROR: No, sir.
THE COURT: The lawyers are going to ask you a few questions. There are no wrong answers.
THE COURT: Mr. Young.
EXAMINATION By Mr. Young:
BOYD YOUNG: Good afternoon, Ms. Whisenant.
JUROR: Hi.
BOYD YOUNG: My name is Boyd Young I am one of Tim's lawyers, okay.
JUROR: Okay.
BOYD YOUNG: Like the Judge told you, we are just going to have a conversation about your thoughts and feelings, no right or wrong answers. Okay.
JUROR: Okay.
BOYD YOUNG: Did you know anybody else who came in for jury duty on that Monday when you saw everybody in the room?
JUROR: No, sir.
BOYD YOUNG: All right. I think the Judge has told you he has read you the indictments, five counts of murder, Tim is charged with murdering his children, right?
JUROR: Yes, sir.
BOYD YOUNG: And the Judge has also told you that he has plead not guilty by reason of insanity.
JUROR: Yes, sir.
BOYD YOUNG: And that means that he says, I did the killings but because of a mental disease or defect I was unable to understand that legal or moral wrongfulness of my actions. Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: You have heard sort of not guilty by reason of insanity before?
JUROR: Yes, sir.
BOYD YOUNG: And some people think that is just an excuse, especially in a case like this, they are like, that is just a copout, that is not really something that I could give meaningful consideration for. And see myself actually voting for in a case like this, what do you think?
JUROR: At this point I really can't say because I don't know the facts. I really don't know anything about the case. I mean, I just know what I have been told about he has been accused of, you know, killing his five children.
BOYD YOUNG: Right.
JUROR: That's it.
BOYD YOUNG: And don't let me put any words in your mouth, okay.
JUROR: Okay.
BOYD YOUNG: It sounds to me like you are somebody who says that might be an appropriate verdict, not guilty by reason of insanity, if I have heard evidence that he did not understand the legal or moral wrongfulness of his actions and was satisfied that that was correct.
JUROR: That he was not in his right mind.
BOYD YOUNG: Right.
JUROR: At the time.
BOYD YOUNG: Is that something that you could realistically consider and you could see yourself--
JUROR: I could understand that.
BOYD YOUNG: Could you see yourself voting for it if you thought that that was appropriate?
JUROR: If I had evidence.
BOYD YOUNG: Sure. The Judge is going to tell you the burden is on the Defense to prove it by a preponderance of the evidence, more likely than not.
JUROR: Right, yes.
BOYD YOUNG: Okay. And you understand that that verdict would end the trial, the jury's job would be done, they would go home?
JUROR: Yes, sir.
BOYD YOUNG: But if the jury found the Defendant guilty or guilty but mentally ill we would have this second trial about punishment?
JUROR: Yes, sir.
BOYD YOUNG: Do you understand that?
JUROR: Yes, sir.
BOYD YOUNG: So in that second trial, all the evidence that the jury, any evidence that the jury heard about not guilty by reason of insanity, they would have said, no, we reject that evidence, he was guilty, he knew what he was doing, he knew the difference between right and wrong, he chose to kill, maliciously kill multiple children. Are you with me on that?
JUROR: Yes, sir.
BOYD YOUNG: That is where you are sort of starting this phase to decide between life penalty or the death penalty.
JUROR: Right.
BOYD YOUNG: At that point and time where you found that he knew what he was doing, knew the difference between right and wrong, do you sort of have an idea of which one of the two punishments you think might be appropriate?
JUROR: I really couldn't say because I am not against either one, just depending on the evidence. That is all I can say, is what I, what I see and what I think.
BOYD YOUNG: Fair enough. And I am going to come back to you a little bit more about some of the types of evidence that you are going to hear about it. Okay?
JUROR: Okay.
BOYD YOUNG: Given what we are talking about, like where we are, you had this sort of aggravated murder. Are you with me on that?
JUROR: Yes.
BOYD YOUNG: Can you tell me a little bit about your thoughts and feelings about the death penalty as, in your general philosophy about the death penalty?
JUROR: I mean, if it was like terrorist, you know, I am thinking that is vicious, that is trying to hurt people. So I guess I would be probably for the death penalty.
BOYD YOUNG: Okay. Like I say, don't let me put any words in your mouth. Okay. Some people think that death penalty is sort of like a necessary evil, a penalty of last resort. Is that where I hear you coming from?
JUROR: That is not what I am coming from. I am just saying that, like I am just giving an example as, like, that is how for, I mean, I did not create anybody. I, you know, I cannot tell, I am not against the death penalty but I am, it all depends on the circumstances that, the case, the evidence and stuff. I mean, I don't think that everybody should get the death penalty. I mean, I think that people are, you know, that can do things where they are not in their right state of mind.
BOYD YOUNG: Okay. And, correct me if I am wrong, and you also think that people, even if they were guilty of the malicious murder of multiple children, you don't think that they should automatically get the death penalty.
SUZANNE MAYES: Objection, Your Honor, that has been asked and answered twice now.
THE COURT: I think it has been asked and answered. Move on.
BOYD YOUNG: Sounds like you could, in your mind, believe that the life penalty, life without the possibility parole penalty could be a substantial enough penalty for that type of case?
JUROR: It could be.
BOYD YOUNG: Okay. And then, we are talking about the evidence, right?
JUROR: Yes.
BOYD YOUNG: And the Judge has talked to you a little bit about, sort of this mitigating fact, mitigating circumstances that you will hear about, right. And he listed off some and he told you about background and character, you recall that stuff?
JUROR: Yes, sir.
BOYD YOUNG: How the Defendant was raised, what his home life was like, what his future might be like. Is that stuff that is important to you in deciding whether the punishment should be the life penalty or death penalty?
JUROR: I don't think so.
BOYD YOUNG: Okay. Tell me why?
JUROR: Because I came from a broken home but I turned out to be a good person. So, I mean, it doesn't mean that if you are raised. I mean, sorry, I am a little nervous.
BOYD YOUNG: No reason to be nervous.
JUROR: I am just saying that, what was the question again.
BOYD YOUNG: Sure the background and character, would that be important to you in making your determination about which penalty would be appropriate?
JUROR: You know, you can have the best parents and still come out a bad apple. And when I say that, I don't mean that, that you are a vicious mean apple. But I am just saying that things might not always be good when it comes to you.
BOYD YOUNG: And it is no right or wrong answer. Some people say that stuff is not important to me. That is fine. Okay?
JUROR: Yes.
BOYD YOUNG: That is just--
JUROR: I just think, you know, if you come out of a bad environment, that doesn't mean that you are going to grow to be a bad person.
BOYD YOUNG: No.
JUROR: Vice, versa.
BOYD YOUNG: Right. For you that would be sort of an excuse that, it just doesn't matter to you?
JUROR: Yes.
BOYD YOUNG: Okay. Fair enough. This decision that the jurors ultimately make, the life penalty or the death penalty, it is sort of each jurors own individual moral judgment. Does that make sense to you?
JUROR: I am not quite understanding what you are saying.
BOYD YOUNG: Let me try to explain it a little bit more. There is no right or wrong answer for a Juror. There is no, like if you have this set of aggravating circumstances then this is the appropriate penalty. There is not going to be an instruction like that. Does that make sense to you?
JUROR: Okay.
BOYD YOUNG: Each Juror gets to decide for herself what value to give to any mitigating circumstance or any aggravating circumstances.
JUROR: Yes, sir.
BOYD YOUNG: And jury's can decide to give the value of life to any one mitigating circumstance or a collection of mitigating circumstance, does that make sense to you?
JUROR: Yes, sir.
BOYD YOUNG: And a Juror could say, in South Carolina a Juror could say, I don't even have a reason but I feel like life is the appropriate punishment for me. And I can't tell you why it is but that is what I feel. Can you respect a juror's right to say, I can't tell you why but I feel it is appropriate?
JUROR: Yes, I am very respectful when it comes to other people's opinions.
BOYD YOUNG: When I say individual moral judgment, and we all make moral judgments in our lives.
JUROR: Yes, sir.
BOYD YOUNG: For instance, you made your own individual moral judgments about your faith and what is important to you.
JUROR: Yes.
BOYD YOUNG: You recognize that other people have made different decisions for themselves?
JUROR: Yes, sir.
BOYD YOUNG: You respect their right to make their own decision about that?
JUROR: Yes, sir.
BOYD YOUNG: You expect them to respect your right to make your own decision?
JUROR: I hope so.
BOYD YOUNG: And if you saw somebody being belittled or bullied out of what they had arrived as their individual moral judgment would you stop it?
JUROR: Yes, sir.
BOYD YOUNG: And if it kept going could you send a note out to the Judge saying, this is going on?
JUROR: Yes, sir.
BOYD YOUNG: Okay. Did you want to say something else?
JUROR: No, I mean, I was just, I just got confused there for a second. You talking about like if we were, the jury and one was kind of picking on the other one because the other one was going along with the rest of them or something like that?
BOYD YOUNG: Yes, ma'am.
JUROR: Yes, sir.
BOYD YOUNG: Right. You would stop that?
JUROR: Yes sir, because I am an honest person.
BOYD YOUNG: And your oath as a Juror is to make sure that your own individual moral judgment is heard in the courtroom?
JUROR: Yes, sir.
BOYD YOUNG: Can you do that?
JUROR: Yes, sir.
BOYD YOUNG: And also, likewise, it would be a violation of your oath for a Juror to give up what they had arrived at as their individual moral judgment just to go along with the majority.
JUROR: Yes, sir.
BOYD YOUNG: And you would agree that that would just be wrong?
JUROR: Yes, sir.
BOYD YOUNG: And you would make sure that that didn't happen?
JUROR: Yes, sir.
BOYD YOUNG: Your Honor, based on the Court's limitations I will stop there.
THE COURT: Ms. Mayes.
EXAMINATION By Ms. Mayes:
SUZANNE MAYES: Good afternoon.
JUROR: Hey.
SUZANNE MAYES: My name is Suzanne Mayes, I am one of the prosecuting attorneys and we represent the State in this case with the Solicitor's office. I just have a few questions to ask you to follow-up. You heard at the outset of this case, the instructions from Your Honor?
JUROR: Yes, sir. I mean, sorry, yes Ma'am.
SUZANNE MAYES: And one of those was about mitigating factors?
JUROR: Yes, ma'am.
SUZANNE MAYES: And the mitigating factors would potentially be offered if the, in a second phase of this trial. And that is anything that the defense may feel is important, relevant or for consideration?
JUROR: Yes, ma'am.
SUZANNE MAYES: Are you willing to listen to each and every one of those mitigating factors that may be offered during the course of this case?
JUROR: Yes, ma'am.
SUZANNE MAYES: Would you be able to give meaningful consideration to each and every mitigating factor that may be offered by the Defense during the course of this case?
JUROR: Yes, ma'am.
SUZANNE MAYES: And I don't want to pick or choose just one or two things, I think you have got a question about background.
JUROR: Yes, ma'am.
SUZANNE MAYES: And character and how you personally feel. You haven't heard any evidence yet, have you?
JUROR: No, ma'am.
SUZANNE MAYES: So it is possible for you to even measure what kind of weight you would give to evidence you haven't heard?
JUROR: It was very hard to come up with something.
SUZANNE MAYES: So without knowing anything about the facts and evidence that may be presented are you open to hearing all of the evidence?
JUROR: Yes, ma'am.
SUZANNE MAYES: And you would consider each and every one of the mitigating factors in ultimately determining a punishment?
JUROR: Yes, ma'am.
SUZANNE MAYES: Would that potentially include background, childhood, things of that nature?
JUROR: Yes, ma'am.
SUZANNE MAYES: You could consider all of that?
JUROR: I could.
SUZANNE MAYES: And character as well, and that means evidence of good character, evidence of bad character. You would listen and consider all of that?
JUROR: All of it.
SUZANNE MAYES: In deciding a punishment?
JUROR: Yes.
SUZANNE MAYES: If after the close of all evidence, in a second phase of the trial, again we are looking ahead if there were to be a second phase of the trial. If after hearing all of the evidence you found that the mitigating factors support a sentence of life without parole would you be able to make life without parole your choice?
JUROR: If that is what we came to, the conclusion.
SUZANNE MAYES: You mean once you have heard it all and you have had a chance to deliberate with other jurors and reach your own conclusion?
JUROR: Yes.
SUZANNE MAYES: You would be open to that sentence?
JUROR: Yes, ma'am.
SUZANNE MAYES: And if after hearing all of the mitigating factors and all of the aggravating factors offered by the State, you determined that the death penalty was an appropriate sentence, would you be able to render a verdict for the death sentence?
JUROR: Yes, ma'am.
SUZANNE MAYES: With a potential death verdict and again, we are speaking as if there is a second phase of the trial and ultimately that were a determination made by all twelve jurors unanimously who have heard and evaluated the evidence. If it got to that point and you determined that the death sentence was appropriate, there is a verdict form that goes with that where each Juror has to sign their name. Would you be able, just ask you to reflect for a moment, would you be able to sign your name to a death sentence for any person if you found the evidence to be there?
JUROR: Yes, ma'am.
SUZANNE MAYES: Thank you. Nothing further.
BOYD YOUNG: Follow-up.
THE COURT: Okay.
EXAMINATION By Mr. Young:
BOYD YOUNG: Ms. Whisenant, like I said, there are no right or wrong answers. I thought I understood you to tell me that the background and character of a Defendant, how they were raised, would not be important to you and then you told Ms. Mayes that you would give all of that stuff meaningful consideration. Can you just sort of tell me where you are on that.
JUROR: Yes. When you were saying, would I consider background but if background is part of the evidence that I am suppose to look at then, yes, I would consider it.
BOYD YOUNG: Okay. The evidence about, would you agree with me that in deciding whether or not a person should live or die, that we probably should weigh their whole life in making that determination of whether or not we should end it.
JUROR: Anything that the two of you want to put out there as evidence or for things for us to consider, yes.
BOYD YOUNG: And that is stuff that you would give meaningful consideration and you could say, based on that I am going to vote for life?
JUROR: Yes.
BOYD YOUNG: Okay. I misunderstood you. Thank you very much, thank you for clearing that up.
JUROR: Thank you.
BOYD YOUNG: Thank you, Your Honor.
THE COURT: You want anything on the record?
BOYD YOUNG: No, sir.
THE COURT: Ms. Mayes, you need to put anything on the record?
SUZANNE MAYES: No sir, Your Honor.
THE COURT: Ms. Whisenant, you are qualified as a Juror. What that means is, I need you to check the Lexington County website, directions for what qualified jurors, when to report back will be on that website.
JUROR: Okay.
THE COURT: It will say, please report back at some date and time. I want you to follow those directions so start checking tonight. Now, until then and if you are, this doesn't mean you are on the jury, it means you are in a pool that the jury is going to be selected from. And you have not been excused already. For instance, people that came in here and their mind made up are excused. You came in, your mind is not made up and you want to hear everything. That is kind of I would qualify. You are in that group, you are a potential Juror and now qualified. Follow the internet directions on when to come back. Until then don't talk about the case, don't let anybody interrogate you, quiz you about the case, suggest anything to you about the case. I don't want you to do any independent research with anything going on about this case because I want you to consider your decision on what you hear in the courtroom presented by the lawyers. You just did it, y'all present it to me with your hands, you did the gesture right here. That is what I want you to base your decision on, not something that has been heard outside the Court House. Can you do that.
JUROR: Yes, sir.
THE COURT: I will see you back soon. Thank you so much.
JUROR: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 83. (Whereupon, Juror 83, Laguadia Caughman entered the courtroom.)
EXAMINATION
By The Court:
THE COURT: How are you?
JUROR: Okay.
THE COURT: I will remind you you are under oath. Say and spell your name so Ms. Holston can give you a voice check.
JUROR: Hello, my name is Laguadia Caughman. L-A-G-U-A-D-I-A. The last name, Caughman, C-A-U-G-H-M-A-N.
THE COURT: She has a great voice, very nice. I told you my first question, I remind you you are under oath. Have you talked with anybody about the case since Monday?
JUROR: Well, so my husband, we haven't talked about the case but, of course, he had to know that I was coming for jury duty. But we haven't had any discussions about the case.
THE COURT: The facts what I am worried about, not, that I have got to Court because Judge Griffith said please report back, the panel, whatever you are, to come back at some particular time. That is perfectly acceptable to talk about scheduling but not particular facts. Has anybody quizzed you on the case except for him on scheduling?
JUROR: No, I haven't discussed it.
THE COURT: Okay. Now, there has been information out there, publicity from different sources, from several years ago all the way through to today. I actually read the indictments to the entire jury panel Monday, I had to because that is part of the notification the State gives to Mr. Jones. This is what we are accusing you of, these are accusations, we are ready to start the trial. I read those, that is information that jurors heard. Has any information you have heard from where ever, whenever, cause you to already form an opinion as to what happened in this case?
JUROR: No.
THE COURT: You have not formed an opinion?
JUROR: No.
THE COURT: Remember, I am looking for beliefs and opinions, I want to make certain you understand the parameters of the candor in here. Your schedule, starting Monday to the next two or three weeks, what have you got?
JUROR: I am busy.
THE COURT: What have you got?
JUROR: So, I no longer work at the company that I listed on that initial sheet. So I am an independent owner and operator of a business. It is a party planning business so if I am not doing shows then that means I am not making money. So for me, like I am trying to network and do as many shows as I can all the time.
THE COURT: Is this where you do a show at a friend's house?
JUROR: Yes.
THE COURT: Sell whatever, selling party planning?
JUROR: Absolutely. So when I am not doing that I am not making money.
THE COURT: What did you do before?
JUROR: I was a business analyst for a company called, do I say?
THE COURT: Sure you can say.
JUROR: Seradata.
THE COURT: That is some computer in Lexington?
JUROR: Yes.
THE COURT: Sounds like a big hard drive or something.
JUROR: Yes, that is what we made.
THE COURT: Hard drives?
JUROR: We made, initially we made hard drives but we went into data warehousing.
THE COURT: You are a Cloud or something?
JUROR: We have Cloud services.
THE COURT: I want to talk about your current occupation. How long have you been doing that now?
JUROR: I have been moonlighting for the past five years.
THE COURT: Okay. Your parties are in the evenings?
JUROR: They were in the evenings when I was working my full-time job. But now that I am only doing this full-time a lot of my parties are 3:00, 4:00 o'clock in the afternoon. So I brought my calendar.
THE COURT: Tell me, do you have any prepaid vacations or anything like that, what do you have on the calendar in that regard.
JUROR: So, because I am independent operator I don't have like paid vacations.
THE COURT: That is going to be a change.
JUROR: My life is a vacation, I would like to think of it.
THE COURT: That's great.
JUROR: Yes.
THE COURT: Consider life a vacation. That means you are doing what you love?
JUROR: I am doing what I love to do. So for the next two weeks--
THE COURT: You consider yourself self-employed?
JUROR: I do.
THE COURT: Okay. And if you are not there doing that job you are going to close the door, so to speak.
JUROR: Yes. So for, I have an engagement, for instance, on Monday.
THE COURT: Tell you what I am going to do. The question I was asking you, I was getting a little reaction from the lawyers. Self-employed people can claim an exception and I went over that initially but now you have changed jobs, you can now claim it.
JUROR: Yes.
THE COURT: Would you like to claim your exemption as a self-employed person?
JUROR: Yes.
THE COURT: You don't have to.
JUROR: Yes, I would like to, yes.
THE COURT: Consider yourself excused and please accept my thanks for coming and being patient with me.
JUROR: Okay. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Bring in 143. The last one who has not been presented a summary. I am going to do him right here. Bring him in. (Whereupon, Juror 143, Bryan Ferreira entered the courtroom.)
Bryan Ferreira, being first duly sworn, testified as follows:
COURT CLERK: If you will say and spell your first and last name, please, for the record.
JUROR: My name is Bryan Ferriera. Bryan with a Y. My last name is spelled, F-E-R-R-E-I-R-A.
EXAMINATION
By The Court:
THE COURT: Mr. Ferreira, you are a little bit late, that is fine, better late than never in this case. My name is Eugene Griffith, I gave some preliminary instructions to the other jurors. I am going to go through some of those questions with you. Since last Monday, basically I am going to ask you the same question that I have asked everybody else and I have already told them that. So I am not going to put you on the spot but, candor, personal opinions and that type of thing, feelings, is acceptable and is actually what we are looking for. We want to hear, in my opinion I think that would not be fair. I want those kinds of answers. Okay.
JUROR: Okay.
THE COURT: Honest, candid opinions. Some of the questions aren't going to be opinions like this one. Have you talked to anybody about the case since last Monday?
JUROR: No.
THE COURT: Has anybody tried to talk to you about the case since last Monday?
JUROR: No.
THE COURT: Have you seen any publicity since four years ago, through today's date including my, I read the indictments to you last Monday which spell out the allegations made by the State and Mr. Jones. Has any information you have come into possession of caused you to create an opinion already as to what happened?
JUROR: When the charges were listed.
THE COURT: When I read them out?
JUROR: Yes.
THE COURT: That is all you have heard?
JUROR: That is all I have heard.
THE COURT: Did that cause you to form an opinion or did you understand my instructions, those were just the State's accusations?
JUROR: Yes.
THE COURT: No opinion?
JUROR: No opinion.
THE COURT: Now, the State has got the burden of proving its case beyond a reasonable doubt. Okay.
JUROR: Okay.
THE COURT: I am going to come back to that. This case has the allegations involving the murder of several children. In that regard the subject matter of this case would involve testimony describing those children. That testimony has been described to me by the parties as being difficult, graphic and unpleasant, it is not going to be easy evidence to receive yet I need to know, this difficult evidence that we may see if you are selected as a Juror and the Court will receive because I have not seen it all. Could you consider difficult and unpleasant and still be fair to both sides?
JUROR: It would be rather difficult, it is hard to say without seeing evidence. I mean, I can't really say honestly if I wouldn't. But I would just, I don't want to take a chance regarding that because given that it could be graphic and difficult to process that I may have some biases for him once seeing the evidence.
THE COURT: That is kind of part of the opinion. The lawyers, they want to know, is that going to affect you. Some of them have had things happen in their past, who knows what, revisiting information like that may cause an impact to that person, to you. So would that describe you maybe?
JUROR: Not in that description, not exactly but just the, the information, I have a, I wouldn't, I don't want to say too much on it but I would find it hard and difficult to process and I just don't want to be put in that situation where I make a wrong decision based on an opinion.
THE COURT: All right. And, you know, if the receiving of the evidence would cause you to form a prejudiced at that time, that would not be appropriate. Do you think?
JUROR: No.
THE COURT: Okay. What is your schedule like over the next three weeks.
JUROR: I have a business trip staring on Monday.
THE COURT: You have got two reasons to be excused. Thank you for coming.
JUROR: Is that it?
THE COURT: That is it.
JUROR: Thank you for your time.
THE COURT: Thank you. (Whereupon, the Juror was excused from the courtroom.)
THE COURT: Let's take about ten minutes and then we will talk.
(Whereupon, a short break was taken.)
THE COURT: Madam Clerk, I am going to have a brief conference, I don't want the microphones on for a few minutes. This is off the record. (Whereupon, the Court and the attorneys have a brief conference off the record.)
THE COURT: For the record, Mr. Monk, can y'all hear me. This is kind of status conference we just had regarding scheduling. This is our tentative schedule. Tomorrow we are down, observing the State Holiday, particularly the County employees of Lexington taking the Holiday. So we are down tomorrow, no court tomorrow, there will be nothing going on. That gives all the attorneys a day to rest but work, get their feet back under them after our intense voir dire of the qualifying jurors. We have a group of qualified jurors who will be notified, via the website, to be back in the Court House 10:00 a.m. Monday. 10:00 a.m. Monday we will then attempt to select our jurors via striking. We will deal with that Monday morning. Monday afternoon we have got two or three motions that need to be dealt with regarding some redactions, some statement as well as the Lyle issue case of the issue perhaps. Also Monday afternoon I would like to have an informal status conference again with the media to make certain they have no concerns thus far. Just like we had before, if we need to readdress any issues I will meet with the media Monday afternoon also. Tuesday morning there is an out-of-state witness that is going to be a video presentation testimony recorded to him, be here in the courtroom. That recording will be done in the courtroom, the lawyers will be present and that need not be on the record. That is just presented, when it is presented at trial then it will be on the record.
BOYD YOUNG: I have never done it before so I don't know if we transcribe it right now or run the videotape it, the video would never be transcribed because it was played.
THE COURT: We will decide that Monday afternoon how we are going to deal with that, while Joy will make that a record while he is testifying and be recorded. That may be easier for her.
COURT REPORTER: What are we talking about.
THE COURT: They are bringing a witness in from somewhere that is going to be offered for testimony later, in another portion of the case, but he is not going to be available later. But he is going to be here in the courtroom Tuesday morning. They are going to video him.
COURT REPORTER: We can just use the video, make it a Court's exhibit and show the jury the video.
THE COURT: If need be.
COURT REPORTER: And we can transcribe it too.
THE COURT: That is what I am saying. So you can sit here and listen to it live.
COURT REPORTER: Exactly.
THE COURT: And transcribe and the video can be presented to the jury also. We will use both, that will be Tuesday. That will not be in front of the jury, that will just to preserve the order presentation of the case. It will be presented when appropriate by the Defense.
BOYD YOUNG: Yes, sir.
THE COURT: We are shooting opening statements starting Tuesday after lunch, probably 1:00, 2:00 o'clock. Opening statements to the jury done Tuesday afternoon starting with witnesses Wednesday morning. Is that consistent with our status conference. That is our schedule right now. We will stand down until Monday morning at 9:30. (Whereupon, the trial will resume Monday, May 13, 2019.)