Harris, James Jr.

James Harris Appendix Page 000001
February 3, 2015
NO. AP-77,029
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
JAMES HARRIS JR.
Appellant
VS.
STATE OF TEXAS
Appellee
APPEAL FROM THE 149TH DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
AT
ANGLETON, TEXAS
TRIAL COURT CAUSE NO. 67063
APPELLANT’S APPENDIX
Jimmy Phillips, Jr.
P. O. Drawer 29
Angleton, Texas 77516-0029
Tel: 979-849-8511 Fax: 979-849-1409
email: jimmy@jpjlaw.com
SBN 15953000
Attorney for Appellant
JAMES HARRIS JR.
February 2015
James Harris Appendix Page 000002
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE
Appendix - Attachment 1 ( Reporter’s Record Vol 73, Pg. 5 to 42). . . . . . . . . . . . 3
Appendix - Attachment 2 ( Reporter’s Record Vol 73, Pg. 125 to Pg. 129 ). . . . 41
Appendix - Attachment 3 ( Reporter’s Record Vol 74, Pg. 60 to 61). . . . . . . . . . 46
Appendix - Attachment 4 ( Reporter’s Record Vol 74, Pg. 152 to 153) . . . . . . . 48
Appendix - Attachment 5 (District Clerks Record Vol 4, Pg. 115).. . . . . . . . . . . 50
Appendix - Attachment 6 (Reporter’s Record Vol. 74, Pg. 10, line 6 to 17). . . . 51
Appendix - Attachment 7 (Reporter’s Record Vol. 26, Pg. 48 to 139 ). . . . . . . . . 52
Appendix - Attachment 8 (Reporter’s Record Vol. 27, Pg. 112 to 213 ). . . . . . . 144
Appendix - Attachment 9 (Reporter’s Record Vol. 29, Pg. 48 to 253 ). . . . . . . . 246
Appendix - Attachment 10 (Reporter’s Record Vol. 32, Pg. 34 to 109 ). . . . . . . 352
Appendix - Attachment 11 (Reporter’s Record Vol. 49, Pg. 201 to 232 ). . . . . . 428
Appendix - Attachment 12 (Reporter’s Record Vol. 32, Pg. 101 to 102 ). . . . . . 459
Appendix - Attachment 13 (Reporter’s Record Vol. 27, Pg. 190 to 195 ). . . . . . 461
Appendix - Attachment 14 (Reporter’s Record Vol. 27, Pg. 204 to 207 ). . . . . . 467
Appendix - Attachment 15 (Reporter’s Record Vol. 23, Pg. 99 to 100 ). . . . . . . 471
James Harris Appendix Page 000003 5
1 DECEMBER 9, 2013
2 THE COURT: We're on the record. The record will
3 reflect that counsel for the State, counsel for defense, the
4 Defendant are present. The jury is not present.
5 Do I understand we have another 705 examination
6 before the next witness?
7 MR. WOOTEN: Yes, Your Honor.
8 THE COURT: All right. Are you ready to proceed
9 on that?
10 MR. WOOTEN: Yes, sir.
11 THE COURT: Ms. Yenne, are you ready to proceed?
12 MS. YENNE: Yes, Your Honor.
13 THE COURT: All right. Call your witness.
14 MR. WOOTEN: We call Dr. Raymond Singer.
15 (Witness duly sworn by the Court.)
16 THE COURT: Have a seat, please.
17 You may inquire when you're ready.
18 RAYMOND SINGER,
19 having been first duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. WOOTEN:
22 Q. Would you state your full name for the record, please?
23 A. Raymond Singer.
24 Q. And how are you employed, sir?
25 A. I am a neuropsychologist and a neurotoxicologist.
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1 Q. Okay. Could you tell us a little bit about your
2 educational background?
3 A. Sure. After graduating high school I attended the
4 University of Rochester in Rochester, New York, where I
5 received a Bachelor's degree in psychology.
6 Following that I was accepted and attended
7 graduate school in psychology at Washington State University
8 where I received a Master's degree and a Ph.D. degree in
9 psychology.
10 Following that I went to New York City and I
11 accepted a National Institute of Health postdoctoral fellowship
12 in biological psychiatry at New York University School of
13 Medicine.
14 Following that I accepted a postdoctoral
15 fellowship in environmental epidemiology, which is the study of
16 diseases among -- in the population. This program was a
17 National Institute of Environmental Health Sciences program
18 administered through the Mount Sinai School of Medicine,
19 Environmental Sciences Laboratory, and Department of Community
20 Medicine. I studied under the direction of Dr. Irving J.
21 Selikoff, who was the world's premier public health doctor who
22 was devoting his energy and time and resources to studying the
23 effects of toxic chemicals, particularly the effects of low
24 level chronic exposures. And this work was pioneering work and
25 has set the standard around the world concerning how to
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1 evaluate these types of exposures.
2 Q. Okay. So hang on. And I know we're going to talk a
3 little more about neurotoxicology in a minute. Are you -- but
4 let's get through.
5 So you have a Ph.D. in what, sir?
6 A. In psychology.
7 Q. Okay. And are you board certified?
8 A. Yes.
9 Q. In what?
10 A. In neuropsychology with added qualifications in
11 forensic specialization.
12 Q. Okay. Now is there a board certification for
13 neurotoxicology?
14 A. No.
15 Q. Okay. And so you said that you have added additional
16 training. Is that in the area of what? Neurotoxicology?
17 A. Yes.
18 Q. All right. Can you tell us a little bit more,
19 continuing with what you were saying before, about the
20 specialized training that you've had in neurotoxicology?
21 A. Sure. At Mount Sinai School of Medicine I was -- I
22 was within the group of people that was tasked with assessing
23 the effects of neurotoxicity. My work at that time included
24 evaluating patients at the Environmental and Occupational
25 Health Clinic of Mount Sinai School of Medicine as well as
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1 developing methodology to evaluate the effects of
2 neurotoxicants. Such methodology included nerve conduction,
3 velocity assessment, which I studied and which I practiced and
4 which I taught at Mount Sinai School of Medicine to other
5 doctors and other personnel. We applied this technique to
6 studying Agent Orange and the results of that that we published
7 was very helpful, apparently, to the Veteran's Administration,
8 ultimately, when they were --
9 MS. YENNE: Objection. Nonresponsive at this
10 point in time, Your Honor.
11 THE COURT: I'll overrule it for purposes of this
12 hearing.
13 Q. Is there any other further training that you've had or
14 work you've done in the area of neurotoxicology?
15 A. Well, yes. I was there for approximately four years,
16 and I could talk about the work I did there or I can continue
17 on after that.
18 Q. Well, so you were there four years. Was it -- was
19 that four years of work done specifically in the area of
20 neurotoxicology?
21 A. Yes. With regard to neuropsychological and
22 neurophysiological and statistical applications to study
23 neurotoxicology.
24 Q. Okay. And then after those four years, what other
25 training did you have or education in the area of
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1 neurotoxicology?
2 A. Since that time I have become a member of the Society
3 of Toxicology. And to become a member of that society, you
4 have to get a recommendation from other toxicologists, as well
5 as show that you are a toxicologist through publications and
6 through your work. And they accepted me as a full member.
7 I've been a full member for over 25 years. I've attended a
8 number of their conferences. I've made presentations at their
9 conferences.
10 I became a member of the Roundtable of Toxicology
11 Consultants, which is a subgroup of the Society of Toxicology,
12 of toxicologists that have an independent professional practice
13 in toxicology. And there is maybe a hundred, 150 members of
14 this group.
15 Q. Okay. Any other training or education in this area?
16 A. Well, I just wanted to just elaborate a little more.
17 And in that organization I have been elected an officer a
18 number of times, and I've taught at seminars sponsored by the
19 Roundtable of Toxicology Consultants.
20 Q. Okay. Any other courses or presentations that you've
21 taught that you haven't already covered, either as a
22 neurotoxicologist or as a neuropsychologist?
23 A. There are numerous presentations that I've made in
24 both of those fields that's cataloged in my vitae.
25 Q. Okay. And have you -- you've already talked about
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1 publishing several articles. Have you published any other
2 articles?
3 A. One of the -- yes, I have published several articles.
4 And one of the -- one of my early, I might say, achievements in
5 neurotoxicology was that I got a call from Van Nostrand
6 Reinhold, which was one of the larger publication sources for
7 toxicology and industrial hygiene, and they asked me to write a
8 book on neurotoxicology, which I did at that time. And they
9 published, and that was one of the first books by a single
10 author on the field of neurotoxicology.
11 Q. And what is the name of that publication, sir?
12 A. Neurotoxicity Guidebook. And one of the peer
13 reviewers was --
14 MS. YENNE: Objection. Nonresponsive at this
15 point in time, Your Honor.
16 THE COURT: I agree with you it is; but for the
17 purposes of this hearing, I'll go ahead and allow him to
18 elaborate. But we're not before the jury at this time.
19 Q. Could you tell me -- I'm sorry. Could you continue
20 about the peer review?
21 A. Yes. I just wanted to mention that one of the peer
22 reviewers was -- is actually the editor in chief of the journal
23 Neurotoxicology and is a prominent neurotoxicologist in the
24 Society of Toxicology.
25 Q. Okay. Now other than the professional organizations
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1 that you've already spoken of, are you a member of any other
2 professional organizations?
3 A. Yes. I'm a member of the American Academy of Clinical
4 Toxicology. And again, they had admission requirements where
5 you had to show that you're a toxicologist to get admitted
6 there.
7 I was a member of the American College of
8 Toxicology. I'm no longer a member of that group. But that is
9 another group where you needed to present credentials to be
10 accepted.
11 In addition, I'm a member of the National Academy
12 of Neuropsychology. I'm a fellow of that organization. My
13 work in neurotoxicology has been recognized there as well.
14 Q. Now have you testified as an expert witness before?
15 A. Yes.
16 Q. In what areas?
17 A. In neurotoxicology and neuropsychology.
18 Q. Okay. Let's take those separately. How many times
19 have you testified in neuropsychology?
20 A. I think the most of the times that I testify I'm
21 testifying in both fields, neuropsychology and neurotoxicology.
22 Q. Okay.
23 A. I'm not recalling that to be separate.
24 Q. Okay. Well, let me ask a better question then.
25 How many times have you testified in both those
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1 areas?
2 A. It's difficult for me to say exactly. I tried to
3 review my testimony records last night. And I used to be
4 testifying about six times year, and now it seems like I'm
5 testifying about four times a year since approximately 1983.
6 Q. Okay. And is that in state court or federal court?
7 A. Both.
8 Q. Okay. And have you testified only in one state or
9 many states?
10 A. A number of states.
11 Q. Now what exactly is a neurotoxicologist?
12 A. A neurotoxicologist is a scientist who studies the
13 effects of poisons on the nervous system.
14 Q. Okay. And what is a neuropsychologist?
15 A. A neuropsychologist is a scientist who studies the
16 nervous system substrates of psychological function.
17 Q. Okay. Now what -- let's take one at a time.
18 A. I would say they focus on the brain behavior
19 relationship. That will be a more cogent way to describe it.
20 Q. Okay. Now what does a neurotoxicologist actually do
21 if they are asked to work on a case?
22 A. There are many, many types of neurotoxicologists; and
23 they -- it can range from looking at neurochemistry to looking
24 at neuroanatomy or, in my case, I look at the nervous system
25 function.
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1 Q. Okay. Does this field of expertise rely upon accepted
2 scientific principles in the scientific community?
3 A. Yes.
4 Q. Has it been recognized as legitimate science by the
5 scientific community?
6 A. As far as I know it has. We have our journals. We
7 have meetings.
8 Q. Okay.
9 A. We get referrals from doctors and other professionals.
10 Q. Okay. And what about neuropsychology? Is it based on
11 accepted principles in the scientific community?
12 A. Yes.
13 Q. It has been recognized as a legitimate field of
14 science?
15 A. Yes. As far as I know it is recognized.
16 Q. Okay. Now can you tell me a little bit about -- well,
17 let me just ask you this. You were retained to work on the
18 James Harris case?
19 A. Yes.
20 Q. Okay. What, in fact, have you done -- what work have
21 you done on the James Harris case?
22 A. I've reviewed records in the case. I reviewed the
23 neuropsychological findings of Dr. Kasper. I conducted my own
24 evaluation of Mr. Harris. I've seen him on two occasions prior
25 to today. I studied the research literature on pesticides and
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1 other toxic substances to which Mr. Harris had been exposed. I
2 reviewed the latest thinking on the effects of toxic substances
3 on developing nervous systems of children and adolescents. I
4 reviewed records including Mr. Harris' educational records and
5 other cognitive testing that he underwent. I reviewed
6 information regarding the types of pesticides that had been
7 applied to agricultural fields at the time Mr. Harris was
8 working in those fields as a child. And I probably did other
9 things, too.
10 Q. Okay. Now when you reviewed Dr. Kasper's work in the
11 case, did you form opinions as to her work?
12 A. Yes.
13 Q. Okay. And did you accept her findings?
14 A. Yes.
15 Q. Did you form an opinion as to Mr. Harris', for lack of
16 a word, mental health from a neurotoxicological and a
17 neuropsychological basis?
18 A. Yes.
19 Q. And what, if any, are those opinions?
20 A. I think he suffers from brain injury from exposure to
21 numerous toxic substances, particularly from childhood,
22 resulting in major neurocognitive disorder.
23 Q. Okay. Now what substances are we talking about?
24 A. Organophosphate pesticides, organochlorine pesticides,
25 hydrogen sulfide, lead, mixture of solvents, mercury, carbon
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1 monoxide. I may be missing some there in the occupation. But
2 as well I considered cocaine neurotoxicity.
3 Q. Okay. And in your work on this case did you form an
4 opinion as to whether James Harris was exposed to the toxicants
5 that you just listed?
6 A. Yes.
7 Q. Okay. And what is that opinion?
8 A. I don't understand.
9 Q. Well, I asked you if you had formed an opinion. Are
10 you saying that your opinion is that he was?
11 A. Yes.
12 Q. Okay. Sorry.
13 A. My opinion was he was exposed to numerous neurotoxic
14 agents that ultimately resulted in a brain injury.
15 Q. Okay.
16 MR. WOOTEN: May I have a moment, Judge?
17 THE COURT: You may.
18 MR. WOOTEN: Judge, just so the Court knows,
19 because we've tried to accommodate the Court's directives on
20 the record, we brought -- we had sent a bunch of CD's to
21 Dr. Singer. He brought those CD's back to us. We've handed
22 those exact CD's to the State. Also -- and this is me learning
23 internet or whatever. There is also something called the
24 Dropbox where we put stuff on the Dropbox and Dr. Singer would
25 go to the Dropbox and retrieve. We downloaded that material to
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1 this stick. Now -- and so we brought those to court.
2 Now -- and we don't mind doing this, but now what
3 we're going to have to do is go and, I guess, print all that
4 out. But this is going to be, basically, all the records that
5 are in this case. We don't mind doing it, but we don't have
6 any high speed --
7 MS. YENNE: I would simply ask for a little bit
8 of time.
9 MR. WOOTEN: I'm just letting you know where we
10 are at.
11 THE COURT: That's fine.
12 MR. WOOTEN: And I'm not objecting to what they
13 are asking us to do.
14 THE COURT: All right. So we'll recess -- are
15 you passing the witness at this time?
16 MR. WOOTEN: Yes, Judge. I'm sorry. For the
17 record we pass the witness.
18 THE COURT: All right. Then let's recess. Get
19 the records printed. We'll give Ms. Yenne some time to look at
20 that.
21 Dr. Singer, you may step down. The Rule has been
22 invoked in this case. I assume since you've testified many
23 times you know what that is.
24 THE WITNESS: Please remind me, Your Honor.
25 THE COURT: Okay. You cannot discuss anything
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1 about this case with anyone except the lawyers. You're free to
2 talk to the lawyers or you're free to talk to their
3 investigators if you want to. You can't read any notes or
4 transcriptions that anybody may have taken about the case. You
5 can't ask, you know, what has somebody else testified to
6 concerning this case. Do you understand that?
7 THE WITNESS: Yes, sir.
8 THE COURT: All right. Thank you. You may step
9 down.
10 We'll be in recess until the State has had the
11 opportunity to review the records.
12 (A short recess was taken.)
13 THE COURT: We're on the record. The record will
14 reflect that counsel for the State, counsel for the defense,
15 the Defendant, as well as Dr. Singer are all present and seated
16 in the courtroom. The jury is not present.
17 Ms. Yenne, have you had time to review the
18 records?
19 MS. YENNE: Oh, yes.
20 THE COURT: All right. You may proceed.
21 CROSS-EXAMINATION
22 BY MS. YENNE:
23 Q. Just a few questions, Dr. Singer. You talked about
24 there is no license for a neurotoxicologist. Is that a fair
25 statement?
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1 A. Yes.
2 Q. Okay. Oh, by the way, my name is Jeri Yenne. It's a
3 pleasure to meet you. I'm the District Attorney here,
4 Dr. Singer. If I ask you a question that you just don't
5 understand, just tell me, I don't understand what you're
6 asking.
7 A. Sure.
8 Q. You won't be the first person who says that.
9 But there are licensed toxicologists in various
10 states, are there not?
11 A. Not to my knowledge.
12 Q. Okay. So there is no licensed toxicologist in New
13 Mexico? You don't have to have a license or a credential or
14 certified by the state to be a toxicologist?
15 A. That's correct. Let me just add. Perhaps forensic
16 laboratories might be licensed.
17 Q. Okay?
18 A. But other than that, no, there is no license for
19 toxicologists.
20 Q. Okay. So that's my point. So if I were a
21 toxicologist performing duties as to determine if some of these
22 substances were present, you would have to be licensed?
23 A. You know, I'm uncertain about that.
24 Q. Okay. But labs have to be licensed and accredited?
25 A. I know labs have to be accredited. I'm not sure if
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1 they have licensures.
2 Q. Okay. So let me go a little further. You're a
3 psychologist, correct?
4 A. I'm a neuropsychologist and a neurotoxicologist.
5 Q. Okay. My first question was you are a psychologist,
6 though, correct?
7 A. Yes.
8 Q. Okay. You're not a medical doctor, correct?
9 A. Correct.
10 Q. Okay. So you're not a radiologist, correct?
11 A. Correct.
12 Q. Okay. And you're not a neurologist, is that correct?
13 A. Yes.
14 Q. Okay. Let me go -- Mr. Wooten, I think, probably
15 meant to ask you but forgot. You are coming here today for
16 compensation. Is that correct? You're getting paid for your
17 services?
18 A. I came here to testify, and I'm getting paid.
19 Q. Okay. And what is your hourly rate for your services
20 as a neurotoxicologist?
21 A. $350 an hour.
22 Q. Okay. And when were you first contacted? And by the
23 way, were you contacted by the defense in this case?
24 A. Yes.
25 Q. Okay. Who from the defense contacted you?
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1 A. I believe it was Mr. Wooten.
2 Q. Okay. And when, please?
3 A. I don't recall.
4 Q. Okay. All right. And approximately -- when you say
5 I'm getting compensated for my time and my testimony, that
6 would be at the $350 an hour rate, correct?
7 A. Yes, except for travel is --
8 MR. WOOTEN: Jeri?
9 Q. Okay. So I guess I'm asking for the financial
10 arrangements made with the defense in this case. There are
11 times you have different hourly rates as defense counsel is
12 passing to me here, correct? Your average rate, maybe, is 350.
13 Is that a fair statement?
14 A. Well, 350 is my rate for most of my work.
15 Q. Okay. Fair enough. Fair enough. And how many hours
16 do you have in this case, preparation time? How many hours do
17 you have to date, Doctor? Let me be a little more specific, if
18 I could.
19 A. Roughly, 85 hours.
20 Q. Okay. So what does that calculate to? And you are
21 authorized up to the sum of $30,000 in this case? Is that what
22 I'm --
23 A. Yes.
24 Q. Okay. All right. For preparation and testimony. Is
25 that a fair statement? Your cap is up to $30,000?
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1 A. For preparation, testimony, and expenses.
2 Q. Okay. And right now it looks like you're at 29,750.
3 Is that a fair statement?
4 A. Yes.
5 Q. Do you intend to bill for any remaining hours over
6 $30,000?
7 A. Yes.
8 Q. Okay. Hoping that maybe the Court will authorize the
9 same. Is that a fair statement?
10 A. First it goes to the defense attorneys --
11 Q. Sure.
12 A. -- and then they -- if they feel it's worthwhile, they
13 present it to the Court.
14 Q. Okay. But I guess what I'm saying is right now you're
15 at 29,750. You are here today. I would take it that you're
16 almost at the 30,000 cap. Is that a fair statement?
17 A. Yes.
18 Q. I'm not the greatest in math, Dr. Singer; but you
19 do --
20 A. I'm over the 30,000.
21 Q. Okay. You're over the 30,000. At some point in time
22 you will submit additional hours hoping that they are
23 considered for compensation. Is that a fair assessment?
24 A. Yes.
25 Q. Okay. You have two offices. Is that one in New York?
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1 A. I have an office in New York, but that is -- I'm not
2 there very often, and I don't have to maintain that office.
3 Q. Okay. But that office exists. Is that a fair
4 statement?
5 A. Yes.
6 Q. And your other office is in New Mexico?
7 A. Yes.
8 Q. Okay. Now I see that there was an MRI forwarded from
9 St. Luke's Hospital. Are you qualified yourself to read an
10 MRI?
11 A. No.
12 Q. Okay. When did you receive the MRI?
13 A. I don't recall.
14 Q. Okay. Did you get the same report of that MRI that
15 Dr. Kasper did from St. Luke's? It's the little one-page
16 report?
17 A. I believe that I did.
18 Q. Okay. Thank you.
19 What do you base your opinion on that you've
20 testified to about the -- I believe that the Defendant has been
21 exposed to -- has had some effects of neurotoxicity. Is that a
22 fair statement?
23 A. I don't understand the question.
24 Q. Okay. Well, refresh my memory. It's been an hour,
25 and I'm old. How does that sound? Okay? You gave an opinion
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1 to counsel about something that you believe has happened to
2 Mr. Harris, the Defendant?
3 A. Yes.
4 Q. What is that opinion? And then I'm going to ask you a
5 little further, please.
6 A. Okay.
7 Q. It's been an hour, Dr. Singer.
8 A. Uh-huh. My opinion is that Mr. Harris was exposed to
9 numerous neurotoxic chemicals over his lifetime. I am
10 particularly concerned about and I think -- I'm particularly
11 concerned about the pesticide exposure when Mr. Harris was a
12 child and its deleterious effect on his neurocognitive
13 development. As well, he had further exposures as a child and
14 as an adult, including exposure to cocaine.
15 Q. Okay. Could I ask -- when you talk about numerous
16 exposures, can you list them for me? Because I want to make
17 sure -- I saw your report. I want to make sure I understand
18 it, Doctor.
19 A. Okay.
20 Q. So besides the pesticides, if you will, the crop
21 dusting, the effects of crop dusting -- are those the organo --
22 help me. What do you call them?
23 A. Organophosphates and organochlorines.
24 Q. Thank you. Hang on just a minute. That will be the
25 crop situation. Is that a fair statement? Crop dusting
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1 situation?
2 A. Yes.
3 Q. Okay. That's what -- I just want to make sure. The
4 agriculture exposure as a child. Fair enough?
5 A. Yes.
6 Q. But you listed numerous other exposures. One of those
7 is cocaine, correct?
8 A. Yes.
9 Q. But there is a lot of others in your report. Can you
10 tell me the other exposures that you believe this Defendant has
11 been subjected to?
12 A. The occupational exposure to hydrogen sulfide.
13 Q. Okay. Where was that?
14 A. That was when he worked at the New Gulf Sulphur Plant.
15 Q. Okay.
16 A. Lead -- occupational lead exposure and solvent
17 exposure as a child working at the New Gulf Sulphur Plant.
18 Q. Okay. Thank you.
19 A. His work in the refinery, the Phillips 66 refinery --
20 Q. Okay.
21 A. -- where he was exposed to -- where I have knowledge
22 that he was exposed to welding fumes.
23 Q. Where did that knowledge come from?
24 A. That comes from Mr. Harris.
25 Q. Okay. Thank you.
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1 A. And sandblasting of paint. Exposed to the dust of the
2 sandblasting of paint.
3 Q. Where was that?
4 A. This is while working at Phillips 66 refinery.
5 Q. Okay. Thank you.
6 A. Also at the refinery he had an exposure to
7 something -- and we don't know what it is, and it made him sick
8 for a day -- or a few days.
9 Q. Okay. And is this information from Phillips 66, the
10 sandblasting and that, does that all come from Mr. Harris, the
11 Defendant?
12 A. A lot of the information comes from Mr. Harris.
13 Q. The exposure of what you don't know what it is, some
14 exposure, came from Mr. Harris?
15 A. Yes.
16 Q. Okay. Fair enough. And the welding -- welding fumes
17 is the Phillips plant? Is that accurate?
18 A. Yes. Welding fumes is the Phillips plant.
19 Q. Any other exposures, please? I see pesticide exposure
20 as a youngster, correct, Doctor?
21 A. Yes.
22 Q. I see chemical exposure as an adult. Okay. Besides
23 the Phillips 66 and what you described, any other adult
24 chemical exposure, please?
25 A. Okay. I'm checking my notes.
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1 Q. Thanks, Doctor.
2 A. The only other significant exposures that I found were
3 that to cocaine.
4 Q. Okay. There was some other exposure that you put to
5 food, though. Likely unrelated exposures. That's the
6 beginning of your report. Letter H, food pollution.
7 A. Right.
8 Q. Okay. And what did that consist of?
9 A. I don't think there was any.
10 Q. Okay. All right. When did you visit with Mr. Harris
11 about -- when did you interview Mr. Harris, and when was the
12 first time you met Mr. Harris?
13 A. The first time I met Mr. Harris was when I interviewed
14 him November 27th, 2013.
15 Q. Where was that?
16 A. That was in the county jail.
17 Q. Okay. So you physically traveled to the county jail
18 and interviewed him November 27th, in the last couple weeks?
19 A. Yes.
20 Q. Okay. And how long did you spend with him then?
21 A. All day.
22 Q. Okay. And how about the second time you met with him?
23 A. That was last night.
24 Q. Last night? Okay. How long did you have a chance to
25 spend with him?
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1 A. About an hour.
2 Q. Okay. When you say all day, how many hours the first
3 time, November 27th?
4 A. About seven hours.
5 Q. Thank you. All right. The jail was very
6 accommodating, weren't they?
7 A. Yes.
8 Q. Very polite, courteous over there?
9 A. Yes.
10 Q. Okay. Let me ask you just a couple other questions.
11 Mr. Wooten indicated that you have testified before in other
12 courts, right?
13 A. Yes.
14 Q. And that would be regarding various types of
15 neurotoxicity, correct?
16 A. Yes.
17 Q. Okay. And he asked if your testimony -- if courts had
18 accepted your testimony, correct?
19 A. Yes.
20 Q. Okay. It's true, also, that courts on more than one
21 occasion have excluded your testimony, finding it to not be
22 scientifically reliable. Is that not true, Dr. Singer?
23 A. It's true that my testimony has been excluded.
24 Q. Okay.
25 A. But I'm -- I would not characterize it as
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1 scientifically unreliable.
2 Q. Okay. But courts have excluded it when you were
3 offering scientific testimony. Is that a fair statement?
4 A. It's fair to say that an extreme minority of courts
5 excluded my testimony.
6 Q. Okay. Let's talk about how many occasions that's
7 happened. How many times, Dr. Singer?
8 A. Approximately, five times.
9 Q. Okay. And let's talk about the five times, please.
10 Okay? Some of those have been in federal court. Correct?
11 A. I'm uncertain.
12 Q. Okay. Well, can you tell me the locations that
13 occurred, please, Dr. Singer?
14 A. One was in Virginia.
15 Q. Okay.
16 A. But I'm not sure if that counts because I don't know
17 what happened.
18 Q. We'll talk about that later.
19 A. Okay.
20 Q. So it was excluded in Virginia. Civil suit, correct?
21 A. Actually, I'm not certain what happened in that case.
22 Q. Okay. You know your testimony was excluded, correct?
23 A. Well, I know that the case was dropped and then
24 refiled.
25 Q. Okay. You're aware that a federal court excluded your
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1 testimony in a matter in Virginia. Is that true?
2 A. Yes. They excluded my testimony because I relied on
3 another witness who they excluded.
4 Q. Okay. But your testimony was excluded, correct?
5 A. Yes, but not on the ground of scientific
6 unreliability.
7 Q. My question is it was excluded, correct? Your
8 testimony was excluded, correct?
9 A. Yes.
10 Q. Okay. Let's go a little further. Your testimony has
11 been excluded regarding matters in Texas in the past, correct?
12 A. There was one case in Texas, yes.
13 Q. Oh, by the way, what was the nature of your testimony?
14 What kind of exposure was in Virginia, please?
15 A. I believe it was pesticide exposure.
16 Q. Okay. Does refrigerant gas ring a bell in Virginia?
17 A. Yes.
18 Q. Okay. The time you were -- testified in Texas that it
19 was excluded, what kind of exposure was that?
20 A. I believe it was herbicide.
21 Q. Okay. And that was a federal court, also, correct?
22 A. That was back to 1985. So I think it was, but I don't
23 know for sure.
24 Q. But it was excluded. Your testimony was excluded by a
25 federal court in the 1980's, correct?
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1 A. Well, again, it was excluded. I believe it was
2 excluded, but I don't know what court it was in.
3 Q. Okay. Let's go on to other courts. Your testimony
4 has been excluded in the State of New Mexico, has it not?
5 A. I'm uncertain. I know that the case was dismissed for
6 lack of evidence.
7 Q. Okay.
8 A. And I know I was testifying in that case.
9 Q. Was your testimony regarding electromagnetic
10 hypersensitivity in New Mexico?
11 A. Yes.
12 Q. Okay. And you were not -- you never got to the point
13 where you testified, correct?
14 A. Well, I testified in front of the Judge.
15 Q. Okay.
16 A. And the Judge was the only person hearing the case.
17 There was not a jury.
18 Q. The case was dismissed, correct?
19 A. Yes.
20 Q. Okay. Give me the other two times that you've talked
21 about it being excluded. What other two times was your
22 testimony excluded other than we've discussed here?
23 A. In California.
24 Q. Okay. What was the nature of your testimony in
25 California?
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1 A. It dealt with mold neurotoxicity.
2 Q. Okay. When was that?
3 A. About a year ago.
4 Q. Okay. What location in California?
5 A. Well, the incident took place in Santa Barbara County.
6 Q. Okay. Was that a state court in California, is what
7 I'm asking?
8 A. Yes.
9 Q. So a state court in California excluded your testimony
10 regarding mold neurotoxicity?
11 A. They wouldn't let anyone testify with regard to mold
12 neurotoxicity.
13 Q. Okay.
14 A. They would permit my testimony in neuropsychology, in
15 cognition, and in neurology, but not in mold neurotoxicity.
16 Q. Okay. So as to the mold neurotoxicity your testimony
17 was excluded, correct?
18 A. Yes. They would not permit anyone to testify to mold
19 neurotoxicity.
20 Q. And that included yours, right, Doctor?
21 A. Yes.
22 Q. And let's go on to the last one. The fifth that you
23 can remember. Where was that?
24 A. I'm not recalling.
25 Q. What type of case was that? You testified about five
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1 times. We have four. What's the fifth time?
2 A. I don't know. Remind me.
3 Q. Okay. Well, you testified to five times, so I'm
4 asking you. You don't remember?
5 A. I'm not recalling another.
6 MR. WOOTEN: I'm going to object, Judge. I think
7 he was rounding up or guessing.
8 Q. All right. And so let me ask you this. So what --
9 let me ask this. So what did you base your opinion on
10 regarding the exposure you've testified to, the neurotoxicity,
11 here today on Mr. Harris? What did you base your opinion on,
12 sir?
13 A. I based my opinion on my review of the records, my
14 evaluation of Mr. Harris, Dr. Kasper's records, my review of
15 the scientific literature, my expertise in neuropsychology and
16 neurotoxicology.
17 Q. Okay. Did you ever meet with Dr. Kasper regarding
18 this?
19 A. No.
20 Q. Have you ever met Dr. Kasper?
21 A. I don't know.
22 Q. Okay.
23 MS. YENNE: I'll pass the witness.
24 MR. WOOTEN: Nothing further, Judge.
25 THE COURT: Thank you very much, Dr. Singer. You
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1 may step down.
2 We're continuing on the record. Counsel for the
3 State, counsel for the defense, the Defendant are present.
4 Dr. Singer has left the room.
5 Mr. Wooten, I'll hear your argument.
6 MR. WOOTEN: Judge, we would present him as an
7 expert as a neuropsychologist and also a neurotoxicologist. I
8 believe he's eminently qualified as to either and as to both.
9 He's testified numerous times.
10 The fact that his testimony has been excluded
11 several times I don't think is a bar to him testifying here.
12 And we would also ask if the -- in the Court's ruling -- and I
13 think that Ms. Yenne's questions were appropriate and proper as
14 to this hearing as far as times when his testimony was
15 excluded, but we would also ask the Court to bring up or
16 address the subject of whether she would be able to go into
17 that in front of the jury. I'm not arguing that. I'm just
18 asking if the Court will give us a ruling or at least a motion
19 in limine on that so we can approach.
20 But back to Dr. Singer. I think he's qualified,
21 and we would present him as an expert and ask that his opinions
22 be allowed to be put in front of the jury.
23 THE COURT: Ms. Yenne.
24 MS. YENNE: Judge, he's not qualified as to
25 neurotoxicity. He's not a medical doctor. He's not a
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1 radiologist. He's not capable of reading an MRI. He's going
2 to be talking about physical effects. There is no information
3 that any medical testing from this man was done in any way, nor
4 that he would be competent to express an opinion regarding the
5 same.
6 Counsel asked him if he had testified before in
7 federal and state court. It is a legitimate area of inquiry
8 for the State to bring up the fact that -- and to have an
9 impression that he's testified in federal and state court and
10 that he's never been excluded is the wrong impression. He's
11 been excluded twice in federal court and twice in state court
12 regarding neurotoxicity. And that is very valid, and it's a
13 subject of his testimony here. If the Court chooses to allow
14 this man to testify, certainly it is a very proper area of
15 inquiry regarding whether his testimony was ever been excluded
16 before. It goes to his area of expertise. His testimony in
17 this regard about being excluded is highly suspect, and I am
18 greatly concerned about the information he's placed in the
19 record as to why it was excluded. It's certainly a proper area
20 of inquiry.
21 But we do not believe that this man is qualified.
22 Certainly if the Court considers him to be marginally qualified
23 to express an opinion, that should be limited as to
24 neurotoxicity and the State should certainly, of course, be
25 allowed to have all of the usual manners of cross-examination.
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1 And to try to exclude that in advance would be highly
2 misleading to the jury.
3 THE COURT: Your limitation that you asked for --
4 he's a neuropsychologist and a neurotoxicologist. You say his
5 testimony should be limited to neurotoxicity?
6 MS. YENNE: No. It should be -- the Court should
7 enter some limitations regarding neurotoxicity. He's been
8 excluded in those areas in federal and state court. If the
9 Court chooses to allow that he is minimally competent in
10 neurotoxicology, which by the way, there is no license for,
11 then certainly the areas of inquiry which the State brought up
12 would be legitimate in front of this jury.
13 THE COURT: All right. Mr. Wooten.
14 MR. WOOTEN: Judge, just very briefly, he's
15 testified -- I mean, the Court can do the math; but I'm
16 thinking over a hundred times.
17 Number two, I think it's -- he did testify that
18 he relied on a radiological report. Ms. Yenne brought that out
19 herself. So it's not that there is no medical evidence that he
20 relied on. He can't read an MRI, but he did rely on a report
21 by someone who has every indication is qualified to read an
22 MRI.
23 Lastly, I would say that my objection to her --
24 that would be bringing prior -- other court rulings in front of
25 this jury, which is improper.
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1 And number two, the reason I would ask for a
2 motion in limine is if he had testimony that was barred on
3 refrigerant gas, that doesn't have anything to do with this
4 case. If he had mold testimony barred, it doesn't have
5 anything to do with this case. I think at least to keep a --
6 from a 403 standpoint, that we would have to approach and have
7 a balancing test. And then I think under no circumstances
8 should the State be allowed to present a prior court ruling
9 from some other court, some other place. All we know is the
10 state.
11 Or really -- if we knew the court, it really
12 wouldn't make any difference because that's not this Court.
13 This Court -- that's basically going behind this Court's ruling
14 saying that he's qualified to testify, if this Court does. If
15 this Court say he's qualified in this 705 ruling, what they are
16 doing is going behind this ruling and bringing in another court
17 to say, yeah, but this court said something different. It's
18 almost like it's impeaching this Court's decision, and that's
19 improper and that's why you can't bring other court's ruling
20 into a trial and put them before the jury.
21 MS. YENNE: Judge, may I respond?
22 THE COURT: You may.
23 MS. YENNE: For the purpose of the record -- I
24 can introduce the cases, for purpose of this record, that he's
25 been excluded in; and the Court can make an appropriate
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1 decision whether the topics of his testimony mirror the topics
2 here in cases.
3 THE COURT: Well, do you have copies of them?
4 MS. YENNE: I have copies. I have the Viterbo
5 case. The Firstenburg case. May I get an extra copy real
6 quickly? Judge, let me make an extra quick copy of the other,
7 please. Thank you. We're getting the remaining one, Judge.
8 Certainly, it's the State's position that if
9 you're holding him out as an expert, his qualifications and his
10 prior expertise are subject to impeachment, the topics he's
11 testified on.
12 Judge, I'm going to quickly make that extra copy,
13 if I could?
14 Your Honor, it's, additionally, the State's
15 position that the topics that he's previously testified on that
16 are considered valid topics -- the State is not conceding the
17 neurotoxicity a valid topic. The topics that he's prone to
18 testify to before a court and represent as valid science go to
19 his motivation for compensation, and they should all be allowed
20 as to what this man is willing to testify to.
21 MR. WOOTEN: Judge, if they are going to give the
22 Court cases, do you think we can have those cites?
23 MS. YENNE: Sure. I'll be happy to. Let me get
24 them an extra copy.
25 Judge, for purpose of full disclosure, also,
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1 Mr. Wooten, there's a workers compensation on arbitration that
2 his testimony was excluded, also, regarding the exposure case.
3 THE COURT: Did you give me three opinions?
4 Okay. Thank you.
5 (A short recess was taken.)
6 THE COURT: All right. We're back on the record.
7 The record will reflect counsel for the State, counsel for the
8 defense, the Defendant are present.
9 Mr. Wooten, have you had time to review the
10 cases?
11 MR. WOOTEN: Yes, Judge.
12 THE COURT: Do you want to respond specifically
13 to the Fourth Circuit's opinion?
14 MR. WOOTEN: And that is in Zellers, Judge?
15 THE COURT: That's Zellers.
16 As to any knowledge or testimony as to what
17 levels would have to have been exposed to cause these
18 ill-effects?
19 MR. WOOTEN: I think Ms. Conn would have to
20 respond to that, Judge, because we split these cases up as we
21 looked at them.
22 THE COURT: Oh, okay. All right. Ms. Conn?
23 MR. WOOTEN: I'm sorry. I looked at the other
24 two.
25 THE COURT: Ms. Conn, on Page 14 of the opinion,
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1 I didn't hear any testimony as to his opinion or knowledge as
2 to levels that would be required. Do you know does he have
3 that knowledge?
4 MS. CONN: Dr. Singer?
5 THE COURT: Singer.
6 MR. WOOTEN: Oh. Well, I can respond to that,
7 Judge. I believe he does, Judge. In fact, he has done quite a
8 bit of independent research and brought reports, written
9 reports, on hydrogen sulfide neurotoxicity, which we've given
10 to the State, which is 13 pages. And also toxaphene
11 neurotoxicity, which is 9 pages. He prepared these actual
12 research documents for this case. So I believe that --
13 THE COURT: He is prepared to testify as to that?
14 MR. WOOTEN: Well, I could go ask him, Judge; but
15 I believe so, Judge. But I can't say for sure. I hate to tell
16 the Court something. We didn't go over it, but we do have
17 these research materials. I can talk to him. I can certainly
18 go into the levels that he feels and what he based the levels
19 on.
20 And what I would say, Judge, is in several of
21 these cases -- in fact, in all of these cases, Dr. Singer --
22 the underlying -- that one doctor's diagnosis was found
23 unreliable, as you're talking about in Zellers, and that made
24 his opinion, I guess for that court, unreliable.
25 EMS [sic] testimony, which is electric exposure,
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1 was found to be unreliable in another case.
2 And where did the other case go? There is three.
3 And then, Judge, Tordon 10K or Picloram
4 neurotoxicity in humans was found in the Viterbo case to be
5 unreliable.
6 I could ask -- I mean, if this court wants me to
7 ask about the levels that were found in -- about the levels
8 that were found in this case. But I would respectfully say to
9 the Court that if the Court is saying I read this and this
10 seems like something that y'all should have brought up because
11 I read another case, I think that's great. I mean, that's good
12 of the Judge. But I don't know that this case stands for, out
13 of the Fourth Circuit, that in a case of this magnitude if
14 levels are not brought -- does that make sense? I don't think
15 it's a precedent.
16 Now I think it sounds legitimate, to me, to go
17 into that. I see the Court's concern. I understand it. But I
18 would say I don't think that this case stands for Dr. Cooper
19 being excluded, that he can't answer --
20 MS. YENNE: Dr. Singer.
21 MR. WOOTEN: Dr. Singer. I'm sorry. I don't
22 know where that came from. I'm really at the end of my rope.
23 I promise.
24 Dr. Singer -- I don't think that case stands for
25 precedent that if we can't prove the levels, that Dr. Singer
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1 should be excluded based on that case.
2 Now if the Court were to make that decision on
3 its own, of course the Court can do that. But I just wanted to
4 make that distinction. Would you like me to go talk to
5 Dr. Singer? Or we could bring him back and ask him, Judge.
6 THE COURT: I'm going to go ahead and allow him
7 to testify to the limited basis that he said he's qualified to
8 attest to and to the things he testified to during this 705
9 examination. I think the magnitude of the case would require
10 me to allow that to be brought in. But the defense is entitled
11 to test his qualifications with regard -- I'm sorry. I am
12 looking at you.
13 MS. YENNE: We're to the point where we could
14 swap.
15 THE COURT: You can go into prior cases where he
16 has been found to be not qualified. Because some of this
17 language in these cases is pretty pointed as to going to his
18 qualifications to give toxicology-type opinions.
19 But I will allow him to testify, but I will allow
20 the State to go in on cross-examination to those other issues.
21 MR. WOOTEN: Yes, Judge. And for the record, we
22 would object.
23 THE COURT: I understand, and your objection is
24 overruled.
25 MR. WOOTEN: Okay. I understand, Judge.
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1 THE COURT: All right. Do y'all need 60 seconds?
2 MS. YENNE: Judge, 60 seconds. Thank you.
3 MR. WOOTEN: Judge, for the record, not to argue
4 with your ruling in any way. I'd just like to federalize my
5 objection.
6 THE COURT: You may do that, and then I'll rule
7 on it.
8 MR. WOOTEN: Thank you, Judge.
9 The 4th, 5th, 6th, 8th, 14th Amendments of the
10 United States Constitution; Article 1, Sections 3, 10, 13, 15
11 and 19 of the Texas Constitution. And we would renew our
12 objection based on those.
13 THE COURT: All right. And those objections will
14 be overruled.
15 MR. WOOTEN: Thank you, Judge.
16 (A short recess was taken.)
17 THE COURT: We're on the record. The record will
18 reflect that counsel for the State, counsel for the defense,
19 the Defendant are present. The jury has not entered the room.
20 Mr. Wooten, is there something you wish to put on
21 the record before the jury is brought in?
22 MR. WOOTEN: Yes, Judge. We -- there was a
23 recording of Mr. Anderson that has already been talked about
24 during his testimony, the full recording. We would like to
25 admit that recording, although I don't have my hands on it, as
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1 A. Yes.
2 Q. Okay. That was in the 1980's. Fair enough?
3 Mr. Viterbo was suing Dow Chemical, was he not?
4 A. I am uncertain.
5 Q. Okay.
6 MS. YENNE: May I approach, Judge?
7 THE COURT: You may.
8 Q. Maybe a copy of the case would jog your memory,
9 Doctor. State's Exhibit 232, I'm going to ask you to look at
10 Viterbo versus Dow Chemical. See if this jogs your memory just
11 a minute on the Tordon K?
12 MR. WOOTEN: Judge, I'm going to object. This
13 isn't past recollection recorded. He didn't generate this
14 document. This is improperly refreshing his memory.
15 THE COURT: Are you asking about the facts of the
16 case only?
17 MS. YENNE: Yes.
18 THE COURT: All right. Overruled.
19 A. What am I -- what's the question?
20 Q. Mr. Viterbo was suing Dow Chemical over pesticide
21 exposure, Tordon K, correct?
22 A. Tordon K is an herbicide.
23 Q. Okay. Mr. Viterbo was suing Dow Chemical over Tordon
24 K, an herbicide, right? Exposure?
25 A. Yes.
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1 Q. Okay. You rendered services in that case. Correct?
2 A. Yes.
3 Q. Okay. For Mr. Viterbo's side, correct? For the
4 plaintiff, correct?
5 A. I was hired by the plaintiff.
6 Q. Okay. And you were compensated for those services,
7 correct?
8 A. At least some compensation.
9 Q. Okay. And your scientific testimony was excluded by a
10 federal court in that case, was it not?
11 A. Could I see that document again?
12 Q. Sure.
13 A. The defendant motion for summary judgment was granted.
14 Q. Okay.
15 A. And the Court made an opinion.
16 Q. Okay. The opinion was that your scientific testimony
17 was so lacking in probative value, correct, that it needed to
18 be excluded?
19 A. Could you please return that to me?
20 Q. Sure. State's Exhibit 232, for the purposes of the
21 record, is the Court's finding.
22 MR. WOOTEN: Judge, once again, this is an
23 improper refreshment of recollection. It's not his. She's
24 asking him to read off a document that's not in evidence.
25 THE COURT: I won't allow him to read to the jury
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1 what's there; but to refresh his recollection to answer the
2 question, he can do so.
3 A. The offered expert testimony.
4 Q. Yours was excluded, was it not?
5 A. Yes.
6 Q. Okay. Let's go on to some other times your testimony
7 has been excluded, Doctor. Let me go to last year, 2012. It's
8 been excluded in New Mexico, has it not?
9 A. Yes.
10 Q. Okay. That would be the Firstenburg case.
11 Mr. Firstenburg was suing his neighbor, correct, for
12 electromagnetic sensitivity. He was exposed to electromagnetic
13 forces. He was suing his neighbor, correct?
14 A. Yes.
15 Q. Okay. That was -- he alleged that the neighbor had
16 exposed him to cell phone usage, computer usage and such,
17 correct? Mr. Firstenburg alleged that, did he not, in New
18 Mexico?
19 A. I don't recall computer usage.
20 Q. Okay. Well, what usage was Mr. Firstenburg alleging?
21 A. I -- I need some instruction here because the case is
22 under appeal. I'm not certain that I can discuss it.
23 Q. Okay. The district court in New Mexico excluded your
24 scientific testimony on electromagnetic hypersensitivity, did
25 they not, Doctor, last year?
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1 A. I recall that the case lost on summary judgment.
2 Q. Okay.
3 MS. YENNE: Can I have just a second, Judge?
4 Q. Okay. Just for the purpose of jogging your memory,
5 State's Exhibit 233, can you recognize or remember that the
6 court in New Mexico, the First Judicial District Court, last
7 year, September, 8th -- September, 2012, excluded your expert
8 testimony in the Firstenburg case?
9 A. The defendant's motion to exclude --
10 MR. WOOTEN: Objection to him reading from it.
11 THE COURT: Doctor, don't read. Just use it to
12 refresh your recollection and then answer the question.
13 A. I believe it's yes.
14 Q. Okay. Let me go a little further. Your testimony has
15 also been excluded in the United States Court of Appeals for
16 the Fourth Circuit, a Virginia case, Deborah Zellers versus
17 Rite Aid of Virginia. Correct?
18 A. Yes.
19 Q. Okay. That case she was suing -- Ms. Zellers was
20 suing for refrigerant exposure. Is that correct?
21 A. Yes.
22 Q. Okay. Suing her former employer. Is that a fair
23 statement?
24 A. Yes.
25 Q. Okay. You provided services to Ms. Zellers. Is that
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1 correct?
2 A. Yes.
3 Q. Okay. And you took a position that Ms. Zellers had a
4 nervous system dysfunction from neurotoxicity consistent with
5 and caused by poisoning with refrigerant containing
6 fluorocarbons. Correct?
7 A. Yes.
8 Q. And your testimony was excluded, was it not?
9 A. Yes.
10 Q. Okay. You've also had your testimony excluded in
11 California?
12 A. Yes.
13 Q. That's regarding toxic mold exposure. Neurotoxicity
14 from mold exposure, correct?
15 A. Yes.
16 Q. And you, likewise, have had your testimony excluded in
17 worker's compensation cases. Remember the Dust Off case?
18 A. No.
19 Q. Okay.
20 MS. YENNE: I'll pass the witness.
21 THE COURT: Mr. Wooten.
22 MR. WOOTEN: Nothing further, Judge.
23 THE COURT: Thank you very much, Dr. Singer. You
24 may step down.
25 The Rule has been invoked. You understand the
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1 jacket to Kirk Coleman. Well, we know -- we watched that motel
2 video. You watched it. We played it for you. He had on a
3 camouflage jacket. You heard it in the 9-1-1 call. Darla said
4 camouflage jacket. We know he had on a camouflage jacket. He
5 tells Kirk Coleman it was a blue jacket. ILA 30 -- Local 30 on
6 it. So watch that.
7 Let's talk about his childhood or poor
8 upbringing. Lots of people grew up poor. Lots of people had a
9 bad childhood. But let's look at what the evidence has shown
10 us. Look at what Dr. Farrell says about his bad childhood, and
11 then look at Dr. Kasper's CTQ. They are in dispute. They are
12 in conflict. One is saying he had a really bad childhood. The
13 other one is saying that it really wasn't that bad. And
14 Dr. Kasper got her answers from the Defendant. Then look at --
15 I mean, Mack Selman. He came in here and he testified long
16 before the Defendant was charged with Capital Murder when he
17 was on probation, he talked about how he would not change
18 anything about his childhood. Does that sound like someone who
19 had a bad childhood? Does that sound like something that's
20 mitigating? No.
21 Exposure to pesticides and toxic chemicals.
22 Let's talk about that. Where is the medical proof for any of
23 this? We've heard from Dr. Kasper and Dr. Singer. Neither one
24 of them are medical doctors. And it was Dr. Singer who is
25 saying that he was exposed to pesticides and exposed to toxic
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1 chemicals. No medical evidence to support it. He spent a
2 total of eight hours with the Defendant before he formed this
3 opinion that he had been exposed to these things. Go back and
4 look at the book-in sheets and the medical from the jail. The
5 only mention of any kind of an injury is an injury to a foot or
6 ankle and an injury to a knee. There is nothing in there about
7 being exposed to pesticides as a child. There is nothing in
8 there about being exposed to toxic chemicals, to sandblasting,
9 to any of this. Nothing in there to support that.
10 And how -- if you even thought that that was, how
11 does that lessen his blame for what he did? He stabbed an
12 85-year-old man in his home eight times. He was minding his
13 own business. He stabbed Darla Wilcox 24 times, who all she
14 did was answer the door to the doorbell. I mean, how does any
15 of this lessen his blame?
16 Cocaine usage. Well, we know that he used
17 cocaine. He used crack cocaine because we've had witnesses
18 that came in and said, oh, he used cocaine. Crack cocaine. I
19 smoked crack cocaine with him. Amy Spears. Jean Rhodes. So
20 we know he did use cocaine. How does voluntarily using drugs
21 lessen your blame for a crime as brutal as the one that he
22 committed? How does that lessen your blame? It doesn't. I
23 submit it doesn't.
24 Good worker at the Port. They brought you a lot
25 of the -- the defense brought you a lot of witnesses who said
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1 incompetent. Alton Murphy, who stabs a woman 20 times in
2 Florida is insane. That's her previous testimony. Clifford
3 Davis stabbed his elderly 77-year-old grandfather, strangled
4 his mother, did other things to his mother; and she said he had
5 a borderline personality disorder and bipolar. I would like to
6 know what Dr. Kasper considers more than borderline. Somebody
7 stabbing a 77-year-old man to death, strangling his mother is
8 not just borderline. It's way out there. But she did all this
9 for money.
10 She ordered an MRI and she never read it, didn't
11 know where it came and wasn't qualified to read it. And she
12 testified there is other psychiatrists and doctors in the area
13 that could have interpreted it.
14 And, you know, I guess it takes a lot of nerve
15 when you're paid that much as Dr. Singer to come in and testify
16 to what these guys are testifying to. And so I call what we
17 used to call it in the old days, snake oil salesmen. They used
18 to sell you snake oil to cure all your ailments. And it was
19 just a fraud. Well, now we have fancy forms of strange snake
20 oil. They're called neuropsychologists. And, you know,
21 they're called neuropsychologists because you can't find any
22 self-respecting medical doctor that would have the nerve to
23 come in and testify to this.
24 But I found it interesting that Dr. Singer, he
25 had only met the Defendant 15 days ago. Really? But how can
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1 you ring up like $30,000 worth of bills when you only met the
2 Defendant 15 days ago? You know? His testimony has been
3 excluded in so many courts he just about can't count. And now
4 he says he's only called to testify one or two times. Yes,
5 because his science is not reliable. He checked out nothing in
6 this case. This is a guy who has the nerve to call scientific
7 evidence cell phone exposure on a lawsuit. When one neighbor
8 is suing another neighbor. This man will find a toxin anywhere
9 for money. He's not a medical doctor. He's not a neurologist.
10 He's not a psychiatrist. And, you know, he didn't even speak
11 to any of the chemical companies. And look at all the records
12 he did not review. Do you consider that thorough? No.
13 So let me go a little further. Evidence that a
14 juror might regard as reducing the Defendant's moral
15 blameworthiness. There is none. You know, you have some
16 alleged drug addiction, alleged mitigating evidence. We're
17 going to finish up. Alleged drug addiction. There is a lot of
18 drug usage but, you know, it's funny. When they asked, I
19 believe, Marcus Lincoln is he a drug addict, he paused. And he
20 knows him very well. This man uses cocaine when he wants to
21 use it.
22 Where is the toxic chemical exposure? Did you
23 ever hear one person that said the Defendant was exposed to
24 toxic chemicals who actually saw it? Even his sister just said
25 he used to come in with dirty clothes from the fields; and that
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NO. 67063
THE STATE OF TEXAS § IN THE DISTRICT COURT OF
vs. § BRAZORIA COUNTY, TEXAS
JAMES HARRIS, JR. § 149TH JUDICIAL DISTRICT
CHARGE OF THE COURT
MEMBERS OF THE JURY:
The defendant, JAMES HARRIS, JR., has entered a plea of "GUlLTY" to the
offense of CAPITAL MURDER, as alleged in the indictment. This offense is alleged to
have been committed in Brazoria County, Texas, on or about the 14TH day of January,
2012.
To this charge the defendant has pleaded "GUlLTY" and he has persisted in
entering such plea notwithstanding the Court, as required by law, had admonished him of
the consequences of the same; and it plainly appearing to the Court that the defendant is
competent and sane and that he is not influenced to make this plea by any consideration
of fear, nor by a persuasive or delusive hope of pardon prompting him to confess his guilt,
said plea is by the Court received.
You are therefore instructed to find the defendant guilty of CAPITAL MURDER, as
charged in the indictment.
The mandatory punishment for the offense of Capital Murder of which the
defendant has pled guilty is by imprisonment in the Texas Department of Criminal Justice,
Institutional Division, for life without parole or death.
In deliberating on the issues submitted you shall consider all evidence admitted at
the guilt or innocence stage and the punishment stage, including evidence of the
1
.1387.6.
01/28/2015
James Harris Appendix Page 000051 10
1 first page, Your Honor.
2 THE COURT: All right.
3 MS. CONN: Starting with, To this charge the
4 Defendant has pleaded guilty, et cetera.
5 MS. YENNE: Yes.
6 MS. CONN: There is a semicolon after the
7 consequences of the same, and I would ask that the Court stop
8 the paragraph at that semicolon. The jury is not to decide
9 competence or sanity. That has not been an issue in the case.
10 They are not supposed to consider any undue influence regarding
11 the Defendant's plea. The word "pardon" is prejudicial, and
12 should not be considered by the jury. All of that second part
13 of that paragraph and/or sentence is prejudicial and
14 inappropriate for the jury to consider. It's a comment on the
15 weight of the evidence. It's confusing. It is not neutral,
16 and not principle as required by Gregg and Tuilaepa versus
17 California.
18 THE COURT: All right. Overrule that objection.
19 MS. CONN: All right. And the very last line of
20 this Page 1, "in deliberating on the issues submitted you
21 should consider," we did talk about that that language does
22 track 37.071; but since he pled guilty, Your Honor, and the
23 statute does not consider or give a special instruction in the
24 event that the Defendant pleads guilty -- the statute was
25 written for a person in the normal course of events where there
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1 doing very good about giving verbal responses. Some people
2 give me nods of the head or shakes, but you've been doing very
3 good. If you'd just continue that because Mrs. Friedrichs, the
4 court reporter, is taking down all these proceedings and it's
5 just much easier for her to give a verbal -- record a verbal
6 response than a shake of the head or an uh-huh or something
7 like that. Will you do that for me?
8 VENIRE PERSON: Yes.
9 THE COURT: Thank you very much.
10 All right. Ms. Yenne, you may proceed.
11 BRENDA WOODS,
12 having been first duly sworn, testified as follows:
13 VOIR DIRE DIRECT EXAMINATION
14 BY MS. YENNE:
15 Q. Good morning, Ms. Woods. How are you?
16 A. Good morning. I'm fine.
17 Q. My name is Jeri Yenne, and I'm the District Attorney
18 in Brazoria County. Mary Aldous is my first assistant. She
19 and I represent the State of Texas.
20 Jay Wooten and Mary Conn represent the Defendant,
21 James Harris, Jr. Okay?
22 As the Judge told you, this is Individual Voir
23 Dire; and it's the only time lawyers have a chance to
24 individually ask potential jurors questions because it's the
25 nature of the charge of Capital Murder with a penalty range of
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1 life without parole or the death penalty. Okay? That would be
2 why we have a chance to interview you individually. Okay?
3 A. Okay.
4 Q. So the only time -- the only answer that we want is
5 your honest answer. We're trying to pick a fair and impartial
6 jury for the State and the defense. Okay?
7 And as the Judge told you, the only wrong answer
8 would be one that wouldn't be what you honestly feel. So I'm
9 going to pick your brain and ask you about some legal
10 principles and things to see if you can honestly follow the
11 law. Some people say that they can in certain circumstances,
12 some they can't. Okay? And there are no right or wrong
13 answers.
14 MS. YENNE: May I approach, Judge?
15 Q. I'm going to pick your brain just a little bit,
16 though. I'm going to hand your questionnaire to you, if I can.
17 A. Okay.
18 Q. And the court reporter is taking down everything you
19 have to say, so you might have to talk just a little louder.
20 A. Okay.
21 Q. Thank you.
22 You're a benefits manager?
23 A. Yes.
24 Q. Okay. How big an organization?
25 A. We have about 370 employees and over 2,000 volunteers.
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1 Q. Wow. Human resources is becoming a complicated area
2 these days, is it not?
3 A. It is.
4 Q. In the last 10 years, even at the County, I have seen
5 it become more and more complicated. Is that a fair
6 assessment?
7 A. That is fair.
8 Q. Do you navigate a lot of things? I notice that you
9 went to some FMLA conferences and stuff.
10 A. Health care reform has made my job more complicated
11 and complex.
12 Q. And probably adds an additional full-time job.
13 A. It is a full-time job.
14 Q. Just that aspect?
15 A. Right. The compliance.
16 Q. Wow. One of the things I noticed from your
17 questionnaire that -- and I want to make sure I understand.
18 You are in favor, at times, of the death penalty for certain
19 circumstances?
20 A. Yes, I am.
21 Q. Okay. So let me go a little further. I wanted to
22 pick your brain on a couple questions first, and then I'm going
23 to launch into a bigger presentation. But some of the things
24 that you said I found interesting, so I want to pick your brain
25 just a bit.
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1 Page 16. Could you turn to page 16, Number 91?
2 Are you there?
3 A. Yes, I am.
4 Q. Do you believe the type of victim or status of a
5 victim should affect the punishment in a case?
6 You had indicated, Yes; and you wrote something
7 that I wanted to pick your brain about. Why or why not? "If
8 you're dealing with a minor or disabled person or senior
9 citizen, it should affect the punishment."
10 A. Yes.
11 Q. Okay. Can you tell me your views on that a little
12 bit? Do you feel that the individuals that you listed are more
13 unable to defend themselves?
14 A. Yeah. That is my belief, that they cannot defend
15 themselves properly. You know, when you're dealing with a
16 small child, a disabled person, they just don't have the
17 strength as an ordinary person would have. So that's --
18 Q. Disabled senior citizen, also?
19 A. Disabled senior citizens, also.
20 Q. Okay. In your mind is that something that you would
21 factor in if they were a victim, a more defenseless victim?
22 A. Yes.
23 Q. Okay. One of the things I noted on page 15 -- could
24 you go back? I'm going to stay in the same area a little bit.
25 You had put under Number 82: Do you feel that
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1 prison serves the public in rehabilitating inmates?
2 And you had put, No. Correct?
3 A. That is correct.
4 Q. Okay. Is that your belief today? Because, you know,
5 we threw a bunch of questionnaires at about 200 people,
6 Ms. Woods; and they had to answer questions without -- let me
7 put it this way. We handed them to people cold; and there are
8 times when people say, well, you know, on reflecting on that, I
9 have a different view.
10 But you had put, "I don't think so because they
11 tend to repeat similar crimes, in my opinion."
12 A. That is correct.
13 Q. Okay. So when someone continues to repeat crimes, is
14 that something that you think is significant that you will take
15 note of in sentencing?
16 A. Yes, I would.
17 Q. Okay. You also put, basically, on Number 84: What
18 are your feelings in general about the criminal justice system?
19 You said, I do believe that it is a fair system.
20 A. That's correct.
21 Q. But it said: What would you change about the system
22 if you could?
23 You put, The cost to the system.
24 Now I'm smiling because you are a benefits
25 manager. Tell me how you would change the cost to the system.
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1 Just give me your perspective on that.
2 A. My perspective would be instead of having a person in
3 prison for a long time, that you can try some alternative way
4 to rehab them to keep the cost down.
5 Q. Okay. That's a fair statement.
6 A. You know, if they are not a violent criminal, you
7 know, you might, you know, let them loose, you know, and do --
8 Q. Drug rehab?
9 A. Yeah, something like that.
10 Q. Okay. Do you have a different view for violent
11 criminals?
12 A. Yeah. That would be totally different.
13 Q. Okay. And let's go a little further. If you go to
14 page 19 of your questionnaire, it says -- we're talking about
15 if you were on a jury to sentence a defendant who has already
16 been convicted of Capital Murder. If the law gives you a
17 choice of death or life in prison without parole, you checked,
18 I would consider all the penalties provided by law and the
19 facts and circumstances of the particular case.
20 A. That's correct.
21 Q. And that's your view today?
22 A. That's my view today.
23 Q. Okay. And the death penalty would, in your mind, also
24 be one of the those appropriate considerations one way or the
25 other?
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1 A. That is correct.
2 Q. Okay. Let me go a little further. Can you go to page
3 21 for a minute?
4 And I -- you know what? We -- it's hard for
5 anybody to answer these questions because they are pretty black
6 and white to me. There is lots of times you'd like probably an
7 in between to agree or disagree. You know what I'm saying?
8 But the jurors -- on page 21 you had put, The
9 death penalty is sometimes more compassionate than life without
10 parole. You had agreed with that?
11 A. I agree with that.
12 Q. So tell me your perspective on that. When would you
13 think it would be?
14 A. In violent crimes.
15 Q. Okay. Also can you go back to page 20 and Number 109
16 on the agree or disagree? You believe that capital punishment
17 is absolutely justified at times?
18 A. I do agree with that.
19 Q. Okay. And by capital punishment I'm referring to the
20 death penalty. Was that what your thought was? I wanted to
21 make sure that I understood you.
22 A. Yes.
23 Q. Okay. And let me go a little further. Now I notice
24 that you worked for Catholic Charities?
25 A. Yes.
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1 Q. That's a large organization as you've described it. I
2 don't want to pick your brain too much.
3 And by the way, Mr. Wooten, Mr. Aldous, Ms. Conn,
4 myself, I wouldn't want to be in your spot there. Let me put
5 it this way. I respect our potential jurors because we are
6 picking your brains, given the nature of the case.
7 Could I ask you -- but you put in your
8 questionnaire that you did not attend church.
9 A. That is correct.
10 Q. Okay. Do you have a religious belief? Did you attend
11 church? Because I know you work for Catholic Charities, so I'm
12 trying to pick what yours is.
13 A. 2005 I stopped going to church. I was a member of a
14 Baptist church at that time, and since then I just stopped
15 going.
16 Q. Okay. All right. Fair enough.
17 Also on page 16 of 30 -- by the way, I also
18 noticed that you -- do you like to sew?
19 A. I do.
20 Q. That's a lost art and -- becoming a lost art, and I so
21 appreciate it. One of the things I've always wanted to do if I
22 ever had the opportunity was actually get good at sewing. I
23 actually sewed my sock to a skirt one time I was wearing when I
24 was mending a sock, and I don't think sewing was in my future.
25 When I mended that sock and it was attached to the skirt, I
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1 know that sewing was not going to be what I was going to be
2 doing for a living.
3 And you also said you watched the Antiques
4 Roadshow?
5 A. Yes.
6 Q. Do you have -- just a curiosity question. Do you have
7 any antique sewing machines, like the old Singers? I have one
8 at home.
9 A. Well, I have a Kenmore that's --
10 Q. Antique?
11 A. Over 30. Let's see. It's over 35 years old.
12 Q. Okay. So do you actually sew some of your own
13 clothes?
14 A. Yes, I do.
15 Q. Wow. Okay. Do you -- can you still find patterns
16 somewhere?
17 A. I custom make my patterns.
18 Q. Wow. I notice that on page 16, Number 88: Should
19 people accused of murder be treated differently than people
20 accused of other crimes? And you feel those should be harsher
21 sentences?
22 A. Yes.
23 Q. Okay. One of the questions -- also on Question No. 65
24 on page 12, if I can, and then I'm going to launch into -- it
25 said: What do you think -- Question No. 65 -- are the reasons
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1 that people commit most of the violent crimes in our society?
2 And you put, The personal choices they make?
3 A. That is correct.
4 Q. Okay. Is that still your belief today?
5 A. It is my belief.
6 Q. Okay. I probably agree with that belief.
7 Okay. Have you ever at any time been opposed to
8 the death penalty, or have you always thought of it as an
9 appropriate punishment if the circumstance fits?
10 A. If the circumstance fits.
11 Q. Okay. Let me go a little further. There was one
12 concern that you had if you were selected as a juror. Page 28.
13 I wanted you to expound on that just a little bit. It said,
14 Number 153: What would be your greatest concern if you were to
15 be selected as a juror in a capital case?
16 You put, Media stalking and my family privacy.
17 A. That is correct.
18 Q. Okay. Can you give me a little bit of perspective on
19 that, please?
20 A. I would not want the media to approach me. As far as
21 my family, for them to have privacy because they work and go to
22 school. You know, I just wouldn't want any attention drawn to
23 them or myself.
24 Q. It seems like these days there is almost no privacy.
25 A. Right.
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1 Q. But lucky that I'm not really on the internet much
2 because as one of my family members says, you can't get out of
3 that cyber world once you're in it, it seems like.
4 A. Right.
5 Q. So I've chosen not to get in, Ms. Woods.
6 A. Uh-huh.
7 Q. I may have a few other questions about your
8 questionnaire when I finish up. Okay?
9 So this is the State of Texas versus James
10 Harris, Jr.; and the charge is Capital Murder. Okay? It
11 alleges on or about the 14th day of January, 2012, in Brazoria
12 County, Texas, the Defendant did then and there intentionally
13 cause the death of an individual, to-wit: Alton Wilcox, by
14 stabbing Alton Wilcox with a knife, and the Defendant was then
15 and there in the course of committing or attempting to commit
16 the offense of Robbery of Darla Wilcox. Okay?
17 It also alleges on or about the 14th day of
18 January, 2012, in Brazoria County, Texas, the Defendant, did
19 intentionally cause the death of an individual, Alton Wilcox,
20 by stabbing Alton Wilcox with a knife, and the Defendant was
21 then and there in the course of committing or attempting to
22 commit the offense of Burglary of a Habitation owned by Darla
23 Wilcox.
24 Also, on or about the 14th day of January, 2012,
25 before the indictment was presented, the Defendant
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1 intentionally caused the death of Alton Wilcox by stabbing
2 Alton Wilcox with a knife, and the Defendant was then and there
3 in the course of committing or attempting to commit the offense
4 of Burglary of a Habitation owned by Alton Wilcox. Okay?
5 It's one charge of Capital Murder but different
6 ways to commit it, during the course of burglary or during the
7 course of robbery. Okay?
8 A. Okay.
9 Q. All right. Now let me tell you what murder is.
10 Murder is intentionally causing the death of an individual,
11 Ms. Woods. No justification, no excuse, no self-defense, no
12 defending other people, no defending property, no insanity, no
13 mental health issue. Cold-blooded I intended to kill them.
14 Let's say a neighbor gets mad at another
15 neighbor, okay, and decides they're going to go kill them.
16 They get a gun, they approach them on the street, and they
17 shoot them to death. They intended the result. Cold-blooded,
18 non-justified killing. Okay?
19 A. Okay.
20 Q. I just want to give you that, all right, because some
21 people ask about self-defense. The definition of murder is non
22 justified.
23 So let's go a little further. That's regular
24 murder. What raises it up to Capital Murder? I call it --
25 it's murder plus. Capital Murder is murder plus something else
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1 because it raises it to the potential for the death penalty.
2 And so what raises it up? Capital Murder could
3 be intentionally killing a police officer in the line of duty,
4 knowing they are a police officer. Intentionally killing a
5 child under the age of 10. Intentionally killing more than one
6 person during the same criminal transaction. I walk into a
7 convenience store and I start shooting people up and I want to
8 kill them, more than one person. Intentional murder for hire.
9 Somebody hires somebody to kill somebody else intentionally.
10 Or there is this kind of Capital Murder. The
11 person intentionally commits murder in the course of committing
12 or attempting to commit kidnapping, burglary, robbery,
13 aggravated sexual assault, arson, obstruction or retaliation,
14 or terroristic threat. Okay?
15 A. Okay.
16 Q. So remember what raised that intentional killing up to
17 Capital Murder was it was during the course -- in the
18 indictment, as alleged -- of a burglary or robbery. Okay?
19 A. Okay.
20 Q. All right. Let's go a little further. And as I said,
21 the person acts intentionally or with intent with respect to a
22 result of his conduct when it is his conscious objective or
23 desire to cause the result. Cause the death. Okay?
24 A. Okay.
25 Q. All right. Let me go a little further. The
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1 prosecution has the burden of proving the Defendant guilty and
2 it must do so by proving each and every element of the offense
3 beyond a reasonable doubt. It is not required that the
4 prosecution prove guilt beyond all possible doubt. Okay? It
5 is required that the prosecution's proof excludes all
6 reasonable doubt concerning the Defendant's guilt. Okay?
7 A. Okay.
8 Q. So my question for you is could you follow that
9 instruction?
10 A. Yes, I can.
11 Q. Could you hold me to my burden of beyond a reasonable
12 doubt?
13 A. Yes.
14 Q. Oh, I noticed in your questionnaire you have a
15 brother-in-law in -- is it law enforcement?
16 A. Yes.
17 Q. Okay. Where does your brother-in-law work?
18 A. The Harris County Adult Probation Department in
19 downtown Houston.
20 Q. How long has he been working there?
21 A. He retired out of the military. About 17, 18 years I
22 would say.
23 Q. Okay. You also have relatives that have been in the
24 military?
25 A. Yes.
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1 Q. Did your brother-in-law retire from the military?
2 A. Yes, he did.
3 Q. So he's a retired vet?
4 A. Yes.
5 Q. Was he in the military like 20 years or something?
6 A. 23 years.
7 Q. Okay. Do you believe that as a veteran we should have
8 respect for our veterans?
9 A. Yes.
10 Q. They hold a special status in our society?
11 A. Yes.
12 Q. Okay. One other question on your questionnaire.
13 Before I keep going, I want to double-check something. I want
14 to catch your true feelings. Okay?
15 On the agree or disagree section just a couple
16 questions, and then I'm going to launch into it a little
17 further. On page 20 you put, We must have capital punishment
18 for some crimes. You agreed with that.
19 A. Yes.
20 Q. Okay. You still agree with that today?
21 A. Yes, I do.
22 Q. Okay. And on page 21 you also put, Capital punishment
23 is just and necessary. You agreed with that.
24 A. Yes.
25 Q. Okay. And that meaning the death penalty, right?
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1 A. Yes.
2 Q. There is one I was going to ask you about. Capital
3 punishment is justified only for premeditated murder. You
4 agreed with that.
5 A. Yes, I did.
6 Q. Okay. Let me ask this. If somebody formed an intent
7 on the spot to kill somebody, they flew into a rage in the
8 course of a burglary or robbery or a kidnapping or something
9 like that, would you believe that capital punishment were
10 justified for that, the death penalty?
11 A. Yes, I would.
12 Q. Okay. So let's go a little further from beyond a
13 reasonable doubt. The State is required to prove to you the
14 elements alleged in the indictment. You know, the intentional
15 killing of Alton Wilcox during the course of burglary or
16 robbery. Okay?
17 A. Okay.
18 Q. There will always be inconsistencies, Ms. Woods, in
19 any case.
20 A. Okay.
21 Q. Let me give you an example. Pretend there is a car
22 wreck outside the courthouse. Okay? The guy is charged with
23 running a red light. Ten people saw him do it. He admits he
24 did it. He's charged with running a red light, and I prove to
25 you beyond a reasonable doubt he ran the red light. There will
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1 always be people -- let's say some of the witnesses -- they all
2 agree that he ran the red light. Okay?
3 A. Okay.
4 Q. But some of the witnesses -- we used to have watches.
5 We don't have watches anymore -- they disagree on the time.
6 Was it 3:20 or 3:30? Okay? Was it drizzling or misting? Am I
7 making sense?
8 A. Yes.
9 Q. There is always going to be -- human beings are always
10 going to have -- there is going to be inconsistencies in any
11 case. They may not go to the elements of what's alleged.
12 Okay?
13 A. Okay.
14 Q. All right. Let me go a little further. Levels of
15 burden of proof. You said you could hold me to beyond a
16 reasonable doubt. So let me go over that.
17 Now the lowest level of burden of proof is
18 preponderance of the evidence. Means the greater weight and
19 degree of credible evidence. Civil cases seeking money or
20 damages. That's kind of like just tipping the scales. When
21 somebody sues somebody else, they just have to tip those
22 scales. Okay?
23 A. Okay.
24 Q. Clear and convincing evidence is the next highest
25 burden of proof in the civil system. It's that measure or
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1 degree of proof that produces a firm belief or conviction that
2 the allegations sought to be established are true. Okay?
3 That's a higher burden. CPS is trying to take your kid away.
4 Okay?
5 A. Okay.
6 Q. And that should be a higher burden for that, shouldn't
7 it?
8 A. Yes.
9 Q. Than a car accident?
10 And then there is beyond a reasonable doubt.
11 That's the highest burden of proof, criminal burden of proof.
12 Okay?
13 A. Okay.
14 Q. There is no definition, though. Isn't that
15 interesting? The highest burden of proof has no definition.
16 But would you agree with me that beyond a reasonable doubt is
17 higher than those two?
18 A. Yes.
19 Q. Okay. Let me go a little further. All persons are
20 presumed to be innocent and no person may be convicted unless
21 each element of an offense is proved beyond a reasonable doubt.
22 The fact that a defendant has been arrested, confined, or
23 indicted for or otherwise charged with an offense gives rise to
24 no inference of guilt at his trial. Okay?
25 A. Okay.
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1 Q. So as he sits here today, can you presume Mr. Harris
2 to be innocent of Capital Murder?
3 A. Yes.
4 Q. Okay. So you can follow that instruction?
5 A. Yes, I can.
6 Q. Okay. Let me go a little further. The Defendant
7 never has a burden of proof. The law does not require a
8 defendant to prove his innocence or produce any evidence at
9 all.
10 Some people say, oh, I wish the defendant would
11 have brought me some witnesses. No defendant in any criminal
12 case has to produce any evidence. Okay?
13 A. Okay.
14 Q. Okay. So could you follow that instruction?
15 A. Yes.
16 Q. Okay. Now if any of us were accused of a crime, we
17 have a Fifth Amendment privilege not to testify. In other
18 words, against self-incrimination.
19 People say, well, if it was me, I'd have to talk.
20 I'd have to say something. But every defendant, no matter what
21 they are charged with, a misdemeanor or a felony -- or if you
22 or I were accused of something, we have a right, a Fifth
23 Amendment right, not to testify or provide any information
24 against ourselves. So every defendant in any criminal case has
25 a right not to testify. Okay? I never know whether someone is
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1 going to testify or not.
2 Can you agree with me that sometimes people are
3 better off before they open their mouth, Ms. Woods?
4 A. Yes.
5 Q. Okay.
6 A. I can agree with you on that.
7 Q. Okay. Let me be honest with you. I bet as a benefits
8 manager they would be better off before they open their mouth.
9 A. Yes.
10 Q. The things you probably see in human resources are
11 probably very similar to law enforcement.
12 A. Yes.
13 Q. Let me ask you a question. Just a curiosity question.
14 Do some of the things you see in human resources over the last
15 10 or 15 years or maybe 5 -- I'm going to say 5 to 10 years,
16 are you seeing things from employees that you thought you would
17 never see?
18 A. Yes.
19 Q. Taking advantage of situations that you thought you
20 would never see?
21 A. Yes.
22 Q. Okay. It's disappointing, isn't it?
23 A. Very.
24 Q. Very. Okay. I've had the same experience.
25 So can you follow that instruction that every
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1 defendant in any criminal case has a right not to testify and
2 you cannot consider it for any reason?
3 A. Yes.
4 Q. Okay. Now if you had to vote right now, you would
5 have to vote not guilty because you haven't heard any evidence
6 yet, right?
7 A. Correct.
8 Q. So let me ask you this. I have the burden to prove to
9 you beyond a reasonable doubt the elements in the indictment.
10 Okay? Let's say I was having a bad week and I didn't do it,
11 Ms. Woods. Okay? And I just fell on my face. I forgot to
12 prove to you the county it happened in or during the course of
13 burglary or robbery. I mean, it's my job to prove it to you.
14 You know? Could you find the Defendant not guilty of Capital
15 Murder if I didn't prove to you beyond a reasonable doubt the
16 elements of Capital Murder?
17 A. Yes.
18 Q. If I did prove to you beyond a reasonable doubt the
19 elements of Capital Murder, could you find the Defendant
20 guilty?
21 A. Yes.
22 Q. Okay. Now the indictment alleges one charge of
23 Capital Murder of victim Alton Wilcox with alternate methods of
24 committing the same offense, by robbery or by burglary. As
25 long as the jury unanimously agrees beyond a reasonable doubt
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1 that the elements of Capital Murder are met, the jury does not
2 need to agree unanimously on which manner and means. As long
3 as I showed you that he intentionally caused the death of Alton
4 Wilcox by stabbing him with a knife, six of the jury can agree
5 that it was in the course of burglary and six of the jury can
6 agree that it was during the course of robbery. Am I making
7 sense?
8 A. Yes.
9 Q. Okay. Direct evidence. If you sat on a jury, you
10 would get evidence -- certain types of evidence. Direct
11 evidence is evidence that directly demonstrates the ultimate
12 fact to be proven. Eyewitness testimony, video of a crime,
13 confession. Okay?
14 A. Okay.
15 Q. Those are some examples.
16 Now I hate this definition, but this is what it
17 is. Circumstantial evidence. Evidence that is direct proof of
18 a secondary fact which, by logical inference, demonstrates the
19 ultimate fact to be proven.
20 Let me give you an example. There's a child by
21 the pool. Actually, there is a little 5-year-old little boy.
22 He wants to go swimming. He's got a backyard pool. His
23 parents say not right now. You can go later.
24 They go back to their household work. The next
25 thing you hear is the pitter-patter of little feet going down
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1 the stairs, the back door opening, they hear a big splash.
2 Parents go outside and the little boy is in a lawn chair with a
3 swimsuit dripping wet. Well, they can figure that he went in
4 the pool, right?
5 A. Right.
6 Q. Even though they didn't witness it.
7 I'm going to give you another example from my
8 childhood. You and I are probably in the age range where you
9 remember St. Joseph's baby aspirin?
10 A. Yes.
11 Q. Okay. And in the old days they would give it to kids
12 when they had a headache or something. Now you're never
13 supposed to give a child aspirin. Times have changed. You're
14 supposed to get it if you're old now for a heart attack or
15 something.
16 But anyway, we had St. Joseph's baby aspirin at
17 the house. My mother had several bottles on top of the
18 refrigerator, three bottles. She was sick, and she would check
19 on us every 15 minutes. She would set the timer, and she would
20 get up. She would listen while we were playing with Play-Doh.
21 I was 4, my brother was 3.
22 Well, when she went back to lay down, my brother
23 looked at me and said I'm hungry. We got on the stool, got on
24 the refrigerator, got the baby aspirin. We ate three bottles
25 of St. Joseph's baby aspirin. When my mother got up -- we did
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1 that in like 10 minutes, too. We loved it. It was orange
2 tasting candy.
3 My mom got up and she saw the aspirin on the
4 table. She saw the orange on our face. She saw the cotton all
5 over and she said who ate these aspirin? My brother and I told
6 my mother the cat ate the aspirin. Okay? My mother knew the
7 cat did not eat the aspirin, and she had to call my father to
8 come back and drive us to the hospital to have all of our
9 stomachs pumped. So my brother and I, our stomachs were
10 pumped.
11 She had to make a decision on what she did not
12 personally witness. Am I making sense?
13 A. Yes.
14 Q. Okay. So that's the best example of circumstantial
15 evidence.
16 Now my question for you is if the State proved to
17 you beyond a reasonable doubt the elements of the offense, can
18 you convict someone of Capital Murder based on circumstantial
19 evidence?
20 A. Yes.
21 Q. Okay. Now crimes are not going to all be committed in
22 the same way, are they, Ms. Woods?
23 A. No.
24 Q. Okay. Some crimes are going to be committed in front
25 of no witnesses. Some crimes are going to be committed in
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1 front of an entire baseball stadium of people. Okay?
2 A. Okay.
3 Q. And some are going to be on video. Some are not.
4 Some are only going to be committed in front of one eyewitness.
5 If I prove to you -- if you were a juror on a
6 Capital Murder case and there was an eyewitness testifying and
7 that eyewitness' testimony established all of the elements of
8 the indictment to you beyond a reasonable doubt and you
9 believed that eyewitness beyond a reasonable doubt, one
10 eyewitness, could you convict someone of Capital Murder based
11 on the testimony of one eyewitness?
12 A. Yes.
13 Q. Now in order to sit on any jury -- burglary, theft,
14 robbery, drugs -- you have to be able -- anybody has to be able
15 to say they could consider the full penalty range before they
16 could sit on a jury. Okay? The full penalty range for Capital
17 Murder is life without parole or the death penalty. Okay?
18 A. Okay.
19 Q. So if you were sitting on a jury and you had convicted
20 someone of Capital Murder, could you consider the full penalty
21 range, life without parole or the death penalty?
22 A. Yes.
23 Q. And you told me you do believe in the death penalty.
24 A. Yes.
25 Q. And you have your whole life?
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1 A. Yes.
2 Q. Is that a fair statement?
3 A. Yes.
4 Q. Okay. Let's go a little further. If a person was
5 sitting on a jury, they have to be able to consider any penalty
6 range for an offense before them. So in a prosecution for an
7 offense with lesser-included offenses -- and I'm going to
8 explain that in a minute -- the jury may find the Defendant not
9 guilty of the greater offense but guilty of any lesser-included
10 offense. Okay?
11 Now, let's say I didn't prove to you the burglary
12 or the robbery. Okay?
13 A. Okay.
14 Q. All right. So you would have to find him not guilty
15 of Capital Murder, right, if I didn't prove that to you?
16 A. Yes.
17 Q. Okay. But then you would go on to consider if they
18 were guilty of first-degree murder, the lesser charge of
19 regular murder, just intentionally causing the death. Because
20 I didn't show you any of those aggravating circumstances.
21 Okay?
22 A. Okay.
23 Q. All right. So the penalty range for regular murder is
24 not less than 5 years nor more than 99 years or life and up to
25 a 10,000-dollar fine. Okay?
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1 A. Okay.
2 Q. Can you consider the full penalty range for murder,
3 not less than 5 years nor more than 99 years or life and up to
4 a 10,000-dollar fine?
5 A. Yes.
6 Q. Okay. By consider I mean really look at.
7 A. Yes.
8 Q. Okay. Can you do that even if you convicted someone
9 of Capital Murder? Let's say it was a horrible set of
10 circumstances. You'll agree with me there are no good Capital
11 Murders, are there?
12 A. No.
13 Q. They are all going to be ugly, aren't they?
14 A. Yes.
15 Q. Okay. So if you found somebody not guilty of Capital
16 Murder, you could consider the full penalty range, not being
17 less than 5 -- not less than 5 years, up to and including 99
18 years or life for murder?
19 A. Yes.
20 Q. Okay. Let's go a little further. Jurors are the sole
21 judge of the credibility of the witnesses. Jurors can believe
22 all, some, or none of what a witness says. All witnesses have
23 equal credibility before they begin to testify. Okay?
24 Some people say if it's a doctor or a lawyer, I'm
25 going to automatically believe them or not believe them. Okay?
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1 Or a police officer, they are sworn to tell the truth. They
2 are a law enforcement officer. I'm going to start them out a
3 little ahead because of their profession.
4 How do you feel?
5 A. I feel that it goes both ways.
6 Q. Okay. Tell me what you mean by that.
7 A. I mean, they can come across -- you know, listening to
8 them, you'd have to listen to the facts first.
9 Q. Okay. So you wouldn't judge somebody just by their
10 profession. You would start them out equally with all other
11 witnesses?
12 A. That is correct.
13 Q. Okay. All right. Now let's go a little further. A
14 confession. A confession of a defendant is admissible in
15 evidence if freely and voluntarily made, electrically recorded
16 or written, the confession shows that the accused has been
17 warned prior to making such confession of the right to remain
18 silent, that it could be used against him in court, the right
19 to a lawyer, if he cannot afford a lawyer the right to have a
20 lawyer appointed, the right to stop questioning at any time,
21 and if the person intentionally -- I'm sorry. The person
22 knowingly, intelligently and voluntarily waives those rights.
23 Okay? Gives up those rights.
24 A. Okay.
25 Q. So are those important rights to you?
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1 A. Yes.
2 Q. And so that's what's required on a confession. All
3 right? The requirements.
4 So it's up to the jury whether they believe that
5 the police complied. Okay? So it would be up to you on a jury
6 to determine whether the confession was freely and voluntarily
7 given or whether the police complied with what I just read to
8 you, all of those warnings. Okay?
9 A. Okay.
10 Q. So if you do not believe the police complied -- if you
11 do not believe the police complied or if the confession was
12 involuntary, then you would get an instruction that you will
13 wholly disregard the alleged statement or confession and not
14 consider it for any purpose. Okay? Can you follow that
15 instruction?
16 A. Yes.
17 Q. Okay. So let me put that in context. Okay? Because
18 I call this the cat-out-of-the-bag thing. Let's pretend you
19 have a confession to Capital Murder. It's ugly. It's grizzly.
20 It's unjustified, horrible, intentional killing of another
21 human being, an innocent victim. And the defendant, male or
22 female, goes into the grizzly details of what they did. Okay?
23 A. Okay.
24 Q. Grizzly details. Okay? And you've heard it now, but
25 you believe that a warning is missing. Okay? The police
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1 didn't comply because there is a warning missing. Okay?
2 A. Okay.
3 Q. One or two of the warnings are missing. They didn't
4 technically comply. You believe they didn't comply. Can you
5 wholly disregard that confession and not consider it for any
6 reason?
7 A. I can disregard it.
8 Q. Okay. So let me ask this going a little further. Can
9 you disregard it if it were the only piece of evidence that got
10 me beyond a reasonable doubt? Can you disregard it if you
11 believe the police did not comply, okay, with those warnings,
12 okay, that we talked about or you believe the confession was
13 involuntary? You said you can disregard it.
14 Let me tell you what disregard means then. It's
15 not in evidence. You can't consider it. If that was the piece
16 of evidence, can you disregard it if it means finding the
17 Defendant not guilty because I haven't met my burden beyond a
18 reasonable doubt without that confession and find someone not
19 guilty?
20 A. I could.
21 Q. Okay. Great.
22 Voluntary intoxication. Voluntary intoxication
23 does not constitute a defense to the commission of crime. I go
24 out and I tank one on. I decide to drink 20 or 30 beers and
25 then I go and I get in a fight with someone and punch them out
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1 at a bar. The fact that I have made a personal choice, as you
2 say, to voluntarily intoxicate myself is not a defense to
3 crime. Can you follow that instruction?
4 A. Yes.
5 Q. Okay. All right. Causation. A person is criminally
6 responsible if the result would not have occurred but for his
7 conduct, operating either alone or concurrently with another
8 cause, unless the concurrent cause was clearly sufficient to
9 produce the result and the conduct of the actor clearly
10 insufficient.
11 Just a minute, Ms. Woods.
12 MS. YENNE: Judge, can you tell me how much time
13 I've used, please?
14 THE COURT: You have gone 38 minutes.
15 MS. YENNE: Okay. So 22 minutes left.
16 THE COURT: I'm sorry. You started at 9:39 so
17 that's 21 -- 38 minutes.
18 Q. (BY MS. YENNE) Okay. A person is criminally
19 responsible if the result would not have occurred but for his
20 conduct, operating either alone or concurrently with another
21 cause, unless the concurrent cause was clearly sufficient to
22 produce the result and the conduct of the actor clearly
23 insufficient.
24 That's a mouthful, but let me give you an
25 example.
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1 A. Okay.
2 Q. Let's say somebody sets an apartment fire. They set
3 an apartment fire and it kills the family next door. The fire
4 department is having a bad day, Ms. Woods. They are having a
5 bad evening. Two engines break down, and it's a holiday
6 weekend and they don't get there as timely as they can. The
7 response time is twice the response time or maybe they could
8 have saved the family next door, but they didn't. And they are
9 a good fire department. They just had a bad night. Something
10 happened. Human nature.
11 The conduct of the actor in setting the fire was
12 clearly sufficient to kill the family next door. Am I making
13 sense?
14 A. Yes.
15 Q. Separate and apart with the fire department not being
16 able to get there in time. Okay?
17 Now let's go on to burglary. A person commits an
18 offense if, without the effective consent of the owner, the
19 person enters a habitation with intent to commit a felony,
20 theft, or an assault; or enters a habitation and commits or
21 attempts to commit a felony, theft, or an assault. Okay?
22 Those are the definitions. They can enter with the intent to
23 commit a felony, theft, or assault or -- with the intent or
24 form it right inside the residence. Okay?
25 A. Okay.
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1 Q. All right. Can you follow the burglary instructions
2 if you got them on a jury?
3 A. Yes.
4 Q. Let's go to robbery. A person commits an offense if,
5 in the course of committing theft and with intent to obtain or
6 maintain control of the property, he intentionally, knowingly,
7 or recklessly causes bodily injury to another.
8 In the course of committing theft means conduct
9 that occurs in an attempt to commit, during the commission or
10 in immediate flight after the attempt or commission.
11 I decide I'm going to steal from Wal-Mart,
12 Ms. Woods. Steal from Wal-Mart. The manager stops me. I'm
13 stealing makeup and I punch the manager out and I give him a
14 black eye. Okay? Bodily injury. I'm intentionally causing
15 bodily injury in the course of committing theft. Okay?
16 A. Okay.
17 Q. Could you follow that instruction?
18 A. Yes, ma'am.
19 Q. Okay. So two parts of a trial. There is
20 guilt/innocence, and there is punishment. So let me go a
21 little further. You told me that you can hold me to my burden
22 beyond a reasonable doubt.
23 A. Yes.
24 Q. Okay. If I don't meet my burden, you could find
25 someone not guilty of Capital Murder?
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1 A. Yes.
2 Q. Okay. If I meet my burden, you could find them
3 guilty?
4 A. Yes.
5 Q. Now if a jury finds someone not guilty, the trial is
6 over. They go home. Okay? It's over. Someone is acquitted,
7 and they go to their home or their community or wherever.
8 Okay?
9 A. Okay.
10 Q. That's the end of the trial if the person is found not
11 guilty.
12 Now if they are found guilty, in order to sit on
13 a Capital Murder jury you have to be able to follow the
14 process. So it's kind of a little more complicated process
15 than what people would think. It's not just a vote of life or
16 death. Okay?
17 A. Okay.
18 Q. There are a question -- and maybe two questions --
19 that would be given to you, okay, if you sat on a Capital
20 Murder jury. All right? And right after the guilty verdict,
21 before any punishment evidence is presented, you cannot have
22 made up your mind as to the answers. Okay? You have to be
23 able to consider guilt/innocence evidence, but you must be able
24 to consider any and all punishment evidence as well. Okay? In
25 order to consider all evidence, you have to keep an open mind.
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1 Okay?
2 A. Okay.
3 Q. Each question is independent of the verdict. Each
4 question is independent of each other, and each question is
5 based only on the evidence presented. Okay?
6 So some people say the minute I convict someone
7 of Capital Murder, I am going to automatically sentence them to
8 life without parole. Okay? Is that you?
9 A. No.
10 Q. Okay. Someone says the minute I convict someone of
11 Capital Murder, I'm going to automatically give them the death
12 penalty. Is that you?
13 A. No.
14 Q. Okay. So while you think the death penalty is an
15 appropriate penalty -- is that a fair statement, at times?
16 A. Correct.
17 Q. You're telling me that you haven't automatically made
18 up your mind yet?
19 A. Correct.
20 Q. Okay. So -- and you see what I'm saying? Because all
21 Capital Murders are going to be horrible.
22 A. Yes.
23 Q. They are all going to be ugly, and they are all going
24 to be rotten to sit on.
25 Let me ask you a question. You had checked
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1 Number 160, page 29, that you wanted to be a juror. Maybe --
2 is that a yes?
3 A. Yes.
4 Q. Okay. Can you tell me why?
5 A. It's just a civic duty.
6 Q. Okay. All right. Let me go a little further. So you
7 will not have automatically made up your mind?
8 A. Correct.
9 Q. Okay. So then if the jury found someone guilty of
10 Capital Murder, you go on to what's called a Special Issue. So
11 let's talk about that Special Issue.
12 Do you find from the evidence beyond a reasonable
13 doubt that there is a probability that the Defendant would
14 commit criminal acts of violence that would constitute a
15 continuing threat to society?
16 Now I have to prove that to you beyond a
17 reasonable doubt. And what we're doing is predicting future
18 danger. Okay?
19 A. Okay.
20 Q. All right. So I have to prove to you beyond a
21 reasonable doubt that there is a probability that the Defendant
22 would commit criminal acts of violence that would constitute a
23 continuing threat to society. So my question to you is what
24 does probability mean to you?
25 A. The likelihood that it would be a repeat of something
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1 similar.
2 Q. Okay. Maybe murder. Could it be repeat of property
3 crimes or assaults?
4 A. Correct.
5 Q. Okay. So property crimes could be criminal acts of
6 violence to you?
7 A. Correct.
8 Q. Okay. And would it be more than one act? It's plural
9 there. It says "acts."
10 A. Acts. Okay.
11 Q. So you can consider property crimes acts of violence?
12 A. Yes.
13 Q. Okay. And I think one of the things you said is that
14 you had put in your questionnaire that you had a concern about
15 the people that continue to repeat acts?
16 A. Yes.
17 Q. Okay. Does that include repeating property crimes?
18 A. Yes.
19 Q. Okay. So now I have to prove that to you beyond a
20 reasonable doubt. Can you hold me to that burden?
21 A. Yes.
22 Q. Now let me tell you what society is. Society is not
23 limited to but includes prison. Let me tell you why. Because
24 once you're convicted of Capital Murder, there is only one
25 place you're going if you're a defendant. Because the penalty
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1 range is life without parole or the death penalty, you're going
2 to a prison, right?
3 A. Correct.
4 Q. Okay. So society has to include prison. It's not
5 limited to but it includes prison.
6 So let's go a little further. So can you
7 consider prison to be society?
8 A. Yes.
9 Q. Okay. Do you believe that inmates in prison have a
10 right to be safe from other inmates?
11 A. Yes.
12 Q. Okay. Do you believe prison personnel have a right to
13 be safe from other inmates?
14 A. Yes.
15 Q. Ministers, prison ministry?
16 A. Yes.
17 Q. Nurses, doctors in prison have a right to be safe?
18 A. Yes.
19 Q. Visitors to prison have a right to be safe?
20 A. Yes.
21 Q. Okay. Now let me go on to the focuses on this. She
22 runs the power point. I do not. In addition to her legal
23 talent, she can at least run a power point. I cannot.
24 Special Issue No. 1 focuses on the character for
25 violence of the particular individual, not merely on the
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1 quantity or quality of the institutional restraints put on that
2 person. In other words, this Special Issue focuses on the
3 internal restraints of the individual to behave. Am I making
4 sense?
5 A. Yes.
6 Q. Not merely what a jail would restrain you from. The
7 person's restraints. Would they commit continuing acts of
8 violence that would constitute a continuing threat to society?
9 Am I making sense?
10 A. Yes.
11 Q. Their internal control. Kind of a weird Special
12 Issue, but it has -- society has to include prison. Okay?
13 A. Okay.
14 Q. Let's go a little further. In deliberating on the
15 issues submitted you shall consider all evidence admitted at
16 the guilt or innocence stage of the trial, including evidence
17 of the Defendant's background or character or the circumstances
18 of the offense that militate for or mitigates against the
19 imposition of the death penalty. Okay? So you're supposed to
20 consider all the evidence. Okay?
21 A. Yes.
22 Q. Guilt/innocence, all the circumstances of the horrible
23 crime. Okay?
24 A. Okay.
25 Q. And all of the evidence at punishment, Defendant's
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1 background or character, that militates for or mitigates
2 against the imposition. Can you follow that instruction?
3 A. Yes.
4 Q. Let's go a little further. So Special Issue No. 1 is
5 a future dangerousness issue. It's predicting future
6 dangerousness.
7 Some people say that's never me. I can never
8 predict future danger.
9 Can you predict -- can you answer that question
10 even if it's predicting future dangerousness?
11 Some people say, well, I don't know how you could
12 ever prove to me beyond a reasonable doubt that there is a
13 probability that a defendant would commit criminal acts of
14 violence that constitute a continuing threat to society.
15 What I have to prove to you, again, do you find
16 from the evidence beyond a reasonable doubt that there is a
17 probability that the Defendant -- I have to prove to you beyond
18 a reasonable doubt there is a probability that the Defendant
19 would commit criminal acts of violence that would constitute a
20 continuing threat to society. Can you answer that question?
21 A. Yes.
22 Q. Okay. Could you agree with me that past behavior can
23 sometimes predict future behavior?
24 A. Yes.
25 Q. Okay. Because you yourself, in your questionnaire,
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1 had put repeated behavior. Sometimes it seems that some people
2 don't learn, right?
3 A. Yes.
4 Q. Okay.
5 THE COURT: Just for your information, you have
6 10 minutes.
7 MS. YENNE: Thank you.
8 Q. (BY MS. YENNE) Let's go a little further. So let me
9 go to the grid, please.
10 So if I prove to you beyond a reasonable doubt
11 that the Defendant -- there is a probability the Defendant will
12 commit criminal acts of I violence that constitute a continuing
13 threat to society, can you answer Special Issue No. 1 yes?
14 Could you answer that if I proved it to you beyond a reasonable
15 doubt?
16 A. Yes.
17 Q. Okay. And the reason that I'm asking that -- and it
18 takes all of the jury. The jury must be unanimous in answering
19 Special Issue No. 1 yes. Do you want to know why? Because
20 that's the road to the death penalty. Okay?
21 A. Okay.
22 Q. All right. So they have to be unanimous in finding
23 him to be a future danger based on all the evidence you looked
24 at at guilt/innocence and punishment.
25 Now no requires ten or more jurors. Okay? And
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1 then the Judge --
2 MR. WOOTEN: Judge, I believe that's a little bit
3 misleading. Because if you need 12 to get to the next part,
4 then an individual vote of one would keep that 12 from
5 happening. So I really think that almost makes it sound like
6 you're only going to have one of two possibilities. You're
7 going to have 12 or 10, whereas -- and I don't want this juror
8 to think that 10 people have to get together and cast that
9 vote.
10 THE COURT: Do you want to rephrase that,
11 Ms. Yenne?
12 MS. YENNE: Well, in order to return an answer of
13 no, it requires 10 or more jurors.
14 THE COURT: Overrule your objection.
15 Q. (BY MS. YENNE) In order for the jury to return an
16 answer of no, it requires 10 or more jurors; and then the Judge
17 would sentence the Defendant to life without parole. Okay?
18 A. Okay.
19 Q. And that will be over.
20 But if the jury answered unanimously yes, they
21 have already found him to be a guilty Capital Murderer and now
22 the jury has found him to be a future danger. Right?
23 A. Okay.
24 Q. Am I making sense?
25 A. Yes.
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1 Q. Okay. Some people say, well, once I found someone to
2 be a guilty Capital Murderer, horrible crime, and once I found
3 that they are a future danger, I'm going to automatically
4 sentence someone to life without parole or the -- I've already
5 got my mind made up. Okay?
6 Would that be you, already having your mind made
7 up? If you found him to be a guilty Capital Murderer and a
8 future danger, you can't have your mind made up at that point
9 in time.
10 Some people say, really, ma'am, I've already
11 found him to be a guilty Capital Murderer and a future danger.
12 My mind is made up about what I'm going to do after that. Is
13 that you, or could you keep an open mind?
14 A. I can keep an open mind.
15 Q. Okay. If that's the case, then you go on to Special
16 Issue No. 2. It's called the mitigation issue.
17 Now I have the burden of proof on Special Issue
18 No. 1, don't I?
19 A. Yes.
20 Q. Okay. You said you could hold me to it. Special
21 Issue No. 2 is whether taking into consideration all of the
22 evidence, including the circumstances of the offense, the
23 Defendant's character and background, and personal moral
24 culpability of the Defendant, there is a sufficient mitigating
25 circumstance or circumstances to warrant that a sentence of
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1 life imprisonment without parole rather than a death sentence
2 be imposed. Okay?
3 A. Okay.
4 Q. Now nobody has the burden of proof on that. Neither
5 the State nor the defense. So you would not hold the Defendant
6 to any burden, would you?
7 A. No.
8 Q. Okay. Neither would you hold the State. There is no
9 burden of proof.
10 You're always going to hear some mitigation in a
11 case, and I'll tell what you what that mitigation is. But you
12 have to take into consideration all the evidence, circumstances
13 of the offense, Defendant's character or background, personal
14 moral culpability. You have to determine if there is a
15 sufficient mitigating circumstance or circumstances to warrant
16 life in prison or a death sentence. Okay?
17 A. Okay.
18 Q. So let's go a little further. What is mitigating
19 evidence? Evidence that a juror might regard as reducing the
20 Defendant's moral blameworthiness.
21 MR. WOOTEN: Judge, at this time we would make an
22 objection to this slide. What's being projected on the screen
23 is identical to what has been entered as Defendant's Voir Dire
24 Exhibit No. 1. We believe that the slide violates Eddings
25 versus Oklahoma. Also, I believe that it violates the Eighth
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1 Amendment. We think it's a misstatement of the law of
2 mitigation in Texas.
3 THE COURT: Overrule your objection.
4 Q. (BY MS. YENNE) Now it's evidence a juror might regard
5 as reducing the Defendant's moral blameworthiness. Lessening
6 his blame is what it means. Basically, evidence you might
7 regard as lessening the Defendant's blame. Never lessening the
8 Defendant's guilt. They are already guilty, aren't they?
9 A. Okay.
10 Q. Okay. Am I making sense?
11 A. Yes.
12 Q. That's kind of a hard one. Okay? In other words,
13 guilty Capital Murderer, future danger; but is there something
14 that lessens their blame? Okay? In other words, something
15 that will warrant a sentence of life imprisonment versus the
16 death penalty?
17 A. Okay.
18 Q. So what can that be?
19 MS. YENNE: Go to mitigation.
20 Q. Now the jury must consider and give effect to
21 mitigation. That doesn't mean you have to find it. Okay?
22 Remember we talked about "might regard" and that it only -- and
23 even if you found there to be mitigation, Ms. Woods, it has to
24 be sufficient to warrant a life sentence. Am I making sense?
25 A. Yes.
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1 Q. Okay. What one juror thinks is mitigation, another
2 may not.
3 So let me give you an example. Some people have
4 seen children with families. They look at them and they say,
5 oh, my God. That kid doesn't have a chance. Those parents --
6 do you know what I mean -- never cared about them their whole
7 life. You wish somebody would take them away. Am I making
8 sense?
9 A. Yes.
10 Q. Okay. Because you know where that road is headed
11 because that kid never had a chance. Am I giving an example of
12 something that might lessen someone's blame?
13 A. Yes.
14 Q. But you get to decide if it does -- if. You don't
15 have to -- or if it's sufficient enough a mitigating
16 circumstance. Am I making sense?
17 A. Yes.
18 Q. Okay. So youth. To one juror youth could be it.
19 Could be not. A young person. To another old age could be.
20 To another child abuse, physical or sexual injuries during
21 childhood, good work history, drugs abuse, acts of kindness for
22 others.
23 Let me go a little further. You're always going
24 to have mitigation in a case. Somebody is always going to have
25 done something nice for somebody else in their life, aren't
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1 they?
2 A. Yes.
3 Q. Somebody is always going to have a bad experience
4 happen to them in life. The college of hard knocks hits us
5 all, doesn't it?
6 A. Yes.
7 Q. Okay. So there is always going to be mitigation. The
8 jury gets to decide is it in one way or another sufficient. So
9 it just doesn't matter if it's mitigating. It has to be
10 sufficiently mitigating to warrant a life without parole
11 sentence. Am I making sense?
12 A. Yes.
13 Q. Okay. Could be acts of kindness, could be alcohol
14 abuse, could be low IQ, low intellectual functioning. It could
15 be -- remember causation, the fire department example? It
16 could be that the Defendant was less responsible in the crime.
17 Am I making sense?
18 A. Yes.
19 Q. It could be the circumstance of the offense. It could
20 be a family breakup, single parent home, intellectual issues,
21 poverty, exposure to chemicals, poisons, toxins, toxic
22 material, toxic mold, mental retardation. It could be
23 desperation. Okay? Which you have to be able to say honestly
24 that you could consider and give effect to -- that doesn't mean
25 that you have to find it -- that there is weight in it to be
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1 mitigating. Am I making sense?
2 A. Yes.
3 Q. All right. Let's go back then. So if there is
4 sufficient mitigating circumstance, you as the jury get to
5 determine it. Am I making sense?
6 A. Yes.
7 Q. Okay. Let's go to the grid then just a minute.
8 Let's say you found there -- could you answer
9 that question, Special Issue No. 2 -- could you answer Special
10 Issue No. 2 if you took all the evidence into consideration,
11 the background, character, personal moral culpability of the
12 Defendant, if there was no sufficient mitigation, no sufficient
13 mitigating circumstance -- there could be one. If the evidence
14 didn't show you that there was a sufficient mitigating
15 circumstance to warrant life in prison without parole rather
16 than a death sentence, would you answer that no?
17 A. Yes.
18 Q. Okay. And if there was a sufficient mitigating
19 circumstance or circumstances could you answer it yes?
20 A. Yes.
21 Q. And the reason I ask you that is because if he or she
22 is guilty of Capital Murder and you found them to be a future
23 danger and there is no mitigation, a no answer has to be
24 unanimous from the jury because then the defendant receives the
25 death penalty. Okay?
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1 A. Okay.
2 Q. So if I prove to you Special Issue No. 1 yes beyond a
3 reasonable doubt, that there is a probability he would commit
4 criminal acts of violence that constitute a continuing threat
5 to society, I met my burden, can you answer that question?
6 A. Yes.
7 Q. Okay. And if there is no sufficient mitigation --
8 there is mitigation, but it's not sufficient enough -- can you
9 answer it no?
10 A. Yes.
11 Q. Knowing that the Defendant receives a death penalty?
12 A. Yes.
13 Q. Okay.
14 THE COURT: For your information, two minutes.
15 MS. YENNE: Thank you.
16 Q. Oh, I notice you watch Cops on TV.
17 A. True Confessions.
18 Q. True Confessions. I'm sorry. You watch it every
19 week?
20 A. Saturdays.
21 Q. Is that your -- mine is NCIS and I like Person of
22 Interest. Okay?
23 A. Okay.
24 Q. But what do you like about Cops?
25 A. They just mainly pull over to give traffic violations.
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1 That's it. None of these murders or anything like that.
2 Q. Not any murder, just traffic tickets?
3 A. Right.
4 Q. My favorite pullover still is the Geico pig behind the
5 wheel. Do you know why I pulled you over? No taillight. Do
6 you know which one I'm talking about, that commercial? The
7 Geico commercial? The officer giving the pig a citation?
8 Okay. That hasn't made Cops yet.
9 A. Okay.
10 Q. All right. Let me check one other thing. You
11 answered you thought the death penalty was used too often on
12 your questionnaire. I have one last question about that.
13 Let's go to page -- page 120, and then I'm about ready to wrap
14 it up. You said page 20: Capital punishment may be wrong, but
15 it is the best preventative to crime.
16 Is that still your belief?
17 A. Yes, it is.
18 Q. Okay. And is it still your belief that we must have
19 capital punishment for crimes?
20 A. Yes.
21 Q. Okay. You had put that you thought the death penalty
22 was used too often, okay, on page 18. But you also put --
23 what's your best argument for the death penalty?
24 If the crime fits. Right?
25 A. Yes.
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1 Q. You still believe that?
2 A. Yes, I do.
3 Q. Okay.
4 MS. YENNE: I'll pass the venire person.
5 THE COURT: Mr. Wooten?
6 VOIR DIRE CROSS-EXAMINATION
7 BY MR. WOOTEN:
8 Q. Is it Ms. Woods?
9 A. Ms. Woods.
10 Q. Ms. Woods, my name is Jay Wooten; and along with Mary
11 Conn and some folks in the back we represent James Harris.
12 I wanted to ask you a few things today about your
13 views on Capital Murder. And the first thing I'd like to do is
14 get your reaction to some statements. Now you know what the
15 law is now. I think the District Attorney has talked to you
16 about that. And so what I want to tell you is that, first off,
17 if I'm unclear, would you please tell me that I'm being
18 unclear?
19 A. I will.
20 Q. As I often am. If I say that you said something in an
21 example like, Well, Ms. Woods, you said this; and you say, No,
22 I didn't say that. Please say that to me if I'm misstating
23 what you said.
24 A. Okay.
25 Q. And then I want you to know that I don't have the
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1 ability nor the desire to change the law. So whenever I talk
2 to you, I'm not trying to get you to say you would do anything
3 that was outside the law. Does that make sense to you?
4 A. Yes.
5 Q. Sometimes I ask you questions that make you stop and
6 think, I hope, because that's my job.
7 A. Okay.
8 Q. Does that make sense?
9 A. Yes.
10 Q. So because I'm trying to get your true feelings about
11 the issues that would lead to whether you're a qualified juror
12 for this case.
13 Now let me ask you this. If I said to you what
14 are your feelings about the following statement, that anyone
15 that's convicted of Capital Murder should get the death
16 penalty, what are your feelings about that statement?
17 A. Anyone that commits capital --
18 Q. Capital Murder.
19 A. Should get the death penalty?
20 Q. Right. Knowing that I'm not saying that's the law,
21 obviously. I'm giving you an extreme statement, asking you
22 what your opinion is or what your feelings are about that
23 statement.
24 A. Okay.
25 Q. Does that make sense?
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1 A. I'd have to hear all the facts of the case.
2 Q. Right. But let me ask you -- let me tell you one more
3 time. Like, for instance, I'll give you an example. If
4 somebody said to me the Tennessee Titans are better than the
5 Texans. Okay? I would have a -- I would say that strikes me
6 as wrong. Here's why. You know, Arian Foster, J.J. Watt.
7 Does that make sense to you?
8 A. Yeah.
9 Q. I wouldn't say -- me, personally, I wouldn't say,
10 well, you know, we'll just have to wait and see. Because I
11 have an opinion right now about it.
12 And so I'm just trying to get to your opinions.
13 And what I'm not trying to do is change your opinions.
14 A. Okay.
15 Q. Does that make sense?
16 A. Yes.
17 Q. So let me go back to that. If I said to you every --
18 like let's just say you're standing around the watercooler
19 and -- I don't know if people use watercoolers anymore, but
20 it's a term. You're standing around the watercooler and
21 somebody says that, one of your friends that you like to
22 converse with. You know, what would be your opinion? What
23 might you say to that person if they said I think anybody
24 convicted of Capital Murder should get the death penalty? What
25 would be your feelings about that statement?
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1 A. It would be their opinion.
2 Q. Okay. Would you agree with them? Would you disagree
3 with them?
4 A. Depending on the facts.
5 Q. Okay. All right. Well, would you believe that -- if
6 you said depending on the facts, would that mean that you
7 disagree with that statement?
8 A. I could, yes. I could.
9 Q. Okay. If I had said to you the opposite, every
10 Capital Murderer that is convicted -- or any person who is
11 convicted of Capital Murder should get life without the
12 possibility of parole, what are your feelings about that
13 statement?
14 A. It could be the death penalty to me.
15 Q. Okay.
16 A. In that opinion. Or it could be -- like I said, the
17 facts.
18 Q. If you were queen of the world and it was up to you
19 every time, would either one of those statements be true for
20 you as queen of the world?
21 A. Either/or? The death penalty or life parole?
22 Q. Yeah. Like, every time. Would that fit you?
23 A. On a capital? Yeah.
24 Q. Okay. What I want to ask you is -- I want to give you
25 a hypothetical. And a lot of times people talk about Capital
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1 Murder, but I want to make sure you understand what I mean in
2 my hypothetical about Capital Murder because sometimes people
3 throw in factors and those factors can change their opinion.
4 Sometimes -- like, for instance, I'm about to
5 give you a hypothetical and tell you that self-defense wasn't
6 involved. Well, the lawyers in this room know that if -- in a
7 hypothetical when you say somebody was convicted of Capital
8 Murder, well, of course self-defense wasn't involved. But if
9 you sent me down to try to do your job, I would be lost. So
10 the bottom line is, we understand that not everybody knows
11 those things. So I want to go through and give you a
12 hypothetical and make sure you understand what I'm talking
13 about when I -- about the crime and the conviction in that
14 hypothetical. Does that make sense to you?
15 A. Yes.
16 Q. All right. And please tell me if I lose you somewhere
17 along the way.
18 A. Okay.
19 Q. Now let's say that you -- and by the way, when I say a
20 hypothetical, this is not a thinly veiled hypothetical about
21 this case. I'm talking about a whole different case that I'm
22 making up. Okay?
23 A. Okay.
24 Q. You and 11 other jurors have been selected to be on a
25 Capital Murder.
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1 A. Okay.
2 Q. And I'm taking you to the jury room and y'all have
3 just decided or just found that defendant guilty of Capital
4 Murder. Obviously, it was unanimous. Okay?
5 A. Okay.
6 Q. All right. So you and the other 11 jurors have found
7 this hypothetical defendant guilty of Capital Murder. And in
8 this crime, this hypothetical crime, there was no self-defense,
9 there was no defense of a third person, there was no defense of
10 property. The criminal act that constituted Capital Murder is
11 not a mistake, not an accident. No one forced this
12 hypothetical defendant to commit the murder. Also, the victim
13 did not provoke the act of Capital Murder, and they did not in
14 any way deserve to die. Are you with me?
15 A. Yes.
16 Q. And then finally I'll make sure -- just so you
17 understand what I'm talking about, you understand that in this
18 hypothetical there is no issues of insanity of the defendant
19 and the defendant was not retarded or incompetent. Are you
20 with me?
21 A. Okay. Yes.
22 Q. Now what are your feelings about the statement that
23 the death penalty is the only appropriate penalty for that
24 guilty Capital Murderer?
25 A. You want to know if I would say they were guilty or
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1 not guilty?
2 Q. No, ma'am. I'm asking you what are your feelings with
3 me saying that guy, that -- it could be a woman, I guess.
4 A. Okay.
5 Q. That hypothetical defendant under those hypothetical
6 facts, if I say to you the death penalty is the only
7 appropriate penalty for that particular Capital Murderer, what
8 are your feelings about that statement?
9 A. I would think that it would be accurate.
10 Q. Okay. Can you tell me why you would feel that way?
11 A. Because you kind of laid everything out. You were
12 clear.
13 Q. Okay. And when you say we were clear -- and remember,
14 I'm just trying to get in your head a little bit.
15 A. Right. Right.
16 Q. Can you tell me what you mean by I laid it out and it
17 was clear? Or -- or the defendant laid it out and it was
18 clear?
19 A. You painted a big picture.
20 Q. Okay. What about that picture made you think that it
21 was appropriate?
22 A. Because it was where they were at, the property, you
23 know. And the victim, you know, they didn't fight back or
24 anything. So --
25 Q. Okay. Now those feelings about -- and I'm just
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1 talking about your feelings wrapped up in a little ball. I
2 can't -- there is not a good term for that. But your feelings
3 about the death penalty, have they been consistent throughout
4 your life or have they changed any?
5 A. They have pretty much been the same throughout my
6 life.
7 Q. Okay. And your opinion regarding the death penalty,
8 are they -- do you feel like they are strong? Like, I've got
9 those strong feelings for the Texans. I don't have very strong
10 feelings about the Kansas City Chiefs. I don't care. You
11 know? And I'm not trying to make light of it, but I'm just
12 trying to say -- you know, my religious feelings are very
13 strong, you know; but my feelings about property taxes are not
14 as strong but kind of strong. Feelings about the Kansas City
15 Chiefs, I don't care.
16 A. Yeah.
17 Q. Where are your feelings as far as on the death
18 penalty?
19 A. It would be strong.
20 Q. Okay. Now, if you know, where do you feel like your
21 feelings about the death penalty came from? Was that anything
22 that you spoke about to your parents or --
23 A. It probably came from my views growing up with my
24 father's view about the death penalty.
25 Q. Okay. And if you don't mind, could you tell us what
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1 you believed your -- or what you believe your father's views
2 were?
3 A. That you needed the death penalty in society.
4 Q. Okay.
5 A. That was just a part of it.
6 Q. Okay. My father felt the same way.
7 A. Uh-huh.
8 Q. Do you know why -- why do you think, if you know, he
9 felt that way? Do you know what he based it on?
10 A. Because of the crime. You know, crime and people, you
11 know, just -- you know, they choose to, you know -- you know,
12 they make their decisions to just take, you know, from others.
13 Q. Okay. And --
14 A. And then my family has always been a hardworking
15 family. You know, we always worked for what we wanted. And
16 then that's where that view is coming from. My daddy always
17 had a strong work ethic with us. You know? And it's like work
18 for your keeps.
19 Q. Absolutely. Absolutely.
20 Are there any differences, do you believe,
21 between your views now and the views that you feel like your
22 father had?
23 A. No. I pretty much got the same view as my father.
24 Q. Okay. When you talked about the -- I notice on -- and
25 you don't have to go into these unless you think I'm misstating
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1 them. I think the D.A. probably talked about most of these so
2 you probably looked them over. But please feel free to look
3 them up if you want to.
4 I show on Question 100 you said, I respect the
5 death penalty.
6 And I can help you with that page if you want to
7 look it up. We're getting to know these kind of well. 18 at
8 the top?
9 A. Yes, I see it.
10 Q. Okay. And first off -- and once again, when I ask you
11 these things, I know sometimes that you -- it maybe sounds like
12 I'm in disbelief like, do you think that? I'm not saying that
13 at all. When I say do you still feel that way, sometimes
14 people have thought about these questionnaires over the weekend
15 and they decided they feel a different way. I'm just trying to
16 get to your true feelings.
17 Do you still feel that way today?
18 A. Yes, I do.
19 Q. Can you tell me what you mean when you say, I respect
20 the death penalty?
21 A. Because it's a part of our society. It's just a part
22 of human -- you know, mankind.
23 Q. Sure. And let me ask you this. And this is where I'm
24 putting my little spin on it. So please call me on that if I'm
25 wrong.
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1 I will say there is a lot of things that are part
2 of our society that I realize are part of our society, but I
3 don't necessarily respect all those part. Is there something
4 that makes the death penalty be in the category of the things
5 that you respect about, you know, what's part of humankind,
6 like you said? Or when you say you respect the death penalty,
7 are you more saying I'm just acknowledging that it's there?
8 A. Acknowledging that it's there.
9 Q. Okay. Do you feel that -- have you always felt like
10 you respected the death penalty?
11 A. Yes, I have.
12 Q. Okay. Now I know that you said that you felt like --
13 if you look on that same page just a couple down -- well, in
14 fact, let's go in order, if that's okay with you.
15 On Number 101 I think it says -- you tell me if
16 I'm wrong -- what purpose, if any, do you think the death
17 penalty serves in our society?
18 And you said, To remove those that cannot be
19 rehabilitated.
20 Do you still feel that way today?
21 A. Yes, I do.
22 Q. Okay. What do you mean by that? Could you elaborate
23 on that just a little bit?
24 A. Just repeat criminal, you know, just keep, you know,
25 getting in trouble.
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1 Q. Now can I ask you if this makes a distinction for you?
2 Let's take two different categories of criminals, if we may.
3 Let's say that you're talking about someone who commits Capital
4 Murder and gets convicted and somebody who commits robbery and
5 gets convicted. Now there's all sorts of factors that can go
6 into what kind of a sentence somebody convicted of robbery
7 gets. So let's just say this is a 10-year robbery for whatever
8 reason. Because we don't want to go down that path. We'll be
9 here all day.
10 That person -- for that robbery that person may
11 get back out into the society we talk about that's -- for lack
12 of a better word, criminal law people say free world. Have you
13 ever heard anybody say that term?
14 A. Yes.
15 Q. Free world. Okay. And I know that's not a great
16 term, but it really does go right to what I'm saying. So that
17 person who's convicted of robbery, there is a very good chance
18 that they are going to someday get out into the free world.
19 Okay?
20 Now as you know now from talking to Ms. Yenne, if
21 a person is convicted of Capital Murder in Texas, they are not
22 ever going to be free world, if you will. They are going to go
23 to prison for one of two different purposes. They are going to
24 go to the prison to await an execution date, or they are going
25 to go to prison to spend the rest of their life because it's
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1 life without possibility of parole.
2 Now do you distinguish -- going back to your
3 question now -- I said all that to say this. Back to your
4 question, does -- do you still -- if we're talking about
5 Capital Murder, how do you feel about your answer to remove
6 those that cannot be rehabilitated? Does that change it at
7 all, knowing that those two things -- that there is two
8 different scenarios in the law, the difference between somebody
9 that's going to get out and somebody that's not?
10 A. On that when I wrote that response --
11 Q. Yes, ma'am?
12 A. -- I was speaking -- I was thinking when you take a
13 life.
14 Q. Okay. Okay.
15 A. That's what I was referencing to the death penalty.
16 Q. And so when you say somebody who can't be
17 rehabilitated, you're talking about somebody who is in prison?
18 A. Right.
19 Q. Okay. What would you think would be the definition of
20 somebody would can't be rehabilitated who is sentenced to life
21 without the possibility of parole?
22 A. What would be my definition?
23 Q. What does it mean to you?
24 A. Repeat the question again.
25 Q. And it was a bad question so please let me. What does
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1 it mean -- when you say somebody who can't be rehabilitated and
2 you're talking about them being in prison, what is your
3 definition that they couldn't be rehabilitated? A lot of times
4 people would say, well, you know, to be rehabilitated in the
5 free world somebody has to get out, they have to find a job,
6 support themselves, stay out of trouble, you know, become a
7 productive member of the free-world society.
8 What is your definition in prison, if you will,
9 of a person who can or cannot be rehabilitated?
10 A. You have to look at the past crimes on that
11 individual.
12 Q. Yes, ma'am.
13 A. And then that kind of sets the mind frame of, like,
14 the past predicts the future.
15 Q. Okay. And by the way, that makes sense to me.
16 Perfect sense. But let me ask you this. The elected D.A. here
17 talked to you about Special Issue No. 1, which is the future
18 danger issue. And my question is is there a possibility that
19 somebody who has taken a life, to use your word, and been
20 convicted for it, is there a -- because if you look at their
21 past and apply kind of your formula that we talked about a
22 minute ago, it would seem like if the past is an indicator of
23 what's going to happen in the future, then you would expect
24 them to do that again. Does that -- are you able to keep your
25 mind open to the thought that somebody could break that cycle?
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1 A. Yes, I can.
2 Q. Okay. Now going to Number 102, if you don't mind,
3 which is right under that, it says: Do you think the death
4 penalty in Texas is used too often or too seldom?
5 And you put, Too often. And I know we talked a
6 little bit about -- I mean, you talked a little bit about that
7 with Ms. Yenne; and you were talking about the cost to society.
8 Am I stating that correctly? Is that what you talked about
9 when she asked you about that answer?
10 A. Yes.
11 Q. Okay. And so is the cost, the potential cost to the
12 taxpayer or to society, something that is important to you in
13 deciding whether the death penalty is used too seldom or too
14 often or just right?
15 A. The cost is a concern, and it is used a lot.
16 Q. Okay. Well, let's take the last part of that answer
17 for a second, if you don't mind.
18 A. Okay.
19 Q. So when you say it's used a lot, would you think
20 that -- why do you think it's used a lot? Let me ask you that
21 question.
22 A. Because of the crimes that are committed here in
23 Texas.
24 Q. Okay. If I asked you -- okay. So -- and I'm just
25 trying to get a feel for what you're saying. Is your answer
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1 that it's used a lot because there is a whole lot of crime? Or
2 when you say it's used -- and so in that general view you would
3 say, well, it's used too often but it's because there is -- too
4 often there is capital crime?
5 A. That is correct.
6 Q. Okay. So it's that one?
7 A. Uh-huh.
8 Q. All right. Now going back to the first part of your
9 answer about three answers ago, how important is it to you --
10 or how important is it to you the difference between the cost,
11 for instance, of the death penalty versus the cost of life
12 without possibility of parole?
13 A. The difference -- I guess you will have to look at the
14 person's age because if they are older, you know, they will
15 tend to cost more because of health conditions, in addition to
16 housing them in the system, compared to a younger person. And
17 then you're dealing with the probability that they will die in
18 prison.
19 Q. You know, you can take the administrator out of the
20 office, but you can't take the office out --
21 A. I know. I know.
22 Q. And what's funny is I never thought about it that way.
23 But that makes perfect sense when you said it that way; but you
24 turned on that expertise, didn't you? That makes a lot of
25 sense to me. That made a lot of sense. I'm sure you are a
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1 very good administrator. Okay.
2 So it is a case by case for you in that regard?
3 A. It is.
4 Q. Okay. No, going down to Number 103: What is your
5 best argument for the death penalty?
6 And you say, If the crime fits. What do you mean
7 by that answer, ma'am?
8 A. If it's a murder case and then that's the option you
9 have is the death penalty.
10 Q. Okay. Well, let me ask you this -- or point this out
11 to you and see if it changes your opinion at all or how you
12 feel about this statement. You know if you're on a Capital
13 Murder jury and there is a conviction, then obviously there
14 would have been a murder because remember Ms. Yenne talked to
15 you about it being murder plus?
16 A. Uh-huh.
17 Q. So it's not just a murder. And I can't believe I'm
18 saying the words "just a murder." Okay?
19 A. Okay.
20 Q. But from a legal standpoint -- I don't want to take
21 anything away from the fact that a person has died by violence.
22 But from a legal standpoint, you have to have a murder and
23 something else. So if, in fact, it is singularly just a
24 murder, legally you're -- I mean, you're going to have that.
25 You're going to always have that component because if you --
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1 I'll just give you a dumb example to illustrate my point.
2 If halfway through the trial the person walks in
3 and says, "Hi, I'm here. I'm not really dead," like on TV --
4 that doesn't really happen in the real world -- that would shut
5 that trial down pretty quick, as you might imagine?
6 A. Yes.
7 Q. Of course, that never happens. It's just an
8 illustration.
9 So you're always going to have, unfortunately, a
10 deceased or what we call a decedent by violence. So I guess
11 what I'm saying is if you have a guilty on a Capital Murder and
12 you say "if the crime fits," then every time -- I mean, every
13 time you're going to -- you find somebody guilty of Capital
14 Murder, there is going to be a decedent, a dead person.
15 So if that's the best argument for the death
16 penalty, does that mean that every time that there is a dead
17 person involved, then the death penalty would fit the crime and
18 be the appropriate -- the only appropriate punishment?
19 A. No, not necessarily.
20 Q. Okay. Tell me about that. What are your feelings
21 about me -- that statement I just said?
22 A. Because there could be other -- another whole side to
23 why was that crime committed. You know?
24 Q. Okay. And when you say a whole other side, let me ask
25 you -- you're not talking about a legal defense, right?
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1 A. No.
2 Q. You're talking about maybe just the circumstances?
3 A. The circumstances, right.
4 Q. Okay. So when you're talking about that, you're
5 saying you've found somebody guilty of an intentional Capital
6 Murder, not anything that would keep that from happening but
7 other things -- other things, other circumstances. Is that
8 right?
9 A. Yes.
10 Q. Okay. Can you think of any other circumstances that
11 would, for you, be important in that situation?
12 A. Just listening to the facts.
13 Q. Okay. And so the facts would be one. Any other
14 categories of things that would be important to you in making
15 that call?
16 A. No, other than just the facts. I will just want the
17 facts.
18 Q. Okay. And that would be -- so when you say if the
19 crime fits, you're talking about all the facts of that crime?
20 A. Yes.
21 Q. Okay. And just to be sure, that goes beyond whether
22 there is somebody who is deceased?
23 A. Yes.
24 Q. Now in Number 104 it says: What is your best argument
25 against the death penalty?
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1 MR. WOOTEN: May I just have a moment, Judge?
2 THE COURT: You may.
3 MR. WOOTEN: How much time do I have, Your Honor?
4 THE COURT: 30 minutes.
5 MR. WOOTEN: Thank you, Judge.
6 Q. (BY MR. WOOTEN) All right. For a moment, ma'am, I'm
7 going to get away from your questionnaire. I would like to
8 talk to you a little bit about the Special Issues. I'd like to
9 go to Special Issue No. 1 and talk to you a little bit about
10 that. And the elected D.A. covered a lot of things here, the
11 probability and that's not just mere possibility and all of
12 that.
13 I guess my main point or main concern is that
14 when people are -- I'm just trying to figure out -- number one,
15 I want to point out to you that beyond a reasonable doubt is
16 their burden on this part. And to know how high that is --
17 because this is a -- these two Special Issues don't exist in
18 any other crime in this State. But I think we all know about
19 the criminal justice system, and we all know how high the
20 burden is on convicting somebody of the actual underlying
21 crime. Does that make sense to you?
22 A. Yes.
23 Q. Okay. And the first thing I'd like to say to you is
24 that's the same burden. It's a big one. Can we agree?
25 A. Yes.
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1 Q. Okay. So what I would say to you is -- and we talked
2 about this a little earlier. If you're looking into the
3 future, is it possible for you, given that burden, even if you
4 heard -- and you will have if you hit this point. I mean,
5 we've talked about this. I won't talk about it a lot more; but
6 if you get to this point, it means that you have found somebody
7 guilty of a horrible crime. And that's going to be right --
8 and these are not done months apart. You know, this is fresh.
9 So you've just found somebody guilty of a
10 horrible crime. Can you hold them to their burden and can you
11 envision yourself -- even though you've heard this horrible
12 crime, can you envision yourself possibly answering this
13 question no?
14 MS. YENNE: Your Honor, I'm going to object to
15 the form of the question, that it's a commitment question
16 attempting to commit her as to how she would answer the
17 question.
18 MR. WOOTEN: Judge, Ms. Yenne always goes --
19 THE COURT: Overruled.
20 Q. (BY MR. WOOTEN) And you understand I'm probably going
21 to ask you the other side to that coin in a minute. I'm not
22 trying to commit you to anything. I'm saying that if you say
23 to me, Wooten, would you ever be a -- I'm trying to think of a
24 good example. If you said to me as a juror, you know, Wooten,
25 if you were on this jury, could you keep an open mind on
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1 Special Issue No. 1? Well, I might say yes. But then if you
2 said to me could you conceivably answer -- and you put yes or
3 no there. And I said no or I replied in the negative, then I
4 don't have an open mind. Does that make sense? Because
5 remember there is two choices.
6 So I'm what asking you is can you envision
7 yourself saying one of those choices? Because I think that's
8 the definition of having an open mind. You say, yeah, I can do
9 that.
10 A. Yes, I can have an open mind.
11 Q. Okay. But let's apply that for a second.
12 A. Okay.
13 Q. You just found this Capital Murderer guilty of a
14 horrible crime. Now can you envision yourself, knowing that
15 that is out there, knowing that that's already been done once,
16 can you envision yourself answering Special Issue No. 1 no, not
17 a probability that the Defendant would commit criminal acts of
18 violence that will constitute a continuing threat to society?
19 A. Can I see it? Could I see the slide that it had
20 the -- the wording?
21 Q. I believe that -- I promise you if this wasn't the
22 right slide, Ms. Yenne would be mad at me. This is a different
23 font, but I believe it's a correct interpretation of the law.
24 A. Give me a better example.
25 Q. Well, unfortunately, this is the law. Now let me ask
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1 you this. Maybe I'm misunderstanding you. What do you mean by
2 better example, ma'am?
3 A. Because I'm not --
4 Q. There is two different Special Issues. You may be
5 thinking about the second one. I'm going to get to that one,
6 but remember they go in order.
7 A. Okay.
8 Q. And they are sequentially ordered. That's why this
9 one is Number One. But see, if you -- if the State cannot
10 prove to the jury beyond a reasonable doubt and get a unanimous
11 12-juror vote of yes, then we never get to the second one.
12 These are like little speed bumps or little gates we go
13 through, or whatever example works for you.
14 And it starts off as a juror. See, to be a juror
15 you have to -- and to give the death penalty in Texas it
16 requires three unanimous 12/0 verdicts. So the first one would
17 be that you found this person guilty beyond a reasonable doubt
18 of Capital Murder. This horrible crime. Then the next thing
19 is they are going to attempt --
20 MS. YENNE: I'm going to object to the form --
21 verdicts. Form of the question, Judge.
22 MR. WOOTEN: I'm sorry. They are Special Issues.
23 I think once the jury answers a Special Issue, I think it's a
24 verdict; but I can change that word. That's fine. Answers.
25 That's fine with me.
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1 Q. (BY MR. WOOTEN) There are going to be three different
2 votes. But anyway, bottom line is this. You found somebody
3 guilty of Capital Murder of a horrible crime. Now my question
4 is knowing that that's fresh in your mind, that you know
5 that -- because remember it says from the evidence, and the law
6 will tell you that you're supposed to consider all the evidence
7 in the guilt/innocence part of the crime -- guilt/innocence
8 part of the trial concerning the crime.
9 Can you envision yourself, knowing that, knowing
10 that somebody has committed Capital Murder, can you answer this
11 Special Issue? Can you envision yourself being able to answer
12 that Special Issue no?
13 A. I would have to answer yes.
14 Q. Okay. And that's based on your belief system?
15 A. Yes.
16 MR. WOOTEN: May we have a moment, Judge?
17 THE COURT: You may.
18 Q. Now you understand that the law would require you to
19 be able to answer that either way, yes or no, to be a qualified
20 juror for a Capital Murder. Are you telling me that you will
21 have to answer yes?
22 A. I wasn't really clear. Because that's why I asked you
23 for the example.
24 Q. Well, the problem is the example is this. I can't
25 give you what the evidence would be.
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1 A. Uh-huh.
2 Q. Because that would be telling you about the case.
3 A. Uh-huh.
4 Q. That would be real easy if we were talking to
5 jurors -- like say on a marijuana case, it would be great if we
6 could ask them, hey, could you be a fair and impartial juror on
7 this marijuana case? Let me tell you. He was going down the
8 road. It was a legal stop. It was in his pocket. Do you see
9 what I'm saying? We can't ask you that.
10 A. Uh-huh.
11 Q. I can't tell you the facts of the case because that
12 would be improper. So all I can tell you is that's what you're
13 going to be looking at that Special Issue. And the State will
14 attempt to prove, as is their duty, and they will try to reach
15 their burden on that issue. What I'm saying is it wouldn't be
16 fair to my client if you can only answer it one way. Does that
17 make sense to you?
18 A. That does make sense.
19 Q. Okay. And if you can't answer it no, then that tells
20 me -- and I think what you said is it was -- it would have to
21 be yes for you.
22 MS. YENNE: I'm going to object. That was not
23 the form of the question. May we approach?
24 THE COURT: I'll sustain the objection.
25 Rephrase.
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1 Q. (BY MR. WOOTEN) I thought you -- you said to me --
2 and tell me if I'm wrong -- that it would have to be yes for
3 me. I thought that's what you said. And I took that -- you
4 tell me if I'm right. I took that that you will say that the
5 answer for that would always have to be yes.
6 MS. YENNE: I object. That's not what the
7 question was. It was not whether it would always be yes or
8 that it would only be yes. You could answer yes or no. I'm
9 going to object to the form of the question.
10 MR. WOOTEN: I'm going to object to the speaking
11 objection to the juror.
12 THE COURT: Ms. Yenne, restrict them to legal
13 objections.
14 MR. WOOTEN: I thought I was trying to clear that
15 up.
16 THE COURT: Okay. I think she had some confusion
17 in her answer so why don't you ask it again?
18 MR. WOOTEN: Yes, sir.
19 Q. (BY MR. WOOTEN) Can we go back through it? And by
20 the way, ma'am, I'm not trying to get you to say anything in
21 particular. I'm just trying to figure out where you're at. So
22 let's go through this for a second.
23 Do you understand that there is Special Issues in
24 Capital Murder and there is a guilt/innocence portion of the
25 trial? Right?
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1 A. Yes.
2 Q. Okay. And then you ask the jury whether they think
3 that the -- they ask the jury this Special Issue, and we call
4 that the future danger issue. And then if somebody is found
5 beyond a reasonable doubt by unanimous vote that they are a
6 future danger, then we move over to Special Issue 2, which you
7 and I haven't spoken about yet.
8 But what I'm asking you is if you -- because we
9 can't just pretend that you haven't -- if you're a juror and
10 you're looking at Special Issue 1, the one thing we know for
11 sure is that you've found a defendant guilty of Capital Murder.
12 Because that's the way it works. It's got to go one, two,
13 three. Does that make sense to you?
14 A. Yes.
15 Q. Okay. Now if you have found a defendant guilty of
16 Capital Murder, which as we know is the death of another person
17 by violence, if you found that defendant guilty of Capital
18 Murder, can you envision yourself answering Special Issue No. 1
19 no?
20 MS. YENNE: Object to the form of the question.
21 THE COURT: Overruled.
22 A. I would have to say that from the evidence, and
23 without hearing the evidence, that I would have to be open
24 until I hear all the evidence.
25 Q. Okay. And based -- based on that, are you saying to
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1 me that you can envision yourself answering that question no?
2 A. I can answer yes or no.
3 Q. Okay. Now let's talk a little bit about Special Issue
4 No. 2. Well, let's stop for a second and talk a little bit
5 about some of the stuff that Ms. Yenne went through, the
6 presumption of innocence and testifying.
7 You know, what I find is that sometimes people do
8 expect, just through human nature, to hear from somebody. And
9 it doesn't -- it seems to be the thought out there -- because
10 I've heard a lot of jurors talk. This may not be you. Please
11 tell me if it's not -- that if somebody were to say to me about
12 me, Wooten, you're on trial now. You stole a loaf of bread.
13 You would expect Wooten to stand up and say, if
14 Wooten was innocent, that Wooten would stand up and say, no, I
15 didn't.
16 Now maybe not if it was just a loaf of bread
17 case. Okay? But as it gets more and more serious -- because,
18 obviously, the more serious the crime, the worse it is for the
19 person or about the person that's accused, right? Like I'm not
20 as worried about being accused of getting pulled over the other
21 night after this trial as I am -- true story -- as I am about
22 being accused of some -- of a robbery. You know, robbing
23 somebody with a knife or something. That would -- obviously,
24 people would think worse of me if they thought I robbed
25 somebody with a knife than they would think of me if they
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1 thought that I had sped down 35. Right?
2 A. Yes.
3 Q. Does that make sense?
4 A. Yes.
5 Q. And what I'm getting at is this is the most serious
6 criminal charge we have. And so a lot of time people will say,
7 man, if somebody accused me of Capital Murder, I would stand up
8 if I was innocent and I would say, oh, heck no. That was not
9 me. Let me tell everybody I can find.
10 And then that -- since they would do that, we
11 then come -- that's in their heads. So we come back to them
12 and say, listen, to be a good juror, you have to be -- and let
13 me be real clear. You can't consider it at all for any
14 purpose. You have to take it totally out of your mind. And it
15 seems to me in my experience that the more serious the crime
16 is, the harder people have with this concept. The harder time
17 they have with this concept.
18 Do you feel like if you're in a jury room and
19 you're deliberating on a Capital Murder case and the defendant
20 did not testify, that you could not consider that in any way in
21 your deliberations?
22 A. Yes. Without them testifying, I would be open, you
23 know, to that.
24 Q. Okay. And to be clear, you're telling me that you
25 could not consider it for any purpose at all in any way?
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1 A. That they didn't have to testify on their behalf?
2 Q. Yes, and -- I'm sorry.
3 A. That they would not have to testify on their behalf,
4 would I have to consider that?
5 Q. Yes, ma'am.
6 A. That's the law.
7 Q. It is the law, but a lot of times -- and see, what
8 we're doing here is the law doesn't change, right? What
9 changes are the people that get in that chair.
10 A. Uh-huh.
11 Q. And sometimes people don't -- they are not the best
12 person for a case. You know? I'm not saying that about you or
13 not about you.
14 A. Right.
15 Q. But, you know, the law stays the same; but the people
16 in the chair change. And sometimes they can do what the law
17 requires and sometimes they find it too difficult. Because
18 they might need to go down the road in two years and serve on a
19 civil case. So -- and I'm not saying that's you or not you.
20 We talk to a bunch people. I'm about to go hoarse at the end
21 of this week.
22 A. Uh-huh.
23 Q. So I'm asking you, you know, on this kind of case
24 could you sit back there -- and I know -- I want to make sure
25 you don't think I'm saying that would you find him guilty. Of
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1 course you wouldn't do that. But I'm saying can you go through
2 this process that I'm describing, which is all the way through
3 your jury deliberations, and you could not consider the fact
4 that he didn't -- hadn't testified for any reason?
5 A. Yes, I can consider that.
6 Q. Or follow that?
7 A. Follow that.
8 Q. Okay.
9 A. You know, that he didn't testify.
10 Q. Okay. Yes, ma'am. And let me go ahead and segue into
11 what I think is the hardest thing I'm going to ask you about,
12 which is -- let's say you're in that same jury room we talked
13 about. And Ms. Yenne talked about this, but I want to make
14 sure that we put it in context.
15 Let's say that there is a confession in the case
16 that you're a juror on a Capital Murder. Ms. Yenne talked
17 about that. And let's say that, as she says, the cat is out of
18 the bag. Because as the normal process, the Defendant has the
19 right to ask the Judge to get rid of a -- of what they believe
20 is an illegally obtained or impermissibly obtained or something
21 is wrong with a confession. They also have the ability to ask
22 the jury to do that.
23 So sometimes what that means -- I know all that
24 just sounded like blah, blah, blah to you. But what that means
25 is that you've heard it now. Okay? And what I'm asking you is
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1 you're sitting in the jury room. You've heard that confession,
2 a videotaped confession in full color and sound and everything;
3 and the person that you're sitting in judgment of has told an
4 officer in detail over a couple hours time exactly how he
5 committed that crime. Furthermore, you believed him. Because
6 there is a reason why confessions come in, they are not hearsay
7 or whatever. It's because generally people don't falsely
8 confess.
9 So you believed it for whatever reason. Now
10 you're in the jury room and the Judge has now told you it turns
11 out that that confession was not kosher for whatever reason.
12 Now, Juror, I need you to 100 percent disregard that
13 confession. Don't consider it at all.
14 And further, so I can make this a harder example
15 for you, that's what did it for you on their beyond a
16 reasonable doubt. Like maybe there wasn't much evidence other
17 than that; but of course, there is this confession. And so the
18 confession is there. You believed it. Now the Court is saying
19 to you that you have to disregard it. And because of the way
20 you judged the evidence, you believe that without that
21 confession, you have to find a person who is charged with
22 Capital Murder, who you believe their confession, you have to
23 find that person not guilty because of that instruction from
24 the Court. Could you in all honesty be able to do that?
25 A. Yes, I can.
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1 Q. Okay. That was a strong answer. I like that.
2 Okay. Now let's talk a little bit about Special
3 Issue No. 2. This is the one I think you were talking about a
4 minute ago, and I want to talk to you a little bit about
5 mitigation. Mitigation is -- well, I think the elected D.A.
6 talked to you about it. I just want to ask you -- first off,
7 we ask people if they can consider and give effect to
8 mitigation. Consider it and give effect to it. Now what I
9 would say is I agree with what the elected D.A. said. You have
10 to decide whether something is mitigation, and then you have to
11 decide whether it's sufficient for you.
12 Now I want to be clear. That's for you. We call
13 it a personal moral judgment. You decide what is mitigating.
14 I want to make sure you understand that list that the elected
15 D.A. put up there, that's not a finite list. That was her
16 way -- and it's a really good way because it really does go
17 across the spectrum -- of showing you different things that can
18 be mitigating. But what she's really saying to you when she
19 showed you that giant spectrum of all those things is it can be
20 anything. Do you understand that?
21 A. Yes.
22 Q. Okay. And what I need to know is -- and by the way,
23 you can find mitigation based on mercy alone. Do you
24 understand that?
25 A. Yes.
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1 Q. Okay. But I want to ask you could you consider and
2 give effect to low intellectual function for somebody on a
3 Capital Murder case? Could you consider and give effect to
4 that as mitigation?
5 A. I can be open to that.
6 Q. Okay. Could you consider and give effect to drug
7 addiction?
8 A. I can be open to that.
9 Q. And when you say open to that, are you agreeing that
10 you could consider and give effect to it?
11 A. Yes, I can.
12 Q. Okay. What do you mean by open to it?
13 A. It means that did it drive the behavior or are we
14 going to get into a repeat crimes.
15 Q. Okay. Could you consider and give effect to brain
16 damage as a mitigation circumstance?
17 A. Yeah. It could have affect on their behavior.
18 Q. Okay. Would it -- could it lead to -- could it, not
19 would it. Could it lead to you saying that it's a --
20 sufficient mitigating circumstance for you in a Capital Murder
21 case?
22 A. It could be either/or.
23 MS. YENNE: Your Honor, I'm going to object to
24 the weight. I think this goes down to weight.
25 THE COURT: I'll sustain the objection as to
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1 weight.
2 MR. WOOTEN: Yes, sir.
3 Q. (BY MR. WOOTEN) Let me ask you this, ma'am. We're
4 talking about personal moral judgments. There is a reason we
5 call it that funny name, reasoned moral response, personal
6 moral judgment, is because this is a very odd situation. This
7 is a safety valve in the law allowing the jury, a jury that has
8 found somebody guilty of Capital Murder and found them to be a
9 future danger, it's a safety valve that allows them to still
10 spare their life.
11 You'll notice there is no burden on this. Nobody
12 has to prove that to you beyond a reasonable doubt. Nobody is
13 required to bring it to you. It's up to you to make that
14 personal moral judgement as to whether something is mitigating
15 and whether something is sufficient. Does that make sense?
16 A. Yes.
17 Q. Okay. And what I would say is that in your
18 deliberations in a jury room sometimes things can get very
19 heated. Does that make sense to you?
20 A. Yes.
21 Q. And just like politics or religion or any other really
22 serious topic, sometimes people have views and they really want
23 other people to follow their views. Can you agree with me?
24 A. I can agree that that -- I can see that happening.
25 Q. Uh-huh.
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1 A. But my own individual mind of thinking, you know --
2 Q. Yes, ma'am.
3 A. -- I would have to, you know, just look at it from
4 when we get into the room. You know?
5 Q. Right. And what I'm saying is would you be -- would
6 you let somebody bully up on you?
7 A. No.
8 Q. Or harass you?
9 A. No bullying, no harassing.
10 Q. Okay. Would you let that happen to any other juror?
11 I mean, you seem like a take-charge kind of woman. Could you
12 at least say to somebody, hey, that poor little person over in
13 the corner, you know, let's keep this civil. Let's not have
14 any bullying. Let's not have any harassing.
15 A. I would go with let's keep it civil and do what we
16 were sent in here to do.
17 Q. Okay. And what I would say to you is that, you know,
18 at some point there are oaths that you take as jurors. The
19 oath you have now is just to tell the truth.
20 A. Yes.
21 Q. But if you take an oath to be on the jury, it starts
22 out it says you and each of you. Does that make sense to you?
23 A. Yes.
24 Q. Okay. And does that suggest to you that every person,
25 every juror's decision, especially in Special Issue No. 2,
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1 should be their own decision?
2 A. Can I ask a question?
3 Q. Absolutely.
4 A. If each person has they own view, then how would we
5 come to a decision?
6 Q. Well, here is what I will say to you is -- and notice
7 that if I say something wrong, the State always jumps up. So
8 what I'm about to say is true.
9 MS. YENNE: That's my job.
10 Q. I'm citing Ms. Yenne is still seated, okay, as
11 authority.
12 MS. YENNE: Not yet.
13 Q. It's up to you what's mitigating.
14 A. Okay.
15 Q. Up to you to decide if it's sufficient. And so what I
16 would say to you is everybody gets their own vote.
17 A. Okay.
18 Q. And they go with that. And I think what I think
19 everybody in this room will believe is if Juror No. 8 gets on
20 this jury, we want to know what Juror No. 8 thought about all
21 these Special Issues. We don't want it to be Juror 9's opinion
22 twice.
23 A. Okay.
24 Q. We really want it to be Juror No. 8.
25 A. Yes.
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1 Q. Because we qualified that juror. We like that juror.
2 We want to hear from that juror.
3 A. It would be individual.
4 Q. Okay.
5 MR. WOOTEN: I pass this juror, Judge.
6 THE COURT: Thank you very much. Ms. Woods, if
7 you will just step down, the bailiff will take you out to the
8 walkway. We'll be back with you in a few minutes. Leave your
9 questionnaire. Just leave your questionnaire there. Just
10 remember all the instructions I've previously given you.
11 VENIRE PERSON: I will. Thank you, Judge.
12 (Venire person out.)
13 THE COURT: We are continuing on the record.
14 Ms. Woods has left the courtroom. Mr. Harris and counsel are
15 all still present.
16 I present Ms. Woods to the State for challenge
17 for cause.
18 MS. YENNE: None.
19 THE COURT: I present Ms. Woods to the defense
20 for challenge for cause.
21 MR. WOOTEN: Yes, Judge. We have several
22 challenges for cause. After the first question that I asked
23 her with the hypothetical, she said that the only appropriate
24 penalty was the death penalty. She said that is accurate.
25 I believe that based on that that she has shown a
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1 lack of an open mind, a lack of fairness for that particular
2 situation, as the death penalty being the only appropriate
3 response.
4 I also would say that several times on Special
5 Issue No. 1, even though she was confused about it, admittedly,
6 I do believe if the Court looks to the totality of her answers
7 that she seemed to say definitively, at least at one point,
8 that she would -- it would always have to be yes for me. Then
9 I think later -- and this is just my argument. I think later
10 she started thinking to herself that's not really the way a
11 juror is supposed to act, and I think she conformed herself. I
12 think she conformed herself with the later questioning. But I
13 think what we got a glimpse of was her true original first
14 thoughts before she then started thinking how am I supposed to
15 act?
16 And I think Patton versus Yount that we talked
17 about this morning, I think the Court can, obviously, look
18 through the things that she said and come to a decision.
19 Because obviously, Judge, it's up to the Judge to decide these
20 causes; and I would ask that you look and look at her totality
21 of her answers.
22 And I believe -- she also said she had shared her
23 father's views. Her father seemed to be pretty -- he's not
24 here, but he seemed to be pretty pro death penalty. So I
25 believe overall if you look at her answers and look through to
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1 what I thought were glimpses of her true feelings, I believe
2 that she's not qualified for this jury.
3 THE COURT: Response from the State?
4 MS. YENNE: I believe this juror is very
5 qualified. I too ask the Court to look at the totality of her
6 responses. The juror on multiple occasions asked counsel to
7 clarify what he was asking. The hypothetical question
8 suggested one answer as the only appropriate penalty, again,
9 which was the same objection the State has been making
10 repeatedly. The juror themselves thought about it and
11 corrected it and said it would be yes or no.
12 The line of questioning that suggested could you
13 ever answer that question yes, well, certainly that will be an
14 appropriate response, yes, because you're not saying is it the
15 only answer you'd ever have. This juror repeatedly said she
16 could keep an open mind, could answer yes or no to all of the
17 questions, including mitigation.
18 THE COURT: Considering the totality of it, her
19 response to queen of the world was either. Her response to
20 facts and circumstances, she did say to that first hypothetical
21 that the answer would be the only appropriate; but I think that
22 later on it came back that she clearly said she could consider
23 all the facts and all the circumstances. And I think that on
24 totality I'm going to overrule your objection to the challenge
25 for cause.
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1 Present the witness to the -- or pass the witness
2 to the State for any peremptory challenge.
3 MS. YENNE: None.
4 THE COURT: Pass to the defense for a peremptory
5 challenge.
6 MR. WOOTEN: Yes, Judge.
7 THE COURT: Do you want to visit with your
8 client?
9 MR. WOOTEN: Yes, Judge.
10 Judge, I've spoken to my client. He agrees with
11 the decision, and he certainly welcomes your questions.
12 THE COURT: Mr. Harris, you understand that your
13 counsel wishes to exercise another peremptory challenge on this
14 potential juror? Have you had a chance to discuss that with
15 them?
16 THE DEFENDANT: Yes, Your Honor.
17 THE COURT: And you are in agreement to -- you
18 have no objection to your attorney exercising a peremptory
19 challenge to this potential juror?
20 THE DEFENDANT: No, Your Honor.
21 MR. WOOTEN: Judge, may I ask my client a
22 question?
23 THE COURT: Yes, you may.
24 MR. WOOTEN: Mr. Harris, you told me, if you
25 don't mind me saying so, that you feel -- you felt that she was
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1 too much in favor of the death penalty for you?
2 THE DEFENDANT: Yes, Your Honor.
3 MR. WOOTEN: Is that correct?
4 THE DEFENDANT: That's correct.
5 THE COURT: All right. I believe that is
6 Defendant's Peremptory 5. I'll grant Peremptory 5.
7 Mr. Falks, would you have Ms. Woods come back?
8 (Venire person in.)
9 THE COURT: We're continuing on the record.
10 Counsel, you may be seated.
11 The record will reflect that all counsel and
12 Mr. Harris are present. Ms. Woods has now returned to the
13 courtroom.
14 Ms. Woods, I want to thank you very much for your
15 desire to do your civic duty, for giving three days of your
16 life to perpetuate the system that is very important and that's
17 a right of trial by jury. At this time I'm going to excuse you
18 from any further jury service in this case. However, before I
19 do that, I want to ask you to please remember and continue to
20 follow all of the instructions that I gave you last week. Do
21 you remember all of those?
22 VENIRE PERSON: Yes.
23 THE COURT: The one exception is since you will
24 not be serving as a juror on this case, if there is any media
25 publicity about it, you will be free to look at it and read it
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1 VENIRE PERSON: Yes, sir.
2 THE COURT: All right.
3 Ms. Yenne, you may proceed.
4 STEPHANIE COOPER,
5 having been first duly sworn, testified as follows:
6 VOIR DIRE DIRECT EXAMINATION
7 BY MS. YENNE:
8 Q. Good afternoon, Ms. Cooper. How are you?
9 A. Fine, thank you.
10 Q. My name is Jeri Yenne, and I'm the Criminal District
11 Attorney here for Brazoria County. Seated to my left is Mary
12 Aldous, my first assistant; and we represent the State of
13 Texas.
14 Mary Conn and Kerri Mallon represent the
15 Defendant, James Harris, Jr., seated over there at the left.
16 Okay?
17 The Judge has told you that this is a Capital
18 Murder case, the State of Texas versus James Harris, Jr.
19 Whenever anyone is on trial, the goal of the State and the
20 defense -- we're both entitled to a fair trial -- is just to
21 obtain jurors who can be fair and follow the law as given to
22 them from the Court. Okay?
23 A. Yes.
24 Q. So this is the only time we have an opportunity --
25 because of the nature of the case, a potential death penalty --
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1 to talk to jurors individually. Okay?
2 A. Yes.
3 Q. So I want to go through some things with you. All
4 right?
5 This is the State of Texas versus James Harris,
6 and the indictment charges -- there is a copy of the
7 indictment -- that on or about the 14th day of January, 2012,
8 and before the presentment of the indictment, in Brazoria
9 County, Texas, the Defendant did then and there intentionally
10 cause the death of an individual, Alton Wilcox, by stabbing
11 Alton Wilcox with a knife, and the Defendant was then and there
12 in the course of committing or attempting to commit the offense
13 of Robbery of Darla Wilcox.
14 It also alleges in the second paragraph on or
15 about the same day, January 14th, 2012, in Brazoria County,
16 Texas, the Defendant did then and there intentionally cause the
17 death of an individual, to-wit: Alton Wilcox, by stabbing Alton
18 Wilcox with a knife, and the Defendant was then and there in
19 the course of committing or attempting to commit the offense of
20 Burglary of a Habitation owned by Darla Wilcox.
21 And the third paragraph alleges on or about the
22 same day, the 14th day of January, 2012, before the indictment
23 was presented in Brazoria County, Texas, the Defendant did then
24 and there intentionally cause the death of an individual,
25 to-wit: Alton Wilcox, by stabbing Alton Wilcox with a knife,
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1 and Defendant was then and there in the course of committing or
2 attempting to commit the offense of Burglary of a Habitation
3 owned by Alton Wilcox.
4 So it's one charge of Capital Murder, just
5 different ways of committing it. Okay?
6 A. Yes.
7 Q. Now that's what I have to prove to you if you were a
8 juror. So I'm going to ask you some principles.
9 Murder is intentionally causing the death of an
10 individual. No accident, no mistake, no self-defense, no
11 insanity, no defending anybody else, nobody defending property.
12 Intending the result. Intentional, cold-blooded, unjustified
13 killing. Okay?
14 A. Yes.
15 Q. So if a neighbor gets mad and decides he is going to
16 kill the neighbor, so they plan a little bit, go get a gun,
17 catch the neighbor on the street and shoot the neighbor to
18 death, they intended to cause the result. Am I making sense?
19 A. Yes.
20 Q. Okay. Unjustified. No reason.
21 Now Capital Murder is murder plus. So I'm going
22 to tell you -- before you look at the screen, I'm going to tell
23 you some of the things that can raise -- that was regular
24 murder. I know that's hard to believe I call it plain-vanilla
25 murder. Then what raises regular murder -- intentionally
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1 causing the death of an individual, meaning the result, killing
2 them, intended result -- to Capital Murder? I call it murder
3 plus something else. Okay?
4 If I intentionally kill a police officer, knowing
5 that they are a police officer in the line of duty, while they
6 are performing their duties. If I intend to kill more than one
7 person -- I intend to kill them and I walk in a convenience
8 store and I shoot the place up, intending to shoot the patrons.
9 Okay? More than one person during the same criminal
10 transaction. If I hire somebody to intentionally kill someone
11 else, murder for higher. If I intentionally kill a child under
12 the age of 10, that's Capital Murder.
13 And now there is this type on the screen. The
14 person intentionally commits the murder in the course of
15 committing or attempting to commit kidnapping, burglary,
16 robbery, aggravated sexual assault, arson, obstruction or
17 retaliation, or terroristic threat.
18 And as you can see, the indictment alleges that
19 they intended the murder, to cause the murder, during the
20 course of burglary or robbery. Okay?
21 A. Yes.
22 Q. Those are the things that aggravate it and raise it
23 up. Okay?
24 Now a person acts intentionally or with intent
25 with respect to a result of his conduct when it is his
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1 conscious objective or desire to cause the result. Intend the
2 death. Am I making sense?
3 A. Yes.
4 Q. Okay. So let's go a little further. Now what I read
5 to you in the indictment is what I have to prove to you beyond
6 a reasonable doubt. Not beyond all doubt. So you would get an
7 instruction if you were on a jury that the prosecutor has the
8 burden of proving the Defendant guilty, and it must do so by
9 proving each and every element of the offense charged beyond a
10 reasonable doubt. It is not required that the prosecution
11 prove guilt beyond all possible doubt. It is required that the
12 prosecution's proof excludes all reasonable doubt concerning
13 the Defendant's guilt. Okay? Could you follow that
14 instruction?
15 A. Yes.
16 Q. Okay. Now that's the highest burden of proof. We're
17 going to talk in a minute.
18 Let's say that I had a bad week, Ms. Cooper. I
19 just didn't prove to you -- and I intend to prove to you
20 everything -- Brazoria County. You know, I only have
21 jurisdiction over this county, but -- I mean, I can't prove a
22 crime out of the State or Texas or El Paso or Houston, nor
23 should I. Would you hold the State to their burden of beyond a
24 reasonable doubt?
25 A. Yes.
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1 Q. Okay. That's my job. The police have their job and I
2 have my job, right?
3 A. Yes.
4 Q. So I had a bad week, and I did not prove to you the
5 elements of Capital Murder beyond a reasonable doubt. That's
6 my problem. I either prove it to you or I don't. It's not the
7 jury's problem. Can you find someone not guilty if I do not
8 prove to you beyond a reasonable doubt what's alleged in the
9 indictment?
10 A. Yes.
11 Q. Okay. But by the same token, if I prove to you beyond
12 a reasonable doubt what is alleged in the indictment, can you
13 find someone guilty?
14 A. Yes.
15 Q. Okay. Let's go a little further. The State is
16 required to prove to you the elements alleged in the
17 indictment. Okay? There will always be inconsistencies in any
18 case.
19 And let me give you an example. The element
20 intending to cause the death, Brazoria County, is not an
21 element. It's a presumptive fact. It's not actually an
22 element, but I intend to prove that to you. I haven't ever
23 forgotten yet. Okay? In the course of the robbery or
24 burglary, okay, that's what I'm required to prove to you beyond
25 a reasonable doubt. And I either do it or I don't, right?
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1 A. Right.
2 Q. It's a serious charge, is it not?
3 A. Yes.
4 Q. And I have some serious responsibility.
5 A. Yes.
6 Q. So there will always be inconsistencies in any case.
7 Let me give you an example. Let's pretend there is a car wreck
8 outside the courthouse. A guy is charged with running a red
9 light. Ten witnesses saw him run the red light. He hit
10 another car. He admits he ran the red light, and he's charged
11 with running the red light. So I proved to you beyond a
12 reasonable doubt what he's charged with. There will always be
13 inconsistencies with people thinking, well, was it 3:20 or 3:30
14 in the afternoon.
15 A. Right.
16 Q. Or the color of the car. They may not go to the
17 elements of the indictment. Okay? So can you see the
18 distinction?
19 A. Yes.
20 Q. Let's go a little further. Levels of burden of proof.
21 The lowest burden of proof is preponderance of the evidence.
22 It's the greater weight and degree of credible evidence. Civil
23 cases where people sue one another, car accidents. It's just
24 slightly tipping the scales. 50 percent plus a little grain of
25 sand.
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1 A. Yes.
2 Q. I always try to tip the scales the other way in the
3 morning. It doesn't work for me. But this is slightly tipping
4 them up.
5 The next highest burden of proof, civilly, is
6 clear and convincing evidence. That measure or degree of proof
7 that produces a firm belief or conviction that the allegations
8 sought to be established are true. Parental rights termination
9 cases when CPS tries to terminate parental rights in court.
10 That's a higher civil burden. It should be, shouldn't it?
11 A. Yes.
12 Q. Okay. And then the highest burden of all. Beyond a
13 reasonable doubt is higher than preponderance and higher than
14 clear and convincing. Okay? See, the lowest is preponderance,
15 the middle one is clear and convincing, the highest burden of
16 proof is beyond a reasonable doubt. So you told me you could
17 hold me to that burden?
18 A. Yes.
19 Q. It's the only one that doesn't have a definition.
20 A. Right.
21 Q. It's up to the jury. Okay?
22 A. Right.
23 Q. Let me go a little further. You would get a legal
24 instruction. All persons are presumed to be innocent and no
25 person may be convicted unless each element of an offense is
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1 proved beyond a reasonable doubt. The fact that a defendant
2 has been arrested, confined, or indicted for, or otherwise
3 charged with an offense gives no rise to inference of guilt at
4 his trial. Okay?
5 That's the presumption of innocence. If you or I
6 were charged with a crime or a family member or a friend, that
7 person is presumed innocent until the State comes forward with
8 evidence to show you otherwise. Okay?
9 A. Yes.
10 Q. So my question for you is as he sits here today, can
11 you presume Mr. Harris innocent?
12 A. Yes.
13 Q. Okay. And require me to produce evidence, right?
14 A. Yes.
15 Q. Now the defense has no burden of proof. The law does
16 not require a defendant to prove his innocence or produce any
17 evidence at all. The Defendant never, ever, ever has to bring
18 you any evidence, whether it's a DWI, a misdemeanor, a felony,
19 a burglary. The defense has no burden of proof. So could you
20 follow that?
21 A. Yes.
22 Q. I either make my case or I don't.
23 A. Right.
24 Q. Okay?
25 A. Yes.
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1 Q. Let me go a little further. Fifth Amendment privilege
2 against self-incrimination. Every defendant in any criminal
3 case has a right not to testify. You cannot consider it for
4 any reason. That's an instruction. Can you follow that
5 instruction?
6 A. Yes.
7 Q. Okay. If you or I were charged with a crime or a
8 friend or anybody we knew, misdemeanor or felony, we all -- and
9 this is a fundamental right in our country, which to me
10 distinguishes us from other countries. Okay?
11 A. Uh-huh.
12 Q. We each have a right, a Fifth Amendment privilege,
13 against self-incrimination.
14 A. Yes.
15 Q. Now would you agree with me, Ms. Cooper, that some
16 people are just farther ahead before they open their mouths?
17 A. Yes.
18 Q. I'm always told that at my house. You were ahead
19 until you tried to explain it. So some people don't present
20 themselves as well as they hope to. Is that a fair statement?
21 A. Yes.
22 Q. Okay. Sometimes they make it worse. So there might
23 be various reasons besides someone's guilt that they might
24 choose not to testify.
25 A. Correct.
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1 Q. Okay. So we never know whether a defendant is going
2 to take the witness stand or not. But if they did not, you
3 would get that instruction that you cannot consider it for any
4 reason. Can you follow that?
5 A. Yes.
6 Q. So if I don't prove to you beyond a reasonable doubt
7 the elements of the indictment and the Defendant didn't
8 testify, I just fell on my face. I didn't prove it to you. Am
9 I making sense?
10 A. Yes.
11 Q. It doesn't matter and you can't consider the fact a
12 defendant didn't testify.
13 A. Right.
14 Q. Okay. Now let's go a little further. If you had to
15 vote right now, you would have to vote not guilty. You haven't
16 heard any evidence.
17 A. Correct.
18 Q. Okay. So am I sort of making my point?
19 A. Uh-huh.
20 Q. Okay. A defendant never has the burden of proof,
21 right?
22 A. Right.
23 Q. Okay. The indictment alleges one charge of Capital
24 Murder of victim Alton Wilcox with alternate methods of
25 committing the same, by robbery or by burglary. Okay?
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1 Intentionally causing Alton Wilcox's death by stabbing him to
2 death.
3 As long as the jury agrees beyond a reasonable
4 doubt that the elements of Capital Murder are met, the jury
5 does not need to agree unanimously on which manner or means,
6 being robbery or burglary. Six of them could believe he
7 intentionally caused the death of Alton Wilcox during the
8 course of committing robbery. Six could believe he
9 intentionally caused the death during the course of committing
10 burglary. Am I making sense?
11 A. Yes.
12 Q. Okay. Direct evidence. If you were on a jury there
13 is certain types of evidence. Evidence that directly
14 demonstrates the ultimate fact to be proven. Direct evidence
15 is maybe eyewitness testimony, a video of a crime, sometimes a
16 confession. Okay?
17 A. Right.
18 Q. Now I hate this definition, but this is what it is.
19 Circumstantial evidence is evidence that is direct proof of a
20 secondary fact which, by logical inference, demonstrates the
21 ultimate fact to be proven.
22 Okay. There is a little 5-year-old boy. His
23 parents have a backyard pool. He asks his mom -- he wants to
24 go swimming; and she says, not right now, honey, later.
25 And so she goes about her housework. The next
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1 thing you know, pitter-patter of the feet on the stairs, back
2 door opens, big splash is heard. Mom goes to the backyard, the
3 little boy is laying in the lawn chair dripping wet in his
4 swimsuit.
5 Now Mom can figure out from those secondary facts
6 that he had been in the pool, right?
7 A. Right.
8 Q. Without witnessing it?
9 A. Right.
10 Q. I'm going to give you an example from my own childhood
11 when I was 4 years old and my brother was 3. My mom was sick.
12 She was -- this was long before the days -- they used to use
13 St. Joseph's baby aspirin for kids.
14 A. Right.
15 Q. Now it's supposed to kill children, but we got it as a
16 child.
17 A. Yeah.
18 Q. I always think medicine seems to change these days,
19 doesn't it?
20 A. Yes.
21 Q. So we had three bottles of St. Joseph's baby
22 aspirin -- tasted like orange candy -- on top of the
23 refrigerator. All right? Good tasting. Have you had some?
24 A. I have.
25 Q. Okay. It's like candy. So my mom went down to bed
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1 after checking on her kitchen timer when she gets back up in
2 15-minutes. But when she went to lay down, my brother looked
3 at me and said he was hungry. We got on the stool. We got the
4 St. Joseph's baby aspirin down. We ate about 150 aspirin. I
5 ate one bottle. My brother ate two.
6 My mom gets up and she panics. She sees the
7 aspirin bottles, the cotton laying all over, and she says, who
8 ate these aspirin? My brother and I looked at her. We pointed
9 to the cat. Now my mom knew the cat had not eaten the aspirin.
10 A. Right.
11 Q. So she had to make a decision based on those secondary
12 facts.
13 A. Sure.
14 Q. So my question to you is if the State proved to you
15 beyond a reasonable doubt the elements of the offense, can you
16 convict someone of Capital Murder based on circumstantial
17 evidence?
18 A. Yes.
19 Q. Okay. Now there are other types of evidence. I had
20 mentioned to you on direct evidence there was eyewitness
21 testimony. Now some crimes are committed in front of a
22 football stadium full of people these days. Some are on
23 videotape. Some are committed in front of no one. Some are
24 committed in front of ten witnesses, two, or one.
25 So if this were a case with an eyewitness, one
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1 eyewitness, if I prove to you the elements of the indictment
2 beyond a reasonable doubt, if you listen to an eyewitness'
3 testimony, one eyewitness, and you believed that eyewitness'
4 testimony beyond a reasonable doubt and that eyewitness'
5 testimony established all of the elements of the indictment to
6 you beyond a reasonable doubt, could you convict based on
7 testimony of that eyewitness?
8 A. Yes.
9 Q. Okay. Let me go a little further. Penalty range for
10 Capital Murder. In order to sit on any jury you have to be
11 able to consider the penalty range. If this were a robbery,
12 you would have to be able to consider the robbery penalty
13 range. DWI, you'd have to consider it. Whatever drug level
14 offense. Consider means that you will -- you know, I can't
15 give you a legal definition; but it means that you will keep an
16 open mind and fully and fairly review and consider both options
17 before making a decision.
18 MS. CONN: I'd object. I didn't hear the first
19 part of that. I think you said something about you were not
20 giving a definition?
21 MS. YENNE: I was not giving a definition.
22 MS. CONN: Okay.
23 Q. (BY MS. YENNE) When I say consider I mean unless --
24 the law is not going to give you a definition. So will you
25 fully and fairly review and consider the full range of
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1 punishment?
2 A. Yes.
3 Q. So I'm going to say to you the penalty range for
4 Capital Murder is a very limited range. Two options. If you
5 were to convict someone of Capital Murder -- or the jury was to
6 convict someone of Capital Murder, there is two options. Life
7 without parole or the death penalty. Okay?
8 A. Right.
9 Q. Just two. Life without parole or the death penalty.
10 Would you consider both of these to be serious punishments?
11 A. Yes.
12 Q. Okay. Life without parole is serious?
13 A. Yes.
14 Q. Is the death penalty the ultimate serious?
15 A. Absolutely.
16 Q. Okay. Could you consider the full penalty range for
17 Capital Murder?
18 A. Yes.
19 Q. Okay. Some people say, well, the minute I find
20 someone guilty of Capital Murder, I'm going to give them the
21 death penalty. I don't need to hear anything else. Is that
22 you, or will you consider the full penalty range?
23 A. I will consider it.
24 Q. Okay. And there's never going to be a good kind of
25 Capital Murder, is there?
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1 A. No.
2 Q. Okay. There is never going to be a good kind of
3 murder, is there?
4 A. No.
5 Q. Okay. One of the things before -- when you're sitting
6 on a jury, we have to know that someone can honestly keep an
7 open mind. Would you agree with me that no two circumstances
8 of a murder are the same?
9 A. Yes.
10 Q. Would you agree with me that no two circumstances of
11 Capital Murder are the same?
12 A. Yes.
13 Q. Okay. People could know each other, they could be
14 strangers, they could be drug related or substance abuse
15 related, could not be. All right?
16 A. Right.
17 Q. Victim could have placed themselves in a situation or
18 not. So there is a reason the legislature has a penalty range.
19 No one can commit you to what you would do; and in order to sit
20 on a jury, you have to be able to honestly consider the full
21 range of punishment and apply the facts when you hear all the
22 evidence. Am I making sense?
23 A. Yes.
24 Q. That's why there is a penalty range for each crime.
25 Do you think that's a pretty good reason, too?
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1 A. Yes.
2 Q. Okay. Lesser-included offense. In a prosecution for
3 an offense with lesser-included offenses the jury may find the
4 Defendant not guilty of the greater offense but guilty of a
5 lesser.
6 So let's say I did not prove to you beyond a
7 reasonable doubt the burglary or robbery elements of Capital
8 Murder, and the Defendant -- and the jury decided that I didn't
9 prove that beyond a reasonable doubt. They would find the
10 Defendant not guilty of Capital Murder, right?
11 A. Right.
12 Q. They may then be asked to go on and consider a
13 lesser-included because murder is always an included in capital
14 murder. Okay?
15 A. Right.
16 Q. And that would be regular murder, intentionally
17 causing the death of an individual. No justification, no
18 excuse. Never self-defense because if it was self-defense, you
19 would have acquitted him. He would have been found not guilty.
20 Am I making sense?
21 A. Right.
22 Q. The penalty range for regular murder is not less than
23 5 years nor more than 99 years -- it includes a life sentence,
24 but that's with parole possibility -- and up to a 10,000-dollar
25 fine. So if you had found someone not guilty of Capital Murder
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1 and you convicted them of murder, in order to sit on a jury you
2 have to be able to honestly consider the full penalty range.
3 Can you consider the full penalty range for murder, including
4 from the minimum to the maximum?
5 A. Yes.
6 Q. Okay. Would you apply the facts of the case?
7 A. Yes.
8 Q. Even if you had found someone not guilty of Capital
9 Murder, then you had to consider murder, you can honestly keep
10 an open mind and consider the full penalty range for murder and
11 determine what's fair?
12 A. Yes.
13 Q. Okay. No one can commit you to what you would do.
14 Would you say it's a fair statement that I can't commit you to
15 what you would do without hearing all the evidence?
16 A. That would be true.
17 Q. Okay. And if someone were a juror, they would need to
18 listen to all the evidence, wouldn't they?
19 A. True. Yes.
20 Q. Not make up their mind before hearing that evidence.
21 A. No.
22 Q. Especially in a Capital Murder case.
23 A. Yes.
24 Q. All right. Witness credibility. Jurors are the sole
25 judges of the credibility of the witnesses. Jurors can believe
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1 all, some, or none of what a witness says. All witness have
2 equal credibility before they begin to testify. You get to
3 decide whether you believe them or not after they testify.
4 A. Right.
5 Q. Okay. But you got to start them out equally. Can you
6 do that?
7 A. Yes.
8 Q. Okay. Now some people -- I notice that you're married
9 to a police officer?
10 A. I am.
11 Q. Okay. Now you of all people -- and I'm in law
12 enforcement -- see the humanity of other people, right?
13 A. Right.
14 Q. Okay. Now to me people are just people. Some people
15 present themselves well. Not all cops are honest. Is that a
16 fair statement?
17 A. That's fair.
18 Q. Okay. Lots of police officers are honest, and there
19 are some that are not. Fair enough?
20 A. True.
21 Q. So some people say, well, the minute a police officer
22 takes the stand I'm going to automatically believe them or not
23 believe them. Is that you, or will you start everybody
24 equally?
25 A. I will start everyone equally.
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1 Q. Same thing with doctors?
2 A. Yes.
3 Q. Okay. Same thing with all witnesses?
4 A. Yes.
5 Q. Okay. Let's go on. If you sat on the jury, there are
6 going to be some law given to you regarding confessions if
7 there were to be a confession. Sometimes there are. Sometimes
8 there aren't.
9 A confession of a defendant is admissible in
10 evidence if freely and voluntarily made, electronically
11 recorded or written, the confession shows that the accused has
12 been warned prior to making such confession of the right to
13 remain silent, used against him or her in court, the right to
14 have a lawyer, if he cannot afford a lawyer the right to have a
15 lawyer appointed, the right to stop questioning at any time,
16 and that the accused knowingly, intelligently, and voluntarily
17 waives these rights. Okay?
18 A. Yes.
19 Q. Okay. Do you believe that those rights are important?
20 A. Yes.
21 Q. Okay. So you're going to be given an instruction that
22 that's what's required for a confession. Do you believe it's
23 important that the police follow the rules?
24 A. Yes.
25 Q. Okay. We in the criminal justice system, we hold
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1 people's lives in our hands, don't we?
2 A. Yes.
3 Q. We have to play by the rules, don't we?
4 A. Absolutely.
5 Q. Do you believe we have some consequences when we
6 don't?
7 A. Absolutely.
8 Q. Okay. And sometimes public servants should be held to
9 a higher standard when they don't behave, right?
10 A. Yes.
11 Q. Let's go a little further. Let's say there were a
12 confession in a case. Now if you were on the jury it's up to
13 you to decide whether the police complied with the confession
14 rules. Okay? What I just read you.
15 A. Right.
16 Q. But if you do not believe the police complied --
17 that's the jury's decision based on the evidence -- or the
18 confession was involuntary, in other words, not voluntary, you
19 will get an instruction from the Court that you will wholly
20 disregard the alleged statement or confession and not consider
21 it for any purpose. Can you follow that law?
22 A. Yes.
23 Q. Let's go a little further. That's not going to be
24 real popular, but that's --
25 A. Right.
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1 Q. In other words, let's say that you got a confession on
2 a Capital Murder case and it's an ugly -- grueling, ugly,
3 unjustified crime. Innocent victim. Describes in detail what
4 they did to the victim. The police miss a couple warnings or a
5 vital warning. They have not complied. The jury honestly has
6 determined the police have not complied. Can you disregard
7 that statement and not consider it for any purpose?
8 A. Yes.
9 Q. Okay. Now it doesn't say it would be popular, right?
10 A. Right.
11 Q. Okay. Let's go a little further. I told you the
12 burden is on me, and you agree that the State has the burden to
13 prove this to you beyond a reasonable doubt?
14 A. Yes.
15 Q. By credible evidence, right?
16 A. Yes.
17 Q. Okay. Is it important to you that the State prove
18 their criminal case beyond a reasonable doubt?
19 A. Yes.
20 Q. Okay. And that's a burden that I gladly assume. And
21 do you believe it's a burden that should be there?
22 A. Yes.
23 Q. Okay. So let's say you had a grizzly, ugly confession
24 in a Capital Murder case and you believe that the police didn't
25 comply -- that's a jury decision -- or that it was truly
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1 involuntary. You said you could wholly disregard it. And
2 that's means that if I don't have enough evidence to prove it
3 to you beyond a reasonable doubt, you could find someone not
4 guilty?
5 A. Yes.
6 Q. Okay. Now some people say but you've already heard
7 it. The cat is out of the bag.
8 That's a legal instruction from the Court, but
9 you get to determine whether the police complied. Can you
10 follow that law?
11 A. Yes.
12 Q. And as unpopular as it is, can you find someone not
13 guilty if we didn't comply with what we are supposed to do?
14 A. Yes.
15 Q. Okay. Let's go a little further. Voluntary
16 intoxication does not constitute a defense to the commission of
17 a crime. I decide to go out and drink 20 beers and I'm going
18 to go beat somebody up. That's not a defense, is it?
19 A. No.
20 Q. Okay. Can you follow that instruction?
21 A. Yes.
22 Q. Let's go a little further. Causation. A person is
23 criminally responsible if the result would not have occurred
24 but for his conduct, operating either alone or concurrently
25 with another cause, unless the concurrent cause was clearly
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1 sufficient to produce the result and the conduct of the actor
2 clearly insufficient.
3 Now that's a mouthful, but let me give you an
4 example. I live in an apartment. I decide to set a fire. I'm
5 setting a fire in an apartment. An apartment. I kill my
6 neighbors next door. I set the fire, and it's a bad weekend
7 for the fire department. It's a holiday weekend. Three
8 engines are down, and response times are double the amount of
9 time. Maybe on a good day if the engines were working and it
10 wasn't a holiday, the staff wasn't down, the family next door
11 could have been saved. But my conduct in setting the fire was
12 clearly sufficient to cause the result. Do you see the
13 distinction?
14 A. Yes, I do.
15 Q. All right. Let's go a little further. If you were on
16 a jury, you might get an instruction about burglary. A person
17 commits an offense if, without the effective consent of the
18 owner, the person enters a habitation with intent to commit a
19 felony, theft, or an assault, or they enter the habitation and
20 commit or attempt to commit a felony, theft, or assault. They
21 form the intent on the spot.
22 A. Right.
23 Q. Can you follow that instruction and hold me to my
24 burden?
25 A. Yes.
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1 Q. Okay. Robbery. A person commits an offense if, in
2 the course of committing theft and with intent to obtain or
3 maintain control of the property, he intentionally, knowingly,
4 or recklessly causes bodily injury to another.
5 I decide to shoplift. I'm going for makeup at
6 Wal-Mart. The manager interrupts me, and I deck the manager
7 and give him a black eye. I've intentionally, knowingly, or
8 recklessly caused injury in the course of committing theft.
9 Okay?
10 A. Uh-huh.
11 Q. And that means conduct that occurs in an attempt to
12 commit, during the commission or if I'm running away and I
13 knock the manager down to keep the product.
14 A. Okay.
15 Q. Okay? Can you hold me to my burden on robbery?
16 A. Yes.
17 Q. Now Capital Murder -- and I notice you do believe in
18 the death penalty?
19 A. Yes.
20 Q. Okay. Is this serious for you to be here today,
21 Ms. Cooper?
22 A. Yes.
23 Q. It's a serious matter.
24 A. Yes.
25 Q. Now I told you there is two parts of -- two penalty
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1 ranges, life without parole and the death penalty.
2 A. Correct.
3 Q. All right. You've told me you could honestly consider
4 both.
5 A. Yes.
6 Q. Okay. Now let's talk about two parts of a trial, and
7 I want to know if you can follow this process honestly.
8 Because, truthfully, a man's life is at stake, isn't it?
9 A. Right.
10 Q. Guilt/innocence part of the trial. Either guilty or
11 not guilty. I either prove to you beyond a reasonable doubt
12 the elements of the indictment or I don't, right?
13 A. True.
14 Q. It's my responsibility.
15 A. Yes.
16 Q. Not the jury's, right?
17 A. Right.
18 Q. But the jury's responsibility is to follow whether I
19 did it or not, right?
20 A. True.
21 Q. All right. If guilty, you proceed with punishment.
22 If not guilty, you're acquitted.
23 A. Right.
24 Q. And to me that's what it should be, right?
25 A. Yes.
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1 Q. Do you feel that way?
2 A. Yes.
3 Q. All right. Now if someone is guilty of Capital
4 Murder, if I prove to you beyond a reasonable doubt the
5 elements of that indictment, you found someone -- the jury
6 found someone guilty of Capital Murder, you go to the
7 punishment phase. You have to be able to keep an open mind.
8 Can you keep an open mind as to both penalties at that point?
9 A. Yes.
10 Q. Okay. You've told me neither are minor, correct?
11 A. That's true.
12 Q. All right. It's not just a vote for life or death.
13 So here's the principles we're going to talk about. Right
14 after a guilt verdict, before any punishment evidence is
15 presented, you cannot have made up your mind as to the answers.
16 Okay? Now you're not going to feel good about the facts, are
17 you?
18 A. No.
19 Q. It's going to be ugly, right?
20 A. Right.
21 Q. There's going to be emotion?
22 A. Right.
23 Q. Can you separate that emotion and follow the legal
24 instructions?
25 A. Yes.
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1 Q. Okay. Now you're telling me you don't have your mind
2 made up. You can go on to the process?
3 A. Yes.
4 Q. That process would involve answering some questions.
5 Some people say the minute I found them guilty of Capital
6 Murder I would automatically give them the death penalty. Is
7 that you?
8 A. No.
9 Q. Would you consider both options?
10 A. Yes, I would.
11 Q. Okay. Would you agree with me this is the most
12 serious of all penalties anybody could ever face?
13 A. Yes.
14 Q. All right. So you must be able to consider all
15 guilt/innocence evidence but must be able to consider any and
16 all punishment evidence. And we're going to go over that in a
17 minute. In order to consider all the evidence, you have to
18 keep an open mind. Okay?
19 A. Yes.
20 Q. Now that open mind would mean that there are two
21 appropriate penalties possible for you to decide, life without
22 parole or the death penalty, right?
23 A. Correct.
24 Q. Okay. And at that point in time do you honestly feel
25 that there is still two appropriate penalties, life without
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1 parole or the death penalty?
2 A. Yes.
3 Q. Okay. Each question is going to be independent of the
4 verdict. Each question is independent of each other. It has
5 to be based only on the evidence presented.
6 Let me show you what you're going to have to
7 consider.
8 MS. YENNE: Go to that slide, please.
9 Q. She's terrific. She's a lawyer, and she can operate a
10 power point. I cannot.
11 In deliberating on the issues submitted you shall
12 consider all evidence -- all, not some -- all evidence admitted
13 at the guilt/innocence stage, the guilt/innocence trial of the
14 offense, and the punishment stage -- not just some, but all --
15 including evidence of the Defendant's background or character
16 or the circumstances of the offense that militates for or
17 mitigates against the imposition of the death penalty. Okay?
18 So can you follow that instruction?
19 A. Yes.
20 Q. It says you have to consider it. You shall consider
21 all evidence admitted at guilt/innocence and punishment, right?
22 A. Yes.
23 Q. So it's not over until the punishment phase is
24 concluded. Is that a fair statement?
25 A. That is fair.
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1 Q. Okay. Even though he's a guilty Capital Murderer by
2 that time, right?
3 A. Right.
4 Q. Okay. That's not the end of it. You have to honestly
5 keep an open mind.
6 Okay. So let's go -- in deliberating you told me
7 you can consider all the evidence. You would consider it all?
8 A. Yes.
9 Q. Okay. It wouldn't be fair if you wouldn't, would it?
10 A. No.
11 Q. Okay. Let's go a little further. Let's go back to
12 Special Issue No. 1.
13 Okay. So guilty Capital Murderer. You have to
14 keep an open mind, right?
15 A. Right.
16 Q. Then you will get a special issue. Now your mind is
17 not made up at this time, is it?
18 A. No.
19 Q. Okay. There are two appropriate penalties by the time
20 you go into punishment, right?
21 A. Yes.
22 Q. Life without parole or the death penalty. Is that a
23 fair statement?
24 A. It is.
25 Q. Okay. And you've told me neither are minor.
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1 A. That's true.
2 Q. Okay. Special Issue No. 1. You'd get a Special
3 Issue. You may get one or more, depending on how you answer.
4 Do you find from the evidence beyond a reasonable
5 doubt that there is a probability that the Defendant would
6 commit criminal acts of violence that would constitute a
7 continuing threat to society? Okay?
8 A. Okay.
9 Q. So the State has to prove to you from the evidence --
10 all of it, guilt/innocence and all the punishment evidence --
11 beyond a reasonable doubt that there is a probability that the
12 Defendant would commit criminal acts of violence that would
13 constitute a continuing threat to society. My question for
14 you, first of all, is will you consider all the evidence?
15 A. I will.
16 Q. Okay. Will you hold me to my burden to prove to you
17 beyond a reasonable doubt that there is a probability the
18 Defendant would commit criminal acts of violence that would
19 constitute a continuing threat to society?
20 A. Yes.
21 Q. Okay. If I told you that the law says that
22 probability is more than a mere possibility, would you agree
23 with that?
24 A. Yes.
25 Q. Would you consider probability to be something like
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1 more likely than not?
2 A. Yes.
3 Q. Okay. Now so we're predicting future danger.
4 A. Right.
5 Q. Okay? It says that the Defendant would commit
6 criminal acts of violence. Now that is plural. Would that
7 mean more than one to you?
8 A. Yes.
9 Q. Now let's go to the predicting -- well, let me go a
10 little further. Okay? Society.
11 Now there is only two penalties for Capital
12 Murder, both of them very stiff. Life without parole and the
13 death penalty.
14 A. Right.
15 Q. Now if it's life without parole the place where the
16 Defendant is going in any Capital Murder conviction case is
17 prison, right?
18 A. Yes.
19 Q. So society is not limited to but includes prison. It
20 has to, right?
21 A. Yes.
22 Q. Kind of an interesting question. So can you consider
23 prison to be society?
24 A. Yes.
25 Q. All right. Would you agree with me that we have
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1 various types of societies? Cities could be a society?
2 A. Yes.
3 Q. School districts?
4 A. Yes.
5 Q. Okay. Courthouses?
6 A. Yes.
7 Q. Workplace environments?
8 A. Yes.
9 Q. A jail setting can be?
10 A. Yes.
11 Q. Okay. Do you think it is important that inmates be
12 safe from other inmates?
13 A. Yes.
14 Q. Okay. And prison personnel, that they be safe from
15 other inmates?
16 A. Yes.
17 Q. Okay. Ministry? Medical?
18 A. Yes.
19 Q. And that visitors be safe from other inmates?
20 A. Yes.
21 Q. Okay. So society can include prison for you?
22 A. Yes.
23 Q. Let's go a little further. Criminal acts of violence.
24 Okay. Criminal acts of violence can be violence against
25 property and violence against people. Okay? Arson could be
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1 violence against property. Criminal mischief, throwing
2 objects, threats. Can you consider criminal acts of violence
3 to be violence against people and violence against property?
4 A. Yes.
5 Q. Okay. And what do you consider a continuing threat to
6 society? What would continuing be? What does that mean?
7 A. Someone who could, under the right circumstances for
8 that person, be able to commit another crime in the future.
9 Q. Ongoing threat?
10 A. Yes.
11 Q. Okay. Now that's the future danger issue. Predicting
12 future danger, Special Issue No. 1. Remember what I just read
13 to you? Do you find from the evidence beyond a reasonable
14 doubt there is a probability the Defendant would commit
15 criminal acts of violence that would constitute a continuing
16 threat to society?
17 Some people say, oh, I could never predict future
18 danger. Can you answer Special Issue No. 1 based on the
19 evidence?
20 A. Yes.
21 Q. Let's go a little further. Special Issue No. 1
22 focuses upon the character for violence of the particular
23 individual, not merely the quantity or quality of the
24 institutional restraint put on that person. This Special Issue
25 focuses upon the internal restraint of the individual, not
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1 merely the external restraints of incarceration. Can they
2 behave themselves? Am I making sense?
3 A. Yes.
4 Q. Kind of a strange question, but would they constitute
5 a continuing threat to society?
6 A. Right.
7 Q. Okay? All right. And can you answer that Special
8 Issue based on the evidence?
9 A. Yes.
10 Q. Now I told you on Special Issue No. 1 -- I'm going
11 to -- I'm going to go through burden of proof on future
12 dangerousness real fast, and then I'm going to go back.
13 Now the State has to prove future dangerousness.
14 Remember, I have to prove to you beyond a reasonable doubt that
15 there is a probability that the Defendant would commit criminal
16 acts of violence that would constitute a continuing threat to
17 society? Society including prison. Okay?
18 A. Yes.
19 Q. Now can you hold me to my burden of beyond a
20 reasonable doubt to prove that to you?
21 A. Yes.
22 Q. Okay. Let's go a little further to the grid. The
23 reason I'm asking this is -- okay. Now if I prove to you
24 beyond a reasonable doubt that there is a probability the
25 Defendant would commit criminal acts of violence that would
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1 constitute a continuing threat to society, can you answer that
2 question yes?
3 A. Yes.
4 Q. Okay. And the reason I'm asking is because that's the
5 road to the death penalty. Okay?
6 A. Right.
7 Q. Okay. Now if I don't prove it to you beyond a
8 reasonable doubt that there's a probability the Defendant will
9 commit criminal acts of violence that will constitute a
10 continuing threat to society, can you answer it no?
11 A. Yes.
12 Q. Even though -- some people say, well, he's a guilty
13 Capital Murderer. He's got to be a future danger.
14 That's not the way the law works.
15 A. Right.
16 Q. So I want to ask you, just because you've
17 automatically found someone guilty of Capital Murder, are you
18 going to find them a future danger? Are you going to
19 automatically answer that question yes, or are you going to
20 look at all the evidence?
21 A. I'll look at all the evidence.
22 Q. Okay. So he's a guilty Capital Murderer. You get to
23 Special Issue No. 1. If I prove it to you beyond a reasonable
24 doubt, you can answer that yes?
25 A. Yes.
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1 Q. Okay. Because some Capital Murderers could be Capital
2 Murderers and not be future dangers. Would you agree with
3 that?
4 A. Yes.
5 Q. Okay. So yes must be unanimous from the jury. Do you
6 want to know why? Because it's the road to the death penalty.
7 Okay?
8 No requires ten or more jurors. And if ten or
9 more jurors answer that, the Judge will sentence the Defendant
10 to life without parole. Okay?
11 A. Okay.
12 Q. Because sometimes Capital Murderers are not future
13 dangers, based on the evidence.
14 A. Right.
15 Q. Okay? Am I making sense?
16 A. Yes.
17 Q. Okay. So if there is a no answer, the Judge will
18 sentence the Defendant to life without parole. Okay?
19 A. Okay.
20 Q. If there is a yes answer, that's unanimous and the
21 jury has found him to be a guilty Capital Murderer and a future
22 danger, you now go on to Special Issue No. 2. As I said, this
23 is the road to the death penalty.
24 A. Yes.
25 Q. Now I want to go back to deliberating for just a
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1 minute. Remember, in deliberating on this evidence, all the
2 issues, you can't have your mind made up. Even if you answer
3 Special Issue No. 1 yes, your mind still has to be open to both
4 possible penalties.
5 A. Right.
6 Q. Life without parole and the death penalty.
7 A. Right.
8 Q. Will it be open?
9 A. Yes.
10 Q. Now if I say to you, what is your feeling on the
11 appropriate punishment, the truth of the matter is is you
12 haven't heard all the evidence yet.
13 A. Right.
14 Q. Am I making sense?
15 A. Yes.
16 Q. There is going to be a lot of emotion and there is
17 never going to be a good Capital Murder, Ms. Cooper.
18 A. Right.
19 Q. So in deliberating on the issues -- you notice how it
20 doesn't just say one. It says both issues, right?
21 A. Right.
22 Q. If you've gotten that far, you shall consider all
23 evidence admitted at the guilt/innocence stage and punishment
24 stage, including evidence of the Defendant's character and
25 background, or the circumstances of the offense that militate
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1 for or mitigates against the imposition of the death penalty.
2 Will you do that?
3 A. Yes.
4 Q. Okay. Will you do that and keep an open mind past
5 Special Issue No. 1 if you found him to be a future danger?
6 A. Yes.
7 Q. Okay. Let's go to Special Issue No. 2.
8 Now I told you that I had the burden of proof on
9 Special Issue No. 1. Special Issue No. 2 -- now that's not the
10 end of it because, otherwise, the sentence would be automatic.
11 The law provides, as it should, for a mechanism to spare
12 someone's life.
13 A. Right.
14 Q. Do you think that's important?
15 A. Yes.
16 Q. Okay. Even though they have done a horrible, awful
17 thing and they may be a future danger, sometimes it's just
18 right to spare someone's life, isn't it?
19 A. Yes.
20 Q. Okay. So here's how that's determined. Special Issue
21 No. 2. Nobody has a burden on that, and you can get evidence
22 from guilt/innocence or punishment that apply to this.
23 Whether taking into consideration all of the
24 evidence, including the circumstances of the offense, the
25 Defendant's character and background, and the personal moral
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1 culpability of the Defendant, there is a sufficient mitigating
2 circumstance or circumstances to warrant that a sentence of
3 life imprisonment without parole rather than a death sentence
4 be imposed. Okay?
5 A. Yes.
6 Q. All right. Now the defense doesn't have a burden, and
7 neither do I. You wouldn't hold the defense to any burden,
8 would you?
9 A. No.
10 Q. Okay. And all of the evidence -- consideration of
11 evidence includes the circumstances of the offense because they
12 can be mitigating.
13 Let's talk about what mitigation is defined as in
14 Texas. Evidence that a juror might regard as reducing the
15 Defendant's moral blameworthiness. I'm going to explain it in
16 a minute.
17 MS. CONN: Objection, Your Honor. We would
18 object to that slide in violation of Eddings, 445 U.S. 104, and
19 the Eighth Amendment. This slide misstates the law. It
20 misrepresents the law -- misrepresents the caselaw, the
21 Constitution, and we would object and ask that the slide be
22 stricken. Also Lockett versus Ohio.
23 THE COURT: Overruled.
24 Q. (BY MS. YENNE) Okay. Mitigation. In order to sit on
25 a Capital Murder jury you have to be able to consider and give
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1 effect to mitigation. That doesn't mean you have to find it.
2 Okay?
3 A. Right.
4 Q. And even if you found mitigation -- I'll explain in a
5 minute -- it doesn't have to be sufficient. Okay?
6 A. Okay.
7 Q. To warrant life without parole versus the death
8 penalty.
9 Evidence that a juror might -- it doesn't say
10 shall, right? Might regard as reducing the Defendant's moral
11 blameworthiness. Lessening his blame, but not his guilt.
12 Making sense?
13 A. Yes.
14 Q. Took me about three months to figure out how to
15 explain that.
16 So let me go a little further. Ms. Cooper, let
17 me throw something out to you. How would you ever lessen
18 anybody's blame?
19 Have you ever seen kids who -- you see them with
20 their parents and their parents don't care about them. They
21 don't have a chance in the world. Drug addict, horribly
22 treated, horrible abuse, or they just don't really care
23 one bit. Never loved the kid a day in his life. Have you ever
24 looked at a kid and you just wish that somebody would take them
25 away, a grandparent or somebody, because they don't have a
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1 chance in life?
2 A. Yes.
3 Q. So it's almost like the road is paved.
4 A. Yes.
5 Q. Okay. So that might lessen somebody's blame, but not
6 their guilt.
7 A. True.
8 Q. Lessen it enough, be sufficient enough, to give them
9 life without parole. Am I making sense?
10 A. Yes.
11 Q. Okay. Now let's go back to the first Special Issue
12 No. 2 for just a minute, then we're going to talk about
13 mitigation.
14 All right. You take into consideration all the
15 evidence, the circumstances of the offense, the Defendant's
16 character and background, personal moral culpability, there is
17 a sufficient mitigating circumstance or circumstances to
18 warrant that a sentence of life imprisonment without parole
19 rather than a death sentence be imposed. It has to be
20 sufficient. Okay?
21 A. Uh-huh.
22 Q. But there will always be mitigation. Will you agree
23 with me that human beings, somebody has always done something
24 nice for somebody in their life?
25 A. Sure.
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1 Q. Somebody has always been to the college of hard knocks
2 in their life?
3 A. Right.
4 Q. Parent leaves. We all have terrible things happen to
5 us. And we all do good things, right?
6 A. Right.
7 Q. So there may be mitigation, but you would have to
8 determine it to be sufficient. Okay? So let's go a little
9 further.
10 Okay. You have to consider and give effect to
11 mitigation. Now nobody can define what "give effect to" is.
12 The law doesn't define it. But you have to be able to consider
13 and give effect to it. You don't have to find it. Okay?
14 Some of the things that could lessen the blame,
15 mitigation, for one juror might not for another. Okay?
16 Youth -- some people could consider youth mitigating, lessening
17 the blame. Some might not. Some people might consider old age
18 lessening the blame. Some might not. Some might consider
19 child abuse or physical injury or sexual injuries during
20 childhood lessening the blame. Some might not. Good work
21 history could be. Some might not. Drug abuse, drug addiction
22 might consider it lessening the blame. Never the guilt.
23 Lessening the blame.
24 A. Right.
25 Q. Is it sufficient enough to warrant a sentence of life
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1 without parole versus the death penalty?
2 Acts of kindness for others, alcohol abuse, low
3 IQ, low intellectual functioning, family breakup, single parent
4 home, intellectual issues, poverty, exposure to chemicals,
5 exposure to poisons, exposure to toxins, exposure to toxic mold
6 or toxic material, mental retardation, desperation on an event,
7 or even the causation part, that they are not wholly
8 responsible in the circumstances.
9 A. Right.
10 Q. Can you consider all of the evidence, consider and
11 give effect to any mitigation that comes? I'm not asking you
12 could you find it to be. Could you consider all the evidence
13 and give effect to mitigation --
14 A. Yes.
15 Q. -- before answering Special Issue No. 2?
16 A. Yes.
17 Q. Nobody can tell you what weight you'd give it, but
18 will you keep an open mind and consider and give effect to
19 whatever comes in evidence?
20 A. Yes.
21 Q. Okay. Not rule anything out, consider and give it
22 effect?
23 A. Yes.
24 Q. All right. Let's go back to Special Issue No. 2, and
25 then I'm going to the grid. So when taking into consideration
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1 all the evidence -- and we talked about what could be
2 mitigation. What one person thinks might, another person might
3 not -- including the circumstances of the offense, the
4 Defendant's character and background and the personal moral
5 culpability of the Defendant, there is a sufficient mitigating
6 circumstance or circumstances to warrant that a sentence of
7 life imprisonment without parole rather than a death sentence
8 be imposed. Can you answer that question based on the
9 evidence?
10 A. Yes.
11 Q. If there is a sufficient mitigating circumstance, can
12 you answer it yes?
13 A. Yes.
14 Q. If there is not a sufficient mitigating
15 circumstance -- and I said sufficient because there will always
16 be mitigation -- can you answer it no if there is not?
17 A. Yes.
18 Q. Let's go a little further. Let me tell you why.
19 MS. YENNE: Go back to the grid, if we could.
20 Thank you.
21 Q. Because you've already found him to be a future
22 danger. I said it's the road to the death penalty. Requires
23 all the jury to answer yes to future danger.
24 Okay. Mitigation issue. Is there sufficient
25 mitigation? No must be unanimous because if the jury
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1 unanimously found him to be a future danger and unanimously
2 answered no, no sufficient mitigation, then the Defendant
3 receives the death penalty.
4 A. Right.
5 Q. Am I making sense?
6 A. Yes.
7 Q. Okay. Can you answer these questions honestly without
8 making your mind up?
9 A. Yes.
10 Q. Okay. Now a yes requires ten or more jurors and the
11 Judge will then sentence the Defendant to life without parole.
12 Okay?
13 A. Okay.
14 Q. Have I made it sort of clear?
15 A. Yes.
16 Q. Okay. A yes for a future danger and a no to
17 sufficient mitigation, the Defendant receives the death
18 penalty.
19 A. Correct.
20 Q. Okay? Can you honestly answer those questions based
21 on the evidence?
22 A. Yes.
23 Q. Okay. Do you take this lightly?
24 A. No.
25 Q. Okay. Can you honestly answer after you've found them
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1 guilty of Capital Murder you will keep an open mind?
2 A. Yes.
3 Q. As ugly as you feel about it?
4 A. Yes.
5 Q. Will you keep an open mind and decide -- and if I
6 don't prove to you that he is a future danger beyond a
7 reasonable doubt, will you answer it no if I haven't proven it
8 to you?
9 A. Yes.
10 Q. Will you answer it yes if I have proven it to you?
11 A. Yes.
12 Q. Once you've found somebody to be a future danger and a
13 guilty Capital Murderer, guilty Capital Murderer first and a
14 future danger, will you keep an open mind to mitigation?
15 A. Yes.
16 Q. Okay. Because now it's getting very, very serious,
17 isn't it?
18 A. Right.
19 Q. It's serious as you sit there, isn't it?
20 A. Yes.
21 Q. Okay. And if you found someone guilty and a future
22 danger, can you honestly find sufficient mitigation if it's
23 there?
24 A. Yes.
25 Q. To spare his life?
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1 A. Yes.
2 Q. Okay. Let's go a little further. So when you get in
3 the punishment phase, is your honest feeling that there are two
4 appropriate penalties, life without parole or the death
5 penalty?
6 A. Yes.
7 Q. When you get past future danger, there still could be
8 two appropriate penalties, life without parole or the death
9 penalty, couldn't there?
10 A. Yes.
11 Q. Okay. And you will answer based on the evidence?
12 A. Yes.
13 Q. Okay. Let me go to murder. Murder can be a man
14 intentionally killing a man, a man intentionally killing a
15 woman, a woman intentionally killing a woman, a woman
16 intentionally killing a man. Do you make any distinction, or
17 is murder murder?
18 A. It's murder.
19 Q. Okay. Let's go a little further. Murder can be a
20 white person intentionally killing a white person, a white
21 person intentionally killing a black person, a black person
22 intentionally killing a black person, a black person
23 intentionally killing a white person, a Hispanic person
24 intentionally killing a Hispanic person, a Hispanic person
25 intentionally killing a white person. Do you make any
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1 distinction based on race, or is murder murder?
2 A. Murder is murder.
3 Q. Okay. Can you judge this case based on the evidence
4 and the law provided to you by the Court?
5 A. Yes.
6 Q. If you were governor for a day and you had the ability
7 to end the death penalty in Texas, would you?
8 A. No.
9 Q. Okay. Do you believe that there are some rare
10 circumstances where it's warranted?
11 A. Yes.
12 Q. Okay. Now in answering the questionnaire, you're the
13 wife of a police officer.
14 A. I am.
15 Q. Okay. Can you separate that and not have any feelings
16 that are based on the fact that your husband is a police
17 officer? Can you judge it based on the evidence?
18 A. Yes.
19 Q. Okay. Let me go to page 18, for a minute, of your
20 questionnaire.
21 You know we gave you these questionnaires, and
22 you get it cold.
23 A. Right.
24 Q. It's really not fair. You don't know any of the
25 circumstances.
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1 A. Right.
2 Q. But we're not allowed to tell you. So then I ask you
3 have you answered these questions that I've asked you so far,
4 Ms. Cooper, based on your honest feelings?
5 A. Yes.
6 Q. Okay. I'm not putting words in your mouth?
7 A. No.
8 Q. Okay. Page 18, Number 100. When you talk about your
9 feelings on the death penalty you said, It makes more sense
10 than sending someone to prison for life without parole so they
11 can spend 30 years in prison only to die there.
12 A. And I've had a lot of time to consider these
13 questions; but in respect to that particular question, if you
14 know beyond a reasonable doubt that someone is guilty and there
15 aren't mitigating circumstances sufficient, then I believe the
16 death penalty is warranted. But if there is doubt and you're
17 unsure, I think it would be unfair to send someone to the death
18 penalty.
19 Q. Okay. So let's go a little further. Let's say there
20 is no doubt. He's a guilty Capital Murderer. No extenuating
21 circumstances. Okay?
22 A. Right.
23 Q. Because when you found him guilty, there is no
24 extenuating circumstances. Innocent victim, didn't provoke
25 anything. Can you still keep an open mind?
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1 A. Yes.
2 Q. Okay. Let me go a little further. Because you
3 said -- when you said there is no doubt. Because there will be
4 no doubt when you find someone guilty of Capital Murder. I've
5 proven it to you beyond a reasonable doubt there.
6 A. Right.
7 MS. CONN: Objection. The test is beyond a
8 reasonable doubt, not beyond no doubt. I heard Ms. Yenne say
9 something about there will be no doubt.
10 MS. YENNE: I'll rephrase it.
11 Q. (BY MS. YENNE) All right. So somebody is guilty of
12 Capital Murder. My question for you is if they are guilty of
13 Capital Murder -- no justification, no excuse, innocent victim,
14 no provocation, no doubt in your mind they did it -- can you
15 still keep an open mind when you go into punishment as to life
16 without parole or the death penalty?
17 A. Yes.
18 Q. Okay. That's what I wanted to clarify. And so it's
19 not going to feel good.
20 A. Right.
21 Q. It's not a feel-good crime. You're going to have a
22 completely and totally innocent victim. Unprovoked. No
23 insanity. No self-defense because they would have been
24 acquitted by that.
25 A. Right.
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1 Q. And like you said, at the time you answered the
2 question -- and a lot of people said, well, that's not exactly
3 what I meant.
4 A. Right.
5 Q. You've handed this to us cold.
6 Now that I've explained the process to you, is it
7 a fair process?
8 A. Yes.
9 Q. Okay. Is it one that you will follow?
10 A. Yes.
11 Q. But let me go a little further on your answers then.
12 You're going to feel pretty bad that somebody committed a
13 Capital Murder, aren't you?
14 A. Absolutely.
15 Q. Okay.
16 THE COURT: You have 10 minutes.
17 Q. And let's say it's no doubt in your mind that they
18 committed a Capital Murder. Are there still two appropriate
19 penalties? Life without parole, depending if there is
20 mitigation, sufficient mitigation?
21 A. Yes.
22 Q. And the death penalty?
23 A. Yes.
24 Q. Depending on the facts?
25 A. Yes.
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1 Q. So the fact that you've convicted someone of Capital
2 Murder, you haven't made up your mind as if there is only one
3 appropriate penalty because the legislature says there is two.
4 A. Right.
5 Q. Okay. Is that what you believe?
6 A. Yes.
7 Q. Okay. Given the fact that we're talking about
8 executing that man over there --
9 A. Yes.
10 Q. -- graveyard death, do you take this serious?
11 A. Absolutely.
12 MS. CONN: I'm sorry. I didn't understand the
13 word, Your Honor.
14 MS. YENNE: Graveyard death? We're talking about
15 executing him.
16 Q. (BY MS. YENNE) Do you take this seriously?
17 A. Yes, I do.
18 Q. All right. Let's go a little further. Do you believe
19 that sometimes the death penalty is a deterrent?
20 A. Yes.
21 Q. Okay. So let's say you convicted someone of Capital
22 Murder. You've told me that there are two appropriate
23 penalties, even though it's the most horrendous crime in the
24 world and there's no excuse for it. Is that what you believe?
25 A. Yes.
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1 Q. Okay. Do you think that this is a fair punishment
2 scheme where someone's life is in their hands?
3 A. Yes, I do.
4 Q. Okay. So let's say then you've found him to be a
5 future danger, that I have proven that to you beyond a
6 reasonable doubt that there is a probability that he would
7 commit criminal acts of violence that constitute a continuing
8 threat to society. There are still two appropriate penalties,
9 are there not?
10 A. Right.
11 Q. Life without parole and the death penalty.
12 A. Yes.
13 Q. Okay. So once you've found him to be a future danger
14 and a guilty Capital Murderer -- guilty Capital Murderer first,
15 future danger -- will you still keep an open mind and listen to
16 all the evidence to see if there is sufficient mitigation?
17 A. Yes.
18 Q. Is that really the way you feel?
19 A. Yes. It's the only fair way to be.
20 Q. Okay. And could you do that fairly?
21 A. Yes.
22 Q. And I guess what I'm trying to find out is there is no
23 good kind of murder, no good kind of capital, is there?
24 A. No.
25 Q. Based on the crime, would you just automatically make
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1 up your mind one way or the other and find a way to justify it?
2 A. No.
3 Q. Okay. Is this process important?
4 A. Yes.
5 Q. Okay. So you're telling me that after somebody would
6 be convicted of Capital Murder, that as bad as you felt, there
7 are two appropriate penalties, life without parole or the death
8 penalty, depending on the facts?
9 A. Yes.
10 Q. And after you convicted someone of Capital Murder and
11 found them to be a future danger -- I had to prove that to you,
12 right?
13 A. Right.
14 Q. That there is still two appropriate penalties, life
15 without parole and the death penalty?
16 A. Yes.
17 Q. Because there could be sufficient mitigation?
18 A. Yes.
19 Q. Okay. Would you keep an open mind to that and
20 consider and give it effect?
21 A. Yes.
22 Q. Mitigation?
23 A. Yes.
24 Q. And could you be fair if you sat on this jury?
25 A. Yes.
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1 Q. Would you take it seriously and concentrate on this
2 case?
3 A. I would.
4 Q. Okay.
5 MS. YENNE: Pass the juror.
6 THE COURT: Ms. Conn?
7 VOIR DIRE CROSS-EXAMINATION
8 BY MS. CONN:
9 Q. Ms. Cooper, my name is Mary Conn. This is Kerri
10 Mallon. This is my client, James Harris. We have a couple
11 other lawyers in the room.
12 A. Yes.
13 Q. I heard Ms. Yenne say at least 30 times, can you be
14 fair?
15 A. Yes.
16 Q. And we talked about being fair is real important.
17 A. Yes.
18 Q. Or at least Ms. Yenne wants you to keep saying yes to
19 that answer -- to that question. Is that right?
20 MS. YENNE: Objection. Sidebar comment, Judge.
21 THE COURT: Sustained.
22 Q. Ms. Yenne asked you repeatedly, could you be fair?
23 A. That's correct.
24 Q. And she also used the word "serious." In other words,
25 you take this real seriously?
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1 A. I do.
2 Q. Okay. You also heard can you keep an open mind?
3 A. Yes.
4 Q. And you heard that about 30 times or more?
5 A. Correct.
6 Q. What does that mean to you, an open mind?
7 A. To be able to consider all the evidence presented from
8 both sides or -- well, she has the burden of proof; but to
9 listen to all the information presented by both sides and to
10 consider everything before making the decision.
11 Q. And do you have other circumstances in your life other
12 than a trial, for example, where you want to keep an open mind?
13 A. Yes.
14 Q. Like do you have a daughter?
15 A. I have a daughter, yes.
16 Q. So when she tells you something, do you want -- and it
17 doesn't sound right, do you want to keep an open mind?
18 A. Sure.
19 Q. But when she does that -- and I have college kids
20 myself, so I am kind of relating to this as a mom. But when
21 the kid says something and it just doesn't sound right, you
22 want to keep an open mind, right?
23 A. Right.
24 Q. But you also kind of have an idea of what really
25 happened and what the real truth is. Is that fair?
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1 A. Yes.
2 Q. Our purpose in being here this afternoon -- Ms. Yenne
3 has the burden of proof -- she gave you a lot of law. For the
4 most part we believe that was correct statements of the law.
5 My interest here is to try to find out how you feel about
6 things. So I'm less interested in getting those short yes
7 answers from you than I am in just trying to kind of elicit how
8 you really feel about things. Okay?
9 A. Okay.
10 Q. So one of the things we've talked about, or she talked
11 about a little bit, is your husband is a police officer.
12 A. That's true.
13 Q. So a question that I have -- and frankly, you know, my
14 client's life is at stake here.
15 A. Right.
16 Q. We're talking about a Capital Murder, so I think you
17 can reasonably presume that somebody is deceased here.
18 A. Sure.
19 Q. But my concern is that my client get a fair trial and
20 that the State get a fair trial.
21 A. Right.
22 Q. And you understand that the State has the burden of
23 proof, and you probably heard some of that over the time that
24 you've been married.
25 A. Yes.
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1 Q. You've heard a little bit about cases, the burden of
2 proof, and what people will do to get somebody acquitted and
3 what somebody else will do to get somebody convicted. You've
4 heard that kind of stuff?
5 A. Somewhat.
6 Q. What is your attitude on a sliding scale, I guess is
7 one way to ask it, of the credibility of the police officers?
8 Like do you think that they are more likely than not to not
9 maybe tell the whole truth or maybe fabricate a little bit to
10 get the result that they believe is justified in testifying in
11 court?
12 A. Okay. Well, from things that I have seen on
13 television I know that there are plenty of police officers,
14 good and bad, and some choose to take the wrong road and not
15 follow the law and some do choose to follow every aspect of the
16 law because they want justice served.
17 My husband is very much by the book kind of a
18 person. I have ridden with him on shifts before. He's a very
19 much by the book kind of a person, and he doesn't take
20 unnecessary risks or put people who he has arrested in position
21 of being abused by law enforcement or anything like that. So
22 there are good and bad in any profession, and I recognize that.
23 Q. And so you've seen that from your own life and your
24 personal experience as well as what you've seen on TV?
25 A. Yes.
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1 Q. And, you know, you answered a question about the
2 credibility of the witnesses; but do you believe that a police
3 officer may have a little bit of an edge with you? Do you
4 believe that maybe you can tell whether or not they are telling
5 the truth as opposed to some other witness?
6 A. I would hope so.
7 Q. And you believe that you can tell personally whether
8 or not they are telling the truth or not more than maybe you
9 could with some other kind of witness?
10 A. I don't know if it would be more, but I would hope
11 that I would be able to tell or discern whether they were
12 telling the truth or not.
13 Q. Several questions -- several answers in your
14 questionnaire were of interest to me. One is I want to know
15 how you know Ted Poe.
16 A. Well, I don't know him personally; but I do more
17 remember some of the judgments and things that he's passed and
18 his conservative viewpoints.
19 Q. Was Toothbrush Ted, right?
20 A. I don't know that I've ever heard of him referred to
21 that way before.
22 Q. He used to do that. He used to tell people when they
23 came back to his court they better bring a toothbrush.
24 A. Oh.
25 Q. And there is a Question No. 28. You said -- and I'm
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1 jumping here a little bit. That's on page 5. It says: Is
2 there any reason, be it your health, occupation, et cetera,
3 that you may feel would cause you to be unable to serve? And
4 you circled yes.
5 And then back on page 29 you said you didn't want
6 to be a juror and you said -- list anything you believe the
7 Court and the lawyers should know about yourself. That's
8 Number 161.
9 A. What was the second one?
10 Q. I'm sorry. Page 29, and it's Number 161. And please
11 stop me if I move too -- talk too fast because I tend to do
12 that.
13 A. Okay.
14 Q. You said that being on a jury for several weeks seems
15 really overwhelming. You said you're going -- I'm going to
16 school, working full-time, coordinating and managing a magnet
17 school with over 450 students, and taking care of my own
18 family. Being on a jury for several weeks seems really
19 overwhelming.
20 Has anything about that statement changed?
21 A. No.
22 Q. So you really don't want to be on this jury?
23 A. As much as I would like to do my duty, it is very
24 overwhelming to me to consider.
25 Q. And is it fair to say that you're going to be thinking
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1 about your other obligations and maybe even working -- if you
2 have a break like a lunch break, you're going to be checking
3 with family, checking with your work, checking with the school.
4 Is that fair?
5 A. Most likely, yes.
6 Q. Are you going to be a little distracted during the
7 trial, perhaps?
8 A. I don't know that I would be distracted during the
9 trial itself, but I am the only person at my school. I
10 coordinate a magnet school. I'm the only person who does the
11 job I do. So I would be probably somewhat preoccupied at least
12 on breaks or recesses to accomplish what I need to.
13 Q. And I appreciate that. Because it is quite a burden.
14 I mean, it's a big commitment, time commitment, and a focus
15 commitment.
16 And as Mr. Harris sits here, we've already
17 established that's he's innocent as he sits here. So he's not
18 guilty.
19 A. That's correct.
20 Q. So we want to be sure, with that concept of being
21 fair, that he gets a fair trial.
22 A. Absolutely.
23 Q. Is that right?
24 A. Yes.
25 Q. And you would want him to have your full attention?
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1 A. Yes.
2 Q. And you're basically saying that you don't -- not sure
3 you can apply that?
4 A. That's true.
5 Q. Would your other obligations in life, which I
6 appreciate and respect, honestly, would that substantially
7 impair your duties as a juror in the case?
8 A. No. I mean, because I'm assuming what you're asking
9 is would that make me more likely to find him guilty; and no,
10 that would not be the case.
11 Q. And thank you. That was a real reasonable inference
12 from what I said. No, I'm asking you really just would you
13 find that these -- that your other duties would substantially
14 impair? In other words, would you be distracted? Would you
15 become, perhaps, quick to make a decision? Less thoughtful or
16 whatever that means to you, that you will be impaired in some
17 way in serving as a juror?
18 A. No. If I was asked to serve, I would do what was
19 asked of me and consider everything.
20 Q. So you'd set aside your occupation and your family and
21 other things that you mentioned here in the questionnaire?
22 A. Yes.
23 Q. All right. You said -- a little bit later you said
24 something about -- Ms. Yenne asked you about page 18,
25 Question 100. You said now that you've had some time to think
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1 about the questions. Because I know you came to the general
2 voir dire and you were perhaps surprised by that questionnaire.
3 Is that fair?
4 A. Yes, I was surprised by it; but I was also -- I've
5 never sat on a criminal jury before. And, I mean, I know why
6 the questions were asked and I understand that; but maybe my
7 preliminary feelings about, you know, just the death penalty or
8 whatever, I've, you know, had more of an opportunity to
9 consider my thoughts on the option of life without parole
10 versus the death penalty.
11 Q. And have you had an opportunity to talk with your
12 husband about that this is a Capital Murder jury?
13 A. We talked about that it was a Capital Murder jury, but
14 I have not discussed anything detailed with anyone else.
15 Q. Well, you didn't really know anything about it, right?
16 A. Right. But not even -- not even Mr. Harris. I
17 haven't even mentioned his name.
18 Q. Okay. But you and your husband did have a chance to
19 talk about -- did you talk about the questionnaire at all?
20 A. No, not really.
21 Q. But you did talk about that it was a Capital Murder
22 case?
23 A. Yes.
24 Q. And can you tell me something more about what y'all
25 discussed?
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1 A. Well, in the questionnaire I mentioned that he would
2 probably be more -- his idea would be more harsh, but I didn't
3 even ask him because it -- because I didn't want to know.
4 Q. And y'all --
5 A. I just didn't want to know.
6 Q. And y'all had not previously talked about the death
7 penalty or Capital Murder or anything?
8 A. No.
9 MS. CONN: Judge, may I approach? Well, Judge,
10 the bottom of page 6 is cut off in my version; and I'd like
11 just --
12 THE COURT: You may look at the original.
13 MS. CONN: Thank you.
14 Q. (BY MS. CONN) Thank you.
15 A. Uh-huh.
16 Q. I just didn't want to miss anything that you said was
17 important there, and I read that that says that your husband --
18 or that your cousin is currently employed by the -- as a police
19 officer?
20 A. That's true.
21 Q. And that was just cut off on my Xeroxed copy.
22 One jury that you served on was a traffic -- you
23 were in a traffic case and then you were in a civil case?
24 A. That's correct.
25 Q. What was the civil case about?
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1 A. It was like a personal injury kind of a thing between
2 HEB and a lady who was mugged in their parking lot.
3 Q. Were criminal charges filed in that case? Do you
4 know?
5 A. I don't think so. I don't know that they ever found
6 the person who mugged her.
7 Q. And they'd have to be -- they certainly would have to
8 be found to be charged, wouldn't they?
9 A. Yes.
10 Q. You said that -- sorry. You said that -- now, again,
11 back to Question 100 and that little series there, you said
12 now, you know, you've considered more carefully the
13 questionnaire. I understood you to say -- and correct me if
14 I'm wrong -- that you think deterrence is an important factor
15 in deciding how someone is sentenced. In other words, you
16 believe the death penalty is important as a deterrent?
17 A. Yes.
18 Q. You said specifically, One would hope it would be a
19 deterrent to those who would commit crimes that would result in
20 the death penalty sentence.
21 A. That's true.
22 Q. And that's your belief?
23 A. Can you tell me what question that was?
24 Q. That's Number 101.
25 A. Okay. Yes. I mean, I would hope that if someone were
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1 going to commit a crime that if they knew that the death
2 penalty was an option of punishment, that that might deter them
3 from committing the crime.
4 Q. Sure. And a lot of people feel that way. And that
5 would be in considering what punishment is appropriate, you
6 would consider that factor. Is that right?
7 A. Yes.
8 Q. And then Question No. 100 you said, It makes more
9 sense -- talking about the death penalty. It makes more sense
10 than sending someone to prison for life without parole so they
11 can spend 30 years in prison only to die there.
12 A. Well, and to clarify, if you found someone guilty
13 beyond a reasonable doubt, then it seems more humane to give
14 them the death penalty than it does to just give them life
15 without parole, although I would consider both options based on
16 the information presented.
17 Q. Sure. And you said -- actually, to tag on to that a
18 little bit, you said -- and you still believe that? You still
19 think it's better -- that it's more compassionate in some ways
20 to give somebody a death sentence than to give them a life
21 sentence. Is that right?
22 A. Yes.
23 Q. And you think it's an economical --
24 MS. YENNE: I object. I think it was life
25 without parole sentence.
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1 Q. Life without parole.
2 A. Yes.
3 Q. Okay. When I said life, you understood I meant life
4 without parole?
5 A. Yes.
6 Q. And you understand that life without parole means
7 there really is only one sentence here in this kind of case, if
8 you'll bear with me my entire thought. It's either a death
9 sentence by killing or it's a death sentence by dying in
10 prison.
11 A. Yes.
12 Q. But there is no way somebody who is found guilty of
13 Capital Murder is going to walk away from prison.
14 A. True.
15 Q. Do you understand that?
16 A. Yes.
17 Q. Okay. You did say -- in Number 102 the question was:
18 Do you think the death penalty in Texas is used too often or
19 too seldom? Is that still -- and you said you weren't sure.
20 Do you have any -- have you changed your mind about that?
21 A. I think that probably the media feels like in Texas we
22 use the death penalty too often, but I don't really follow it
23 that closely to know if we really do or not.
24 Q. And that's fine. And, again, I'm trying to find out
25 what really -- how you feel about things and what you think and
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1 not so much --
2 A. Sure.
3 Q. -- anything. I'm not trying to elicit, you know,
4 opinions or facts from you or other than how you feel and how
5 you think.
6 A. Sure.
7 Q. You said, I do think convicted murderers, where the
8 evidence is definite, should not be given life without parole
9 sentences. And then you said, See Number 100.
10 So you think that's -- you think when you've got
11 definite evidence -- or excuse me -- definitive evidence, you
12 think that convicted murderers should not be given life without
13 parole?
14 A. Well, again, I mean, it was helpful to see the grid
15 today just to see what the different pieces were. Because I
16 don't know that I was aware of all that when I was filling out
17 the questionnaire. I could still consider both options and
18 listen to all the evidence and information.
19 Q. Yes. And I'm not implying in any way your ability to
20 think and consider and be fair and all that.
21 A. But I do think it's more humane that -- if it's beyond
22 a reasonable doubt and someone has been convicted of Capital
23 Murder, it still seems more humane to me to give the death
24 penalty. But I'm not going to, you know, make that judgment
25 before I've heard everything.
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1 Q. If you do believe that -- let me just ask another
2 question. You said -- what is your best argument for the death
3 penalty? And you said, If there's definitive proof that the
4 Defendant took a life, I feel that he or she should pay with
5 his own life.
6 A. Yes.
7 Q. And that's your belief?
8 A. Yes.
9 Q. And as I understood, you would consider life without
10 possibility of parole and you would consider death; but you
11 believe that's the appropriate remedy?
12 A. Yes.
13 Q. All right. What's your best argument against the
14 death penalty? You said, If evidence is not definitive and
15 there is any chance the individual is innocent, I would argue
16 against it.
17 A. Yes.
18 Q. In other words, you don't want somebody to come back
19 after they are executed and a lawyer or somebody find out that
20 that person was actually innocent?
21 A. That's correct.
22 Q. Okay. So you'd want -- but that's your main reason
23 against the death penalty?
24 A. Right.
25 Q. On Question 105, the same page, Ms. Cooper, you
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1 said -- you checked -- excuse me. The question is: Check the
2 one statement that best summarizes your general views.
3 You checked the fourth one down, which is, I am
4 in favor of capital punishment, except in a few cases where it
5 may not be appropriate.
6 A. Well, and I think that would go back to what we were
7 just discussing, that if there was any doubt or, as was pointed
8 out earlier, sufficient mitigating circumstances, that I might
9 not be focused on giving the death penalty but on life without
10 parole in such a situation.
11 Q. So if there is doubt in the case, if there is doubt as
12 to say whether the person may actually -- may be innocent, then
13 you don't -- then you're not going to give them the death
14 penalty?
15 MS. YENNE: Your Honor, I'm going to object to
16 the form of question as implying that's her only answer. It's
17 a bifurcated answer.
18 THE COURT: Your objection is bifurcated
19 question?
20 MS. YENNE: Yes, sir, suggesting that the
21 response is only one way.
22 THE COURT: All right. Sustain the objection.
23 Just rephrase your question.
24 Q. (BY MS. CONN) Ms. Cooper, I understood you to say
25 that -- well, why don't you -- do you mind saying what you just
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1 said? Because I was just trying to understand what you said.
2 A. If someone is convicted of Capital Murder and it's
3 beyond a reasonable doubt, then I think the death penalty is
4 justified. But if there is, I think, any mitigating --
5 sufficient mitigating circumstances or -- I think you said that
6 there had to be ten or more in the number one special case and
7 in order -- can you go back to the grid?
8 MS. CONN: May I respond?
9 THE COURT: Just go ahead and finish your
10 question.
11 A. Okay. Well, in my mind if there is some doubt, I
12 mean, his life is at stake; and so I don't just want to send
13 someone to the lethal injection if there is any doubts, is what
14 I'm getting at.
15 Q. So if there is any reasonable doubt in the case -- if
16 there is some doubt in your mind as to whether or not he's
17 guilty, you're going to at that point give him life without
18 possibility of parole rather than death. Is that fair?
19 A. Yes.
20 Q. I also notice on the next page on Question 108 it
21 says: Do you believe the death penalty should be used for
22 other crimes? You said -- there your response was yes.
23 And you said -- if yes, which one? You said, It
24 should be considered for all types of murder convictions.
25 And that's your personal belief. Is that right?
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1 A. Yes.
2 Q. So I think that sort of ties back to what you said
3 earlier in your questionnaire that -- you said, basically, if
4 you kill somebody, you get killed. And that is a very valid,
5 very normal -- lots of people feel exactly that way. You know,
6 it's sort of -- it goes back to the Bible, the eye for an eye
7 thing. You kill somebody, you die.
8 MS. YENNE: Your Honor, I'm going to object to
9 the form of question as a misstatement of what the juror said
10 before.
11 THE COURT: Sustained.
12 Q. (BY MS. CONN) So you have said -- in your
13 questionnaire you've made a couple of references that, you
14 know, people -- crime is bad because people are not following
15 God's law, basically.
16 A. Right.
17 Q. And I'm taking you back to your Question No. 103. You
18 said, If there is definite proof the Defendant took a life,
19 then he or she should pay with his or her own life.
20 And that's what you said in your questionnaire?
21 A. That is what I said.
22 Q. And my understanding of that is that based on your
23 beliefs about God and I'm assuming the Bible --
24 A. Right.
25 Q. -- that part of that is -- belief is based on the law,
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1 this biblical law that -- you know, an eye for an eye?
2 A. Right.
3 Q. If you kill somebody, then you pay with your own life?
4 A. Right.
5 Q. And that would be the normal sort of punishment -- or
6 the normal sort of a first response in your belief system?
7 A. It would be my first response, but I'm not an attorney
8 and not completely skilled in the nuances of the law. So I
9 mean, I feel like I could, you know, when the law is presented
10 to me and if I were asked to consider options, I could follow
11 it.
12 Q. Okay. If somebody asked you to violate your own
13 conscience and to do something that's opposed to what you truly
14 believe, how can you do that?
15 A. When I was answering that question, really the kind of
16 things that were running through my mind are, you know, if
17 someone that I loved was killed or someone that I knew was
18 killed; and that always is much more personal than --
19 unfortunately, it's more personal than, you know, just another
20 individual in your hometown or whatever.
21 The Bible says an eye for an eye, but it also --
22 you know, Jesus also said if someone strikes you once, then
23 turn the other cheek, too. So I think I could consider all the
24 options in front of me and really weigh the information before
25 making a judgment on someone else's punishment.
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1 Q. So you think you can do that?
2 A. Yes.
3 Q. Okay. I wanted to clear something up that -- again,
4 Ms. Yenne did a reasonably good job of describing the law; but
5 I wanted to be real clear on what she calls the grid. And I'm
6 sorry because our power point is not operating that well today,
7 but there is a -- you know, a juror, to reach a death penalty,
8 it has to reach a unanimous verdict three times.
9 A. Yes.
10 Q. They have to unanimously decide on guilt. If they
11 don't get there, then there is no punishment.
12 A. Correct.
13 Q. They have to unanimously decide beyond a reasonable
14 doubt that there is a future danger. That answer has to be
15 unanimous.
16 A. Yes.
17 Q. And they have to -- there has to be an answer that
18 there is no mitigation and there is no Special Issue No. 2 to
19 reach a death sentence. Do you understand that?
20 A. Yes.
21 Q. So the numbers -- we talk about 10 of this and 12 of
22 that and whatever. I just wanted to make sure you understand
23 that piece of law.
24 A. Yes.
25 Q. All right. You know, there is no definition for the
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1 word consider, and so I wanted to just see what -- you said
2 that you would consider -- when you were talking about -- we
3 were talking about one eyewitness and proof beyond a reasonable
4 doubt and if you believe that witness you said yes, you can do
5 that. And then Ms. Yenne went on to talk about the range of
6 punishment. You said you could consider the full range of
7 punishment. There is no definition of that. Do you understand
8 what that means? Excuse me. My question is what does consider
9 mean to you?
10 A. To weigh both options in light of the information
11 that's been presented.
12 Q. All right. And to weigh both options. Okay. So if
13 you consider -- you know, there is a whole long list of things
14 that might be mitigating factors that Ms. Yenne gave you. And
15 that's, you know, obviously a partial list. The law says
16 anything -- you can consider the fact that someone is black or
17 the fact that someone is wearing a blue shirt. The fact of
18 anything can be mitigating to you or not.
19 A. Right.
20 Q. So that's certainly not an exhaustive list, but you
21 said you could consider those things. In that sense, what does
22 consider mean?
23 A. I'm not exactly sure how to put this into words.
24 Q. I'm sorry?
25 A. Well, seriously evaluate. That's what I would say
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1 consider would mean, to seriously evaluate.
2 Q. And you know the mitigation, that second issue, the
3 second Special Issue that's actually here on the board, you
4 have to consider and give effect. And I wonder what the word
5 "give effect" means to you?
6 A. Can you repeat your question?
7 Q. Yes, ma'am. The issue as stated -- the Special Issue
8 is stated in this way that's on the board that you saw
9 previously, the same exact words. But the law says you have to
10 consider and give effect. In other words, it's not a matter
11 of -- if I say, Ms. Cooper, please consider setting your hair
12 on fire and running around the room, you might consider that.
13 Now you have that thought in your head so you're
14 thinking about it, right?
15 A. Yes.
16 Q. It's sort of like the pink elephant. Don't think
17 about the pink elephant. What do you think about?
18 A. Right.
19 Q. So you're considering it, but you're not going to give
20 it full effect. In other words, you're not going to look for a
21 match to light your hair on fire when I say -- if I were to
22 make some remark like that.
23 A. Right.
24 Q. So you're not giving full effect to it.
25 A. Okay.
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1 MS. YENNE: Object to full effect. Object to the
2 form of the question.
3 THE COURT: Sustained.
4 Q. (BY MS. CONN) You're not going to give effect to
5 that?
6 A. Okay.
7 Q. I want to ask you a hypothetical question. So can you
8 just go with me on a hypothetical?
9 A. Yes.
10 Q. This is not as much as -- it's not this case. It's
11 not disguised -- this case is not being disguised. This is
12 really just a hypothetical question.
13 I'd like you to consider that you sat as a juror
14 on a different Capital Murder case and you know that -- and the
15 Judge instructs you that Capital Murder is an intentional
16 murder where it was the Defendant's conscience desire to kill
17 and the Defendant accomplished that desire along with some
18 other serious crime. Like, for example, one of the things
19 Ms. Yenne mentioned was killing a police officer. You know
20 that could be a Capital Murder.
21 A. Right.
22 Q. So you and the 11 other jurors heard all the evidence
23 and decided beyond a reasonable doubt that the Defendant in
24 that case intentionally or knowingly killed --
25 MS. YENNE: Objection. Not knowingly.
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1 MS. CONN: I'm sorry.
2 Q. Intentionally killed an innocent victim who did not
3 deserve to die. Are you with me?
4 A. Yes.
5 Q. And in that case there was no -- you found that there
6 was no self-defense. There was no defense of another person.
7 There was no defense of property. It was not a mistake. It
8 was not an accident. The Defendant in that case was not forced
9 to commit the murder. Nobody made him do it. And the victim
10 did not provoke the Defendant, nor did the victim deserve to
11 die. You had an innocent victim.
12 A. Okay.
13 Q. So are you following me?
14 A. Yes.
15 Q. All right. Despite whatever evidence you heard
16 concerning those defenses, you and 11 other jurors decided
17 beyond a reasonable doubt that the Defendant acted
18 intentionally and he knew what he was doing. He meant to do
19 it.
20 A. Okay.
21 Q. Just a senseless, cold-blooded killing. And, further,
22 you found that there was -- that no matter what evidence you
23 might have heard or not, you found that the Defendant was not
24 insane, he was not mentally retarded, and it was a murder in
25 which the Defendant was able to form the specific intent or
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1 conscious desire to commit the murder and did so.
2 A. Okay.
3 Q. You also found that he wasn't so drunk that he
4 couldn't act intentionally or he wasn't so high on drugs that
5 he couldn't act intentionally.
6 A. Okay.
7 Q. So no -- there was no -- he has no -- one way to say
8 it is he has no defenses. No defenses and no other
9 circumstances. It was just plain-vanilla, cold-blooded
10 killing.
11 A. Right.
12 Q. Assume that you and the 11 other jurors all agreed
13 beyond a reasonable doubt that all that's true. I'm going to
14 ask you about your feelings. What are your feelings in that
15 hypothetical about the death penalty being the only appropriate
16 remedy for that guilty murderer?
17 MS. YENNE: I'm going to object to the form of
18 the question. It's an improper commitment to an improper
19 hypothetical, injecting a police officer and being the only
20 appropriate. The question is misleading as to the options
21 available. Object.
22 MS. CONN: May we approach, Your Honor?
23 THE COURT: You may.
24 (The following discussion was held at the bench.)
25 THE COURT: We're at a bench conference. The
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1 venire person cannot hear.
2 MS. YENNE: The State is going to object that is
3 an improper hypothetical, improper commitment. It adds a
4 factor -- a specific police officer factor, knowing that this
5 juror's husband is a police officer, and suggests once again
6 what has been attempted to be suggested to every juror, that
7 there is only one appropriate penalty. What are your feelings?
8 It is a unique creative hypothetical; but it suggests, based on
9 emotions in an improper hypothetical, that there is only one
10 appropriate penalty. I would object to this continuous form of
11 this question.
12 THE COURT: Ms. Conn?
13 MS. CONN: Your Honor, it was a proper question
14 under Standefer v. State and Cardenas v. State. And you have
15 the cases, I believe, Your Honor; and if you don't, I'd be
16 happy to provide them again. It was a proper question under
17 the 5th, 6th, 8th, and 14th Amendments. An instruction from
18 the Court to not allow me to ask that question denies effective
19 assistance of counsel to my client, it denies his rights to be
20 heard under the Texas Constitution and, again, violates
21 Standefer and Cardenas.
22 It is the -- I was very careful to say what are
23 your feelings about this issue? This is not wouldn't you
24 agree? I counted no less than 30 or more times Ms. Yenne said
25 wouldn't you agree with this? Wouldn't you agree with that?
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1 So I'm not asking would she agree on this. I'm not committing
2 her at all. I am asking her what her feelings are, and that's
3 the way I asked the question. I was very careful to approach
4 it in that respect.
5 It's Morgan versus Illinois and Standefer and
6 Cardenas versus State. The law is, Your Honor, that a
7 commitment question is proper if one of the possible answers
8 gives rise to a challenge for cause; and automatic death
9 penalty is a possible answer to this question. Then it's
10 proper. It contains no unnecessary facts and tracks the penal
11 code elements and the defenses.
12 Ms. Yenne herself gave a homicide of a police
13 officer as a death penalty as a Capital Murder, and I'm
14 certainly entitled to use the same example she used.
15 MS. YENNE: And we don't believe that "what are
16 your feelings" is an appropriate mechanism to arrive at a
17 challenge for cause. Yet this is what defense counsel is
18 attempting to do by what are your feelings questions; and
19 therefore, it is improper. And the manner in which they are
20 doing it.
21 THE COURT: Okay. I think that I understand
22 under Standefer -- you know, not all open-ended questions
23 are -- I mean, open-ended questions can be commitment
24 questions. And I think it is misleading in the example of the
25 officer, so I'm going to sustain the objection to the way the
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1 question was asked.
2 MS. CONN: Does the Court have a recommendation
3 as to how I can ask the question that would be
4 non-objectionable?
5 THE COURT: I can't. I can't give you
6 suggestions on how to ask them.
7 MS. CONN: I'd like to make a bill.
8 THE COURT: Okay.
9 (Bench discussion concluded.)
10 Q. (BY MS. CONN) Thank you for your patience. I ask you
11 to look further back at Number 157. That would be page 29.
12 A. Okay.
13 Q. You said -- the question is: Do you believe that the
14 death penalty should be a possible punishment for someone who
15 participated in the crime but who did not personally do the
16 actual killing?
17 And you said yes. And you explained, If someone
18 helped plan the crime and/or helped acquire the means for the
19 killing, they should also be held responsible and they should
20 also get the death penalty.
21 Is that your feeling?
22 A. Yes.
23 Q. You said further -- you told Ms. Yenne that if there
24 was doubt in the case, that it would be unfair to send someone
25 to the death penalty. Is that right?
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1 A. Yes.
2 Q. My sense of this is that you feel that there is a --
3 that you have a serious responsibility to follow the process in
4 the case. Is that fair?
5 A. That's true, yes.
6 Q. And after you find someone guilty of Capital Murder,
7 you're going to carefully consider the evidence as required
8 when you consider Special Issue No. 1, which we call the future
9 danger question, right?
10 A. Right.
11 Q. And you're going to carefully consider the evidence in
12 the trial and any additional evidence that's brought in that
13 part. Is that fair?
14 A. That's fair.
15 Q. And it's important to go through this process before
16 you find -- before you give somebody the death penalty.
17 A. Right.
18 Q. Back to my hypothetical, with a little different
19 twist. Again, you and 11 other people have found somebody
20 guilty of Capital Murder beyond a reasonable doubt and there
21 were no self-defense or defense of others. There was no mental
22 illness or mental retardation. There was no defense of
23 property, no mistake, no accident. No one forced the Defendant
24 to commit the murder. The victim didn't provoke the murder or
25 deserve to die. All right?
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1 A. Okay.
2 Q. There is no insanity. We said that. And the
3 Defendant was able to form the specific intent. You found that
4 person guilty beyond a reasonable doubt.
5 A. Yes.
6 Q. Then you found -- you answered this question, which is
7 based -- you know, you found that beyond a reasonable doubt
8 that there was a probability that that defendant, that
9 hypothetical defendant, will commit criminal acts of violence,
10 in other words, plural acts of violence, that will constitute a
11 continuing threat to society.
12 A. Okay.
13 Q. And you found that beyond a reasonable doubt. At that
14 point are you -- in your own belief system, are you -- can you
15 honestly consider somebody who is that awful, that there may be
16 some mitigation?
17 A. Yes.
18 Q. Do you believe, Ms. Cooper, that some segments of the
19 society or some groups of people or some -- I mean, honestly,
20 we can talk now about even some religions that are so sort of
21 against our normal way of life, against law or against doing
22 what we're supposed to do as we go through our lives, that they
23 are prone to be lawless, to be -- you know, to not follow the
24 law, to be criminals, to be murderers or to be -- just
25 criminals of whatever. Do you believe that?
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1 MS. YENNE: Your Honor, I'm going to object to
2 the form of the question. Improper commitment question.
3 THE COURT: Sustained.
4 MS. CONN: May I ask another question, Your
5 Honor?
6 Q. (BY MS. CONN) Do you believe that there are groups of
7 people that are sort of predisposed toward criminal behavior?
8 A. No.
9 Q. Ms. Cooper, I understood earlier that you said it
10 would be actually difficult or hard or something along those
11 lines -- and I don't have that exact wording. I'm not finding
12 it -- for you to give a life sentence to somebody that you had
13 found guilty of Capital Murder?
14 A. Yes. But that was, again, before I considered the
15 different phases and the different situations that have been
16 presented. Because, again, when answering the questionnaire, I
17 was considering it more from my own personal -- a very personal
18 perspective and not -- an outsider is not the right word, but
19 just someone who I don't know.
20 Q. Have you ever known anyone personally who was
21 murdered?
22 A. No.
23 Q. You know, this will be real personal to Mr. Harris.
24 A. Right.
25 Q. And you've got an hour and a half here that you've
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1 spent with us today getting some law and getting some --
2 hearing some arguments and actually being led quite a bit,
3 which is not a comment or a complaint about this type of voir
4 dire that's been done here. We do ask you leading questions
5 like wouldn't you agree this? Wouldn't you agree that?
6 A. Right.
7 Q. So you're grown. I never like anybody to talk about
8 my age, and you're a lot younger than I am. I'll just leave it
9 there. But are you telling me that you've had lifelong beliefs
10 that are probably reflected in your questionnaire and you're
11 able to just set all that aside?
12 A. Yeah. I would think that in the questionnaire lots of
13 questions were asked, even about the types of television
14 programs and things likes that. And I am a fan of crime dramas
15 and I do watch the news, but I also think that people who play
16 the role of murderer in a crime drama or people who are
17 portrayed in the media or in a murder trial are also portrayed
18 in a certain way with a certain slant. And one of the things
19 that gave me pause in this -- because, again, I've never sat on
20 a criminal jury before -- was actually having Mr. Harris in the
21 courtroom. You know, you can't just walk down the street and
22 know if someone has committed a crime or not; and you can't
23 judge a book by its cover. So it couldn't be fair to make
24 judgment on him until I've heard everything in the case and
25 then follow the law as it has been presented.
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1 Q. And it's really important to be fair.
2 A. Yes.
3 Q. And have you ever in your life -- I mean, I have; and
4 I'm guessing that you have, too -- realized later that you were
5 not fair?
6 A. Yes.
7 Q. And is that -- has that caused you -- given you pause,
8 as we say?
9 A. Yes.
10 Q. And do you understand that it's -- that some cases are
11 harder? There are cases that I wouldn't want to sit on,
12 honestly, as a juror, just because of my life experiences and
13 my background. Some cases I would be comfortable sitting on.
14 A. Right.
15 Q. Do you have anything like that?
16 A. The whole idea of holding someone's life in your hand
17 is not a pleasant thought. But, I mean, if you're called to do
18 it, then you have to do it fairly.
19 Q. I'll ask you another personal question. If you were
20 related to Mr. Harris, hypothetically, or -- let's rephrase
21 that. Erase that.
22 If you were related to somebody who is charged in
23 a Capital Murder case, not Mr. Harris but some hypothetical,
24 would you be -- would that person be safe --
25 MS. YENNE: Your Honor, I'm going to object to
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1 improper commitment.
2 THE COURT: Let her finish the question.
3 Q. (BY MS. CONN) Would that person be safe or would
4 you -- would they be comfortable with you sitting, knowing what
5 your lifelong or long-held beliefs are about the death penalty,
6 just being -- you lean toward the death penalty. Is that fair?
7 A. Yes.
8 Q. You have a leaning towards the death penalty?
9 A. Yes.
10 Q. And would it be -- I don't want to -- again, I want
11 you to tell me what you believe. Could I call that a bias, a
12 slight bias even?
13 A. Yes.
14 Q. Okay. Would somebody in that position be comfortable
15 with you sitting in judgment as a juror on a case if you knew
16 what you know about yourself?
17 MS. YENNE: I'm going to object to improper
18 commitment question, Judge.
19 THE COURT: I'll overrule commitment.
20 MS. YENNE: I'm going to object to the form of
21 the question as conflict.
22 MS. CONN: That's not an objection in voir dire.
23 I object to the objection. I'm sorry.
24 THE COURT: Sustained. Rephrase.
25 Q. (By MS. CONN) Would you be comfortable -- would you
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1 want you -- if you were charged with Capital Murder, would you
2 want you sitting in that jury box?
3 A. Yes. Because I feel like I can be fair.
4 Q. And despite your feelings about the death penalty, you
5 can be fair?
6 A. Yes.
7 Q. Even though you know that your instinct is to vote for
8 death. Is that right?
9 MS. YENNE: I'm going to object to the form of
10 the question. May we approach, Judge?
11 THE COURT: You may.
12 (The following discussion was held at the bench.)
13 THE COURT: We're at a bench conference.
14 What's your objection?
15 MS. YENNE: I'm going to object to the form of
16 this question. There has been no testimony that her instinct
17 is to vote for death, and I am objecting to her suggesting that
18 her instinct is to vote for death. That has not been the
19 testimony of this prospective juror.
20 THE COURT: Okay. Just rephrase your question.
21 (Bench discussion concluded.)
22 THE COURT: Ms. Conn, 9 minutes.
23 MS. CONN: Thank you.
24 Q. (BY MS. CONN) Ms. Cooper, if this is -- I don't want
25 to misstate what you said. I don't want to misquote you, okay,
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1 if this is not what you said. But it's important to you to be
2 fair, right?
3 A. Yes.
4 Q. And my concern is that you're going to be able to toss
5 aside all your feelings and do some sort of mental
6 calculations, some calculus, to be fair?
7 A. Yes.
8 Q. And toss aside all your feelings?
9 A. Yes. Because I'm typically a rule follower anyway.
10 And so when given a directive and given the options and being
11 asked to weigh everything, I would do so.
12 Q. And you're going to be able to go home and tell your
13 husband, in the event that you do so, that you gave a awful --
14 use whatever adjective you want -- man, a murderer in a Capital
15 Murder case, a life sentence? You could do that?
16 A. Yes.
17 MS. CONN: Pass the juror, Your Honor.
18 THE COURT: All right. Ms. Cooper, if you would
19 step outside. Remember all the prior instructions I gave you
20 last week, as well as the verbal ones. You can just leave your
21 questionnaire there. We'll be back with you in a few minutes.
22 (Venire person out.)
23 THE COURT: We are continuing on the record.
24 Counsel for the State, counsel for the defense, and the
25 Defendant are present. Ms. Cooper has been excused.
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1 I will present Ms. Cooper to the State for any
2 challenges for cause.
3 MS. YENNE: None, Your Honor.
4 THE COURT: Present Ms. Cooper to the defense for
5 challenges for cause.
6 MS. CONN: Your Honor, I am not prepared at this
7 moment to do that; but I would like to make a bill before I
8 exercise any challenge.
9 THE COURT: You may.
10 MS. CONN: Okay. The question that I asked, Your
11 Honor, that I want to have answered is I asked Ms. Cooper,
12 assuming with me that you sat in a hypothetical death penalty
13 case, not this case, and in that case you were instructed that
14 Capital Murder is an intentional murder where it was the
15 conscious desire of the defendant to kill and he accomplished
16 that desire, along with some other serious crime, for example,
17 a homicide of a police officer. You and the 11 other jurors
18 heard all the evidence and decided beyond a reasonable doubt
19 that the defendant intentionally killed an innocent victim who
20 did not deserve to die.
21 Further, in that case there was no self-defense,
22 no defense of another person, no defense of property, it was
23 not a mistake, it was not an accident. The Defendant was not
24 forced to commit the murder. The victim did not provoke the
25 murder or deserve to die but was innocent. Despite whatever
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1 evidence concerning those defenses that I just discussed you
2 heard during that trial, you and 11 other jurors decided beyond
3 a reasonable doubt that the defendant acted intentionally. He
4 knew what he was doing and he meant to do it.
5 Further, it was not a murder where the defendant
6 was insane, mentally retarded or -- mentally retarded. It was
7 a murder where the defendant was able to form the specific
8 intent or conscious desire to murder and did so. The defendant
9 was not so drunk that he couldn't act intentionally, not so
10 high on drugs that he couldn't act intentionally, and you and
11 11 -- excuse me. Despite any evidence you heard about those
12 things, you and 11 other jurors decided beyond a reasonable
13 doubt that the defendant acted intentionally, he knew what he
14 was doing and he meant to do it and did it. You and 11 other
15 jurors all agreed beyond a reasonable doubt that he is guilty,
16 along with all those other things that we discussed.
17 I'm asking about your feelings. What are your
18 feelings about the death penalty as the only appropriate
19 remedy -- or excuse me, penalty -- not remedy -- for this
20 guilty murderer?
21 This is a proper question under Morgan versus
22 Illinois and under Standefer versus State and under Cardenas.
23 Standefer says that a commitment question is proper in the
24 event that it is one of the possible answers -- excuse me.
25 That one of the possible answers to the question gives rise to
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1 a challenge for cause. An automatic death penalty answer is a
2 possible answer to this question in this case so, therefore,
3 it's a proper question under Standefer.
4 It contained no unnecessary facts and tracked the
5 penal code elements and the defenses. We want to ask the
6 question pursuant to the 5th, 6th, 8th and 14th Amendments, the
7 denial of the right to be heard under the Texas Constitution,
8 right to effective assistance of counsel under the U.S.
9 Constitution, Cardenas versus State and Standefer versus State.
10 And what I'd like to do is get the juror back and
11 ask the question and receive an answer to my ultimate -- to my
12 question to -- to the question at the end that has the question
13 mark, Your Honor, if I may.
14 THE COURT: All right. Does that conclude your
15 bill?
16 MS. CONN: Yes.
17 THE COURT: All right. Do you have a challenge
18 for cause?
19 MS. CONN: Yes, Your Honor. May I have just a
20 moment for that? May I have a ruling on my bill?
21 THE COURT: You made the bill. You requested a
22 bill, and I gave you a bill. It's in the record.
23 MS. CONN: May I ask the question of the juror,
24 Your Honor, before we go further?
25 THE COURT: I ruled on the question you asked
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1 before and you asked to make a bill and you've made your bill.
2 MS. CONN: All right. May I have just a moment,
3 Your Honor?
4 THE COURT: You may.
5 MS. CONN: Your Honor, if I may, initially, Your
6 Honor, I talked with Ms. Cooper about her distractibility. She
7 had said she did not want to sit. I know it was the very end
8 of the questionnaire she said that she was -- Number 161 and
9 also up earlier she talked about she would not be able to sit.
10 She said specifically that it seems really overwhelming. She
11 said she did not want to sit. She said she would be
12 distracted. She said she would be thinking about her work, her
13 obligations at home, and her responsibilities outside of the
14 courtroom. So I believe that's a reason for her not to sit.
15 She said that she considered the death penalty as
16 a deterrent, which is a factor in her applying the death
17 penalty. I asked her that specifically, in those words,
18 whether or not she believed it to be a factor in her
19 consideration; and she said it was. A deterrent is not a
20 proper reason for giving death, Your Honor, in that the
21 Defendant in a Capital Murder case -- you know, death is
22 different. He is entitled to an individualized sentencing
23 based on the individual facts and the other Special Issues in
24 this individual case. And a deterrent or a message to the
25 community is not a proper consideration. It's not a factor for
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1 a death penalty case. Deterrence is not ever appropriate as a
2 reason to give someone a death penalty.
3 Multiple times -- she said multiple times that
4 the death penalty was more humane than a life sentence, which
5 again, is a misapplication of the law. She said specifically
6 with regard to page, I think, 18, she said she had fleshed that
7 out a little bit since filling out the questionnaire; but she
8 said specifically in response to these questions on the
9 questionnaire that the death penalty makes more sense than
10 sending someone to prison for life without parole so they could
11 spend 30 years in prison only to die there. And that's
12 Question 100 and 103 -- excuse me.
13 Number 102 she said, I do think convicted
14 murderers where evidence is definitive should not be given life
15 without parole sentences, again, and then, See Number 100, and
16 references back to Question No. 100.
17 Number 103: What is your best argument for the
18 death penalty? She said, If there is definitive proof that the
19 Defendant took a life, he or she should pay with his or her own
20 life. I asked her if she still feels that way, and she said
21 yes.
22 She said -- with regard to 104, Your Honor: What
23 is your best argument against the death penalty? She said, If
24 evidence is not definitive and there is any chance the
25 individual is innocent, I would argue against it. I asked her
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1 specifically what -- would you give someone -- if there was
2 some doubt as to their guilt, you would give them LWOP, or life
3 without parole, and she said yes. In other words, she is
4 holding a person who is accused as worthy of life without
5 possibility of parole rather than giving a death penalty to
6 someone who is accused but not found guilty beyond a reasonable
7 doubt. If there is any doubt in the case, she's not going to
8 find them not guilty. She's going to give them life. That's
9 what -- that was what she said.
10 Then again, she said if there is any doubt, she
11 would give them LWOP. She said if there is some doubt she
12 would give them LWOP. If there is any reasonable doubt, she
13 would give them LWOP. We wrote those things down, Your Honor,
14 direct quotes from this potential juror.
15 She believes strongly in the eye for an eye. She
16 did consider herself to be a religious person. She does have a
17 basis in her personal and religious beliefs for the death
18 penalty.
19 I asked her specifically if she had -- if she
20 leaned toward the death penalty in a Capital Murder case and
21 she said she did. Further, she said in her own words that she
22 had a bias. And I -- I'm sure the Court recalls, but I did try
23 to pose the question in such a way that she could answer it.
24 And if she did not, if that was an incorrect understanding on
25 my part that she would -- she had an opportunity to correct me;
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1 and she said, yes, she has a bias in favor of the death
2 penalty.
3 So I have a challenge for cause.
4 THE COURT: Response?
5 MS. YENNE: May I respond? I wonder if I was in
6 the same courtroom. This prospective juror went through the
7 sentencing phase and answered repeatedly, first of all, she
8 could find someone not guilty if there was a reasonable doubt
9 on phase one. She could find that person not guilty and never
10 get to the second phase of the trial and would hold the State
11 to its burden beyond a reasonable doubt.
12 Then went on to the punishment phase, and on
13 numerous occasions -- as Ms. Conn would say, I guess I must
14 have asked 30 times. I did ask repeatedly, once someone is
15 found guilty, would you automatically consider one penalty or
16 the other? No. She indicated she could consider both
17 appropriate penalties and established very clear for the record
18 that she would not automatically consider one sentence or the
19 other upon the finding of guilt.
20 We then went very methodically through the future
21 danger question, Special Issue No. 1; and she said even if he
22 was guilty, no excuse, Capital Murderer, she could answer
23 future danger no. That was clear from the record. And then
24 said that based on the evidence if I proved it to her beyond a
25 reasonable doubt she could answer it yes. But even if that
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1 were the case, it wasn't over. She would still have to
2 consider mitigation.
3 This juror volunteered on questioning -- this
4 prospective juror -- to Ms. Conn that there were some things in
5 reflection on her questionnaire that after it was explained to
6 her, she knew she could follow the law. She even volunteered
7 if there were sufficient mitigation. This juror from the stand
8 volunteered, I'd have to consider mitigation.
9 Additionally, she also said she could be fair
10 when I asked her could you be fair?
11 The work-related question she actually clarified
12 quite well that she will not be distracted during this trial.
13 She would be distracted during a recess to address her job,
14 which is what every other juror does on a recess. They take a
15 break and they address their other responsibilities. But that
16 she could be fair and fairly weigh the evidence.
17 When she was asked by counsel -- when bias was
18 suggested by counsel -- not by the juror -- when she was asked,
19 would you want you as a juror, knowing your beliefs, she said
20 yes. This juror, prospective juror, was humble, took the
21 process serious, said having the Defendant in the courtroom
22 made her realize it and she could be fair.
23 MS. CONN: May I respond briefly?
24 THE COURT: You may.
25 MS. CONN: Thank you, Your Honor. The Defendant
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1 is entitled to jurors who are free from bias, Morgan versus
2 Illinois, United States versus Cornell at 25 Fed. Case 650.
3 General questions, Your Honor, generally do not
4 comport with Morgan versus Illinois. Questions such as you can
5 follow the law; you can be fair, can't you; and you can follow
6 the Court's instructions are insufficient to provide the kind
7 of test that the juror is expected to have here. We're not
8 saying this is not a very nice person, Your Honor. We're
9 saying that she's unable to follow the law based on her bias
10 toward the death penalty.
11 I have another -- well, to quote it directly is:
12 These general questions "you can be fair" are unable to detect
13 those jurors with views preventing or substantially impairing
14 their duties in accord with their instructions and their oath.
15 THE COURT: All right. As I recall, that
16 question was by you and it was a question something like, Do
17 you have a slight bias? And I think throughout all of her
18 questioning I think that she made it very clear that she could
19 consider everything, especially in your question -- that
20 Ms. Yenne objected to, but I allowed her to answer it -- that
21 she felt she would feel comfortable with a person like herself
22 on the jury if it was one of her loved ones on trial.
23 And I think judging by all of the answers and the
24 way she dealt with the questionnaire, the Court believes that
25 she could be fair, and that given the totality of the answers,
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1 I'm not going to grant your challenges for cause.
2 Does the State have a peremptory you wish to
3 exercise?
4 MS. YENNE: No, Your Honor.
5 THE COURT: Does the defense have a peremptory
6 you wish to exercise?
7 MS. CONN: Yes, Your Honor.
8 THE COURT: Defense exercises Peremptory No. 6.
9 Could you have Ms. Cooper come back in?
10 (Venire person in.)
11 THE COURT: We're continuing on the record. The
12 record will reflect that counsel for the State, counsel for
13 defense, and the Defendant are present. Ms. Cooper has
14 reentered the courtroom.
15 Ms. Cooper, I want to thank you very much for
16 participating in the jury selection process. I will excuse you
17 at this time from further consideration on the panel. However,
18 before I do that, I would like to instruct you to follow all
19 the instructions that I previously gave you. Remember I gave
20 you long written ones as well as some verbal ones?
21 VENIRE PERSON: Yes, sir.
22 THE COURT: All right. The only exception to
23 that is since you will not sit on this jury if you -- if we
24 have media publicity and you choose to follow it, you would be
25 free to follow that.
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1 THE COURT: Okay. And you've been doing very
2 well about giving very clear and audible responses. Sometimes
3 we have people that want to nod their head or say uh-huh or
4 something like that. That just makes it difficult for the
5 court reporter and record. So if you can just continue to give
6 the verbal audible responses that you're doing, that will make
7 things go better. Can you do that for me?
8 VENIRE PERSON: Yes, sir.
9 THE COURT: All right. You may begin.
10 BRENDA LEE,
11 having been first duly sworn, testified as follows:
12 VOIR DIRE DIRECT EXAMINATION
13 BY MS. YENNE:
14 Q. Good morning, Ms. Lee. How are you?
15 A. I'm fine, thank you.
16 Q. My name is Jeri Yenne, and I'm the District Attorney
17 here in Brazoria County. And Ms. Mary Aldous, seated to my
18 left, is my first assistant.
19 Further left is Kerri Mallon and Jay Wooten, who
20 represent the Defendant, James Harris, Jr.
21 The Defendant is charged with Capital Murder, and
22 so it's the only time we as attorneys have an opportunity to
23 speak to you individually because it is the highest crime that
24 could be possibly committed. It's the highest allegation
25 against a person and it involves the possibility of the death
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1 penalty; and so because it involves the possibility of death as
2 a possible punishment, we get to talk to you individually.
3 Okay?
4 A. Okay.
5 Q. And we're trying to find people that could be fair and
6 impartial jurors. And in order to be a fair juror, you have to
7 honestly be able to say you could follow the law and the
8 evidence given to you by the Court. Okay?
9 A. Yes.
10 Q. So I'm going to go over some legal concepts and see if
11 you could follow the law in that regard.
12 Now I noticed from your questionnaire
13 something --
14 MS. YENNE: May I approach, Judge?
15 THE COURT: You may.
16 Q. I may not go over specifically. I will at a later --
17 that it was important to you to be fair here.
18 A. Yes, ma'am.
19 Q. Okay. So I want to know if you could fairly follow
20 the law, and then I'm going to pick your brain about this
21 later. Okay?
22 A. Okay. But if you're going to do that, I'm going to
23 put my glasses on.
24 Q. Go for your glasses. Okay.
25 Ms. Lee, I have about ten pair of cheaters, I
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1 call them. Okay? I have them all over the house and the
2 office. Now I never thought I'd need them.
3 So as the Court said, this is the State of Texas
4 versus James Harris; and the Defendant is charged with Capital
5 Murder. The indictment alleges on or about the 14th day of
6 January, 2012, before the presentment of the indictment, in
7 Brazoria County, Texas, the Defendant did then and there
8 intentionally cause the death of an individual, Alton Wilcox,
9 by stabbing Alton Wilcox with a knife, and the Defendant was
10 then and there in the course of committing or attempting to
11 commit the offense of Robbery of Darla Wilcox.
12 It also alleges that on or about the 14th day of
13 January, 2012, in Brazoria County, Texas, the Defendant --
14 before the presentment of the indictment, the Defendant did
15 then and there intentionally cause the death of an individual,
16 Alton Wilcox, by stabbing Alton Wilcox with a knife, and the
17 Defendant was then and there in the course of committing or
18 attempting to commit the offense of Burglary of a Habitation
19 owned by Darla Wilcox.
20 The last paragraph alleges that on or about the
21 14th day of January, 2012, before the indictment, in Brazoria
22 County, Texas, the Defendant did then and there intentionally
23 cause the death of an individual, Alton Wilcox, by stabbing
24 Alton Wilcox with a knife, and the Defendant was then and there
25 in the course of committing or attempting to commit the offense
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1 of Burglary of a Habitation owned by Alton Wilcox. Okay?
2 A. Okay.
3 Q. So that's what I'm going to have to prove to you. Now
4 would you agree with me that the State has a huge
5 responsibility here?
6 A. Yes, ma'am.
7 Q. Okay. We hold other people's lives in our hand,
8 right?
9 A. Correct.
10 Q. And is it important to you that the State, meaning the
11 prosecution, play by the rules?
12 A. Definitely.
13 Q. Okay. And that the police play by the legal rules?
14 A. Definitely.
15 Q. Okay. And to me, the end never justifies the means.
16 It can't.
17 A. No, ma'am.
18 Q. Because the rules are important to me. And I want to
19 maybe get your view because when we follow the rules
20 appropriately, then innocent people shouldn't be convicted. Am
21 I making sense?
22 A. Yes, ma'am.
23 Q. Okay. The rules are there to protect you. Okay? So
24 let me go a little further. That's what I have to prove to
25 you.
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1 Now let's talk about what murder is. Murder is
2 intentionally causing the death of an individual.
3 Cold-blooded, unjustified, no excuse, no self-defense, no
4 defending other people, just intending to cause someone's death
5 and doing it.
6 A neighbor gets mad at another neighbor and
7 decides he's going to kill the neighbor. And so he gets a gun,
8 confronts the neighbor on the street and shoots him to death.
9 No justification, no self-defense. Cold-blooded killing.
10 Okay?
11 A. Yes, ma'am.
12 Q. That's regular murder. And you're thinking what could
13 Capital Murder be? Well, Capital Murder is that type of
14 murder, the intentionally causing the death, plus something
15 else. Regular murder plus a couple other elements. Let's talk
16 about that in a minute. It could be intentionally causing the
17 death of a police officer in the line of duty, knowing that
18 they are a police officer. Could be intentionally causing the
19 death of a child younger than 10 years of age.
20 A. Yes.
21 Q. Intentionally causing the death of more than one
22 person during the same criminal transaction. Like if I walked
23 into a convenience store and shot five people to death. Am I
24 making sense?
25 A. Yes, ma'am.
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1 Q. Intentionally causing the death during a murder for
2 hire. I was hired to do it, I did it, and so that's the
3 special element that raises it to either life without parole or
4 the death penalty. That raises it. It's murder plus.
5 So now we have this type of murder, Capital
6 Murder. The person intentionally commits murder in the course
7 of committing or attempting to commit the kidnapping, burglary,
8 robbery, aggravated sexual assault, arson, obstruction or
9 retaliation, or terroristic threat. So they intentionally
10 cause the death during the course of burglary or robbery.
11 Remember, I read that?
12 A. Yes, ma'am.
13 Q. That's what raises it to Capital Murder.
14 So let me go a little further. A person acts
15 intentionally or with intent with respect to a result of his
16 conduct when it is his conscious objective or desire to cause
17 the result. The killing. The death. Am I making sense?
18 A. Yes, ma'am.
19 Q. Okay. So let's go a little further. Anyone who sits
20 on a jury has to be able to follow the law. Okay? So I'm
21 going to ask you if you can. My burden to prove the elements
22 in the indictment to you is beyond a reasonable doubt. Okay?
23 A. Yes, ma'am.
24 Q. I gladly assume that burden. So I want to ask you,
25 the prosecution -- you're going to get an instruction if you
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1 were on a jury. The prosecution has the burden of proving the
2 Defendant guilty and it must do so by proving each and every
3 element of the offense charged beyond a reasonable doubt. It
4 is not required that the prosecution prove guilt beyond all
5 possible doubt. It is required that the prosecution's proof
6 excludes all reasonable doubt concerning the Defendant's guilt.
7 Okay?
8 A. Yes, ma'am.
9 Q. Can you follow that instruction?
10 A. Yes, ma'am, I can.
11 Q. Then I'm going to tell you a little bit about those
12 burdens of proof, the levels. So -- and I told you that is a
13 burden I gladly assume. I should have that high a burden,
14 shouldn't I?
15 A. Yes, ma'am.
16 Q. Okay. Accusing someone of a crime is not a minor
17 matter to me. Is it to you?
18 A. No, ma'am.
19 Q. Okay. And Capital Murder is the worst crime anybody
20 can be excused of.
21 A. Yes, ma'am.
22 Q. To me, it's all the more reason that I would have to
23 prove to you beyond a reasonable doubt.
24 A. Yes, ma'am.
25 Q. Okay. So my question to you is if I prove to you the
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1 elements of the indictment -- I have to prove all of them.
2 County, I never forget it. I haven't forgotten. The county,
3 burglary, robbery, intent to cause the death. I'm required to
4 prove to you what I read to you. If I prove to you the
5 elements of Capital Murder beyond a reasonable doubt, can you
6 find someone guilty of Capital Murder?
7 A. Yes, ma'am.
8 Q. The other question -- it's a serious crime, you know;
9 and it involves serious consequences. If I do not prove to
10 you -- let's say my co-counsel and I are having a bad week and
11 we don't do it. We do not prove to you our responsibility,
12 beyond a reasonable doubt the elements of Capital Murder. Can
13 you find someone not guilty?
14 A. Yes, ma'am.
15 Q. Because, to me, that's my responsibility. Yours is to
16 tell me did I prove it or not.
17 A. Yes, ma'am.
18 Q. If I didn't do it, the jury's responsibility is to
19 find someone not guilty, no matter what the crime.
20 A. Yes, ma'am.
21 Q. Do you agree with that?
22 A. I do.
23 Q. Okay. Let's go a little further. The State is
24 required to prove to you the elements alleged in the
25 indictment. The intentionally causing the death during the
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1 course of robbery or burglary. There will always be
2 inconsistencies in any case.
3 Let me give you an example. Let's pretend there
4 is a car wreck outside the courthouse and a guy is charged with
5 running a red light. Ten witnesses saw him do it. He admits
6 he did it. So I've proven beyond a reasonable doubt he ran the
7 red light; but a couple witnesses disagree on the time,
8 3:20 p.m. or 3:30, or whether it was misting or raining or the
9 color of the vehicle. They may not go to the elements of the
10 indictment. Do you see what I'm saying?
11 A. Yes, ma'am.
12 Q. There will always be inconsistencies in any case on
13 the planet Earth. Okay?
14 A. Yes, ma'am.
15 Q. Okay. Let's go a little further. Here are the levels
16 of burden of proof. The lowest level of burden of proof is
17 preponderance of the evidence, meaning the greater weight and
18 degree of credible evidence. Civil cases where you seek money
19 damages, 50 percent plus a grain of sand. Just slight tipping
20 the scales. That's the lowest burden for civil lawsuits, car
21 wreck.
22 The next highest burden is a civil burden, clear
23 and convincing evidence. The measure or degree of proof that
24 produces a firm belief or conviction that the allegations
25 sought to be established are true. That's higher than
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1 preponderance, isn't it?
2 A. Yes, ma'am.
3 Q. That's parental rights termination cases. And, to me,
4 there should be a higher burden when we're trying to take
5 someone's kids away.
6 A. Yes, ma'am.
7 Q. Okay. And then there is the highest burden. And do
8 you consider beyond a reasonable doubt higher than those two?
9 A. Yes, ma'am.
10 Q. Beyond a reasonable doubt is the burden for criminal
11 cases. Highest burden that you could find. But there is no
12 definition. It's up to the jury. Go figure. But it's higher
13 than these. Okay?
14 A. Yes, ma'am.
15 Q. All right. Presumption of innocence. If you or I
16 were accused of a crime -- any crime, misdemeanor, felony -- or
17 a family member -- burglary, theft, robbery, assault -- we
18 would be innocent until the State comes forth -- presumed
19 innocent until the State comes forward with evidence to show
20 otherwise. Okay?
21 A. Yes, ma'am.
22 Q. So all persons are presumed to be innocent and no
23 person may be convicted unless each element of the offense is
24 proved beyond a reasonable doubt. The fact that a defendant
25 has been arrested, confined, indicted, or otherwise charged
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1 with an offense gives rise to no inference of guilt at his
2 trial.
3 A. Yes, ma'am.
4 Q. Okay. Can you follow that instruction?
5 A. Yes, ma'am.
6 Q. Do you believe in that instruction?
7 A. I do.
8 Q. Okay. So as he sits here today, can you presume
9 Mr. Harris to be innocent?
10 A. Yes, ma'am.
11 Q. Okay. All right. Let's go a little further. Burden
12 of proof. The Defendant has no burden of proof. The law does
13 not require a defendant to prove his innocence or produce any
14 evidence at all. They don't have to bring you a shred of
15 evidence. I'm required to prove to you beyond a reasonable
16 doubt, and they have no responsibility to prove anything to
17 you.
18 A. Yes, ma'am.
19 Q. Can you follow that instruction?
20 A. Yes, ma'am.
21 Q. You know, some people say, oh, I wish I would have
22 heard from the defendant, particularly in this serious a crime.
23 But these are our rules; and to me, they're important. I don't
24 have to prove my innocence. The State has to prove my guilt.
25 Am I making sense?
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1 A. Yes, ma'am.
2 Q. Okay. You could follow that instruction?
3 A. I have no problem with it.
4 Q. Okay. Fifth Amendment. To me, this is one of the
5 hardest fought rights that separates the United States from
6 every other country on this planet. If you or I were accused
7 of a crime, we have an absolute privilege not to say anything.
8 A right against self-incrimination, a right not to testify.
9 In other words, he doesn't have to bring any
10 evidence. You can't consider it. And he or she, the
11 defendant, has a right not to testify. We never know in a case
12 whether a defendant will choose to take the witness stand. But
13 it's their choice. They don't have to. So you would be given
14 an instruction if a defendant chose not to take the witness
15 stand. Every defendant in any criminal case has a right not to
16 testify. You cannot consider it for any reason. Can you
17 honestly follow that instruction?
18 A. Yes, ma'am.
19 Q. Okay. You know, sometimes -- there is maybe a lot of
20 reasons why someone might not testify, other than being guilty.
21 They may not present themselves well. They may hold the State
22 to their burden, and that's good enough. Would you agree with
23 me some people are farther ahead until they open their mouths?
24 A. Yes, ma'am.
25 Q. Okay. You're thinking of some family members, aren't
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1 you, Ms. Lee?
2 A. Yes.
3 Q. Or maybe myself. Okay? But you couldn't consider it
4 for any reason.
5 A. Yes, ma'am. No problem.
6 Q. So I either prove to you beyond a reasonable doubt --
7 and if the defendant didn't testify, you couldn't consider it.
8 If I fell on my face and didn't meet my burden, if the
9 defendant didn't testify, you could still find someone not
10 guilty?
11 A. Yes, ma'am.
12 Q. All right. If you had to vote right now, you would
13 have to vote not guilty because you have not heard any evidence
14 yet.
15 A. Yes, ma'am.
16 Q. Okay. Now the indictment alleges one charge of
17 Capital Murder, the victim being Alton Wilcox, with different
18 alternate methods of committing the same. Either by robbery or
19 by burglary. In other words, intentionally causing the death
20 of Mr. Wilcox by stabbing him to death during the course of a
21 robbery or burglary.
22 As long as the jury unanimously agrees beyond a
23 reasonable doubt that the elements of Capital Murder are met,
24 intentionally causing the death of Alton Wilcox, they don't
25 need to unanimously agree on which manner and means. Six of
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1 you can agree on robbery and six of you could agree on the
2 burglary. Am I making sense?
3 A. Yes, ma'am.
4 Q. All right. The manner and means -- and I'll explain
5 what that means later.
6 If you were on a jury, you will get to hear
7 certain types of evidence. Direct evidence. Evidence that
8 directly demonstrates the ultimate fact to be proven, such as
9 eyewitness testimony, a video of a crime, or a confession.
10 That's direct evidence.
11 Now there is another type of evidence, and I hate
12 this definition. Circumstantial evidence. Evidence that is
13 direct proof of a secondary fact which, by logical inference,
14 demonstrates the ultimate fact to be proven.
15 I'll give you an example. Let's say there is a
16 5-year-old little boy. He's got a backyard pool, and he wants
17 to go swimming. He asks his parents and they say not right
18 now, Honey, later. They go about their housework and the next
19 they hear, pitter-patter of little feet on the stairs, backdoor
20 opens, big splash. Mom and Dad go to the backyard. The little
21 boy is laying in the wet swimsuit in the lounge chair. Now Mom
22 and Dad have concluded, based on those secondary facts, he's
23 been in the pool. Am I making sense?
24 A. Yes, ma'am.
25 Q. All right. Without witnessing it. Okay?
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1 Now there is also an example from my own
2 childhood. You and I come from the day and age when they
3 actually gave children St. Joseph's baby aspirin a long time
4 ago.
5 A. Yes, ma'am.
6 Q. Now it's supposed to kill them, but we got it all the
7 time. I liked the way it tasted, the little orange candy. So
8 my mom had St. Joseph's baby aspirin for when we were sick.
9 She had a supply. And she happened to be sick that day, and
10 she is checking on us every 15 minutes. She'd set a kitchen
11 timer. My brother who was 3, and I was 4, we are playing with
12 Play-Doh at the kitchen table. When she went to lay back down,
13 my brother looked at me and said, I'm hungry. We got on the
14 stool, we got up to the refrigerator, we took the baby aspirin.
15 We ate three bottles of St. Joseph's baby aspirin. 150
16 aspirin. I only ate one. My brother ate two bottles.
17 My mom gets up, and she panics. She asked us --
18 she sees the aspirin bottle and orange faces -- who ate those
19 aspirin? My brother and I told her the cat had eaten the
20 aspirin. Now the cat's mouth was not orange. Ours were very
21 orange. So she ran us to the hospital to get our stomachs
22 pumped.
23 Now she had to conclude from those secondary
24 facts that we ate the aspirin. Am I making sense?
25 A. Yes, ma'am.
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1 Q. Without seeing it.
2 So my question to you is if the State proves to
3 you beyond a reasonable doubt the elements of the offense, can
4 you convict someone of Capital Murder based on circumstantial
5 evidence, if it raises to the level of beyond a reasonable
6 doubt?
7 A. Yes, ma'am.
8 Q. Okay. Let's go a little further. Eyewitness
9 testimony. Now there are some crimes that are committed in
10 front of eyewitnesses, right?
11 A. Yes, ma'am.
12 Q. There are some that are committed in front of whole
13 baseball stadiums these days.
14 A. Yes, ma'am.
15 Q. Okay. Some are on video. Some crimes are committed
16 where no one sees, right?
17 A. Yes, ma'am.
18 Q. And some are committed in front of five, six, or just
19 one eyewitness.
20 A. Yes, ma'am.
21 Q. So my question to you is if the State had one
22 eyewitness and if I -- and if you believed the testimony of
23 that eyewitness beyond a reasonable doubt and if that
24 eyewitness' testimony established all of the elements of
25 Capital Murder beyond a reasonable doubt, could you convict
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1 someone of Capital Murder based on that eyewitness' testimony?
2 A. Yes, ma'am.
3 Q. Okay. Now in order to sit on any jury you have to be
4 able to consider the penalty range for the crime. If you were
5 on a robbery jury and the penalty range was 2 to 20, not less
6 than 2 years, more than 20 years, in order to even sit on the
7 jury you would have to consider the full range.
8 Now I hate to say this on the record, but penalty
9 ranges are one good thing that the legislature has done. One.
10 Would you agree with me that there are no two crimes that are
11 alike?
12 A. Yes, ma'am.
13 Q. Are there any two human beings alike?
14 A. No, ma'am.
15 Q. And so there is a range for a jury to apply the facts
16 and the people factor and the events and the evidence to make
17 an appropriate punishment. Am I making sense?
18 A. Yes, ma'am.
19 Q. And the range may be -- may seem to be too high on one
20 end or too low, but you have to consider the full range to make
21 an appropriate decision.
22 A. Yes, ma'am.
23 Q. Okay. And so would you honestly be able to keep an
24 open mind and apply the facts? And no one can say to you what
25 you would do because you haven't heard the evidence.
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1 A. Yes, ma'am.
2 Q. In other words, would you give somebody 10 years? You
3 don't know because you haven't sat and listened to the
4 evidence.
5 A. Yes, ma'am.
6 Q. So can you understand why there is a full range?
7 A. Yes, ma'am.
8 Q. Now the penalty range for Capital Murder is life
9 without parole or the death penalty.
10 A. Yes, ma'am.
11 Q. Okay. Now would you agree with me that both of these
12 are pretty stiff sentences?
13 A. Yes, ma'am.
14 Q. Life without parole is a horrible sentence, isn't it?
15 A. Yes, ma'am.
16 Q. The death penalty is a horrible sentence, isn't it?
17 A. Yes, ma'am.
18 Q. Do you believe there should be a penalty range for
19 Capital Murder, some choices?
20 A. Yes.
21 Q. It's the highest crime. Some people automatically say
22 there should be only one penalty, the death penalty. Or only
23 one punishment, life without parole. Well, the legislature
24 gives two penalties. Do you believe that either could be
25 appropriate, depending on the circumstances?
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1 A. Yes, ma'am.
2 Q. So can you consider the full penalty range for Capital
3 Murder?
4 A. Yes, ma'am.
5 Q. Let's go a little further. If you sat on a jury you
6 might be asked to consider lesser offenses, and then we would
7 have to know if you can consider the penalty range for those
8 lesser offenses. In a prosecution for an offense with
9 lesser-included offenses, the jury may find the defendant not
10 guilty of the greater offense but guilty of any lesser-included
11 offense.
12 Let's say that I didn't prove to you the elements
13 of Capital Murder beyond a reasonable doubt. I fell on my face
14 on the robbery or burglary. But then murder is always a
15 lesser-included charge of Capital Murder. Then you would be
16 asked to go on and consider murder, intentionally causing the
17 death of an individual. If that person was found guilty of
18 regular murder -- remember what I gave you, the first example?
19 A. Yes, ma'am.
20 Q. Then the penalty range for that would be not less than
21 5 years nor more than 99 years, including life, and up to a
22 10,000-dollar fine.
23 Now we talked about that there are different
24 types of circumstances, correct?
25 A. Yes, ma'am.
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1 Q. Could be strangers, right?
2 A. Right.
3 Q. Could be family.
4 A. Right.
5 Q. Could be premeditated.
6 A. Yes, ma'am.
7 Q. Could be instantaneous rage, desperation.
8 A. Yes.
9 Q. Could be substance abuse.
10 A. Yes.
11 Q. Could be partly responsibility of the victim, or could
12 be totally innocent victim. Am I making sense?
13 A. Yes, ma'am.
14 Q. So there are a whole variety of circumstances. So if
15 you found someone not guilty of Capital Murder and guilty of
16 regular murder with the penalty range being 5 years to
17 99 years, including life -- which is parolable life. You could
18 parole under these circumstances -- and up to a 10,000-dollar
19 fine, can you consider the full range for murder, from the
20 minimum to the maximum?
21 A. Yes, ma'am.
22 Q. Even if it started out as a Capital Murder?
23 A. Yes, ma'am.
24 Q. Okay. Let's go a little further. Witness
25 credibility. Jurors are the sole judge of the credibility of
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1 the witnesses. They can believe -- jurors can believe all,
2 some, or none of what a witness says. All witnesses have equal
3 credibility before they begin to testify. Before they hit that
4 witness stand where you're sitting, they have to be started out
5 equally.
6 A. Yes, ma'am.
7 Q. So I ask you can you start out all witnesses equally?
8 A. Yes, ma'am.
9 Q. Okay. All right. Some people say, you know, if
10 somebody's a doctor, I'm going to automatically believe them or
11 not believe them. Is that you?
12 A. No.
13 Q. Okay. If somebody is a police officer, I'm going to
14 give them an edge. Or I'm going to disregard them because I
15 don't like cops.
16 A. No, ma'am.
17 Q. Would you judge that person just based on what you
18 hear?
19 A. No, ma'am. Just on what I hear, yes.
20 Q. Just from the stand?
21 A. Yes.
22 Q. Somebody doesn't have a particular edge because they
23 have an occupation?
24 A. No.
25 Q. Okay. Let's go a little further. Now there are
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1 certain rules that I have to play by. Let's talk about them.
2 And the police have to play by. And they are legal rules and
3 they are important rules.
4 The rules for a confession. A confession of a
5 defendant is admissible in evidence if freely and voluntarily
6 made, electronically recorded or written, the confession shows
7 that the accused has been warned prior to making such
8 confession of the right to remain silent, used against him in
9 court, the right to a lawyer, if they cannot afford a lawyer
10 the right to have a lawyer appointed, the right to stop
11 questioning at any time, and if they knowingly, intelligently
12 and voluntarily waive those rights. Do you think those are
13 important?
14 A. Yes, ma'am.
15 Q. Okay. Now I asked you is it important that the police
16 play by the rules.
17 A. Definitely.
18 Q. Okay. To me, law enforcement has a responsibility to
19 make sure they comply with the law, right?
20 A. Yes.
21 Q. They expect us to, don't they?
22 A. Yes, ma'am.
23 Q. Okay. So do you consider those warnings important?
24 A. Yes.
25 Q. Okay. Let's go a little further. The jury gets to
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1 decide whether the police comply -- it's your decision based on
2 evidence -- or if the confession was involuntary. Okay? Not
3 voluntarily given.
4 A. Yes, ma'am.
5 Q. Coercion, duress, a variety of reasons. Okay? Or it
6 could be that an essential warning is missing. Okay? Let me
7 ask you this. On those warnings, on the prior page, do you
8 consider them all essential?
9 A. Yes, ma'am.
10 Q. Okay. So let's go a little further. If the jury did
11 not believe the police complied, if you do not believe the
12 police complied or the confession was involuntary, you would
13 get an instruction from the Court. Now it's up to the jury
14 whether they believe it. You get to decide. But if you don't
15 believe the police complied, or the confession was involuntary,
16 then you will wholly disregard the alleged statement or
17 confession and not consider it for any purpose.
18 A. Yes, ma'am.
19 Q. Can you follow that?
20 A. Yes, ma'am.
21 Q. So let me tell you what that really means. Let me put
22 it in context. Okay? Because these are not easy decisions.
23 You told me the State has to play by the rules, right?
24 A. Yes, ma'am.
25 Q. Okay. And the end doesn't justify the means, does it?
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1 A. No, it does not.
2 Q. Okay. And I don't get to do something illegal just to
3 get what I want, do I?
4 A. No.
5 Q. Okay. Particularly where people's lives are at stake.
6 Is that a fair statement?
7 A. Definitely.
8 Q. You have been a juror on a Capital Murder case -- not
9 this one. You're sitting in that jury room and you've heard a
10 defendant -- you've heard it. You've listened to the
11 confession. Ugly, gory details. Killing the victim, enjoying
12 it, no justification, no excuse, no self-defense. Cold-blooded
13 killing. You've heard it. The cat's out of the bag. All
14 right? But you believe the police did not comply. An
15 essential warning was clearly left off, or it was involuntary.
16 Can you wholly disregard the statement and confession and not
17 consider it for any purpose?
18 A. Yes, ma'am.
19 Q. Okay. Let's go a little further. Let me tell you
20 what that means. Let's say that confession was the piece of
21 evidence that got me beyond a reasonable doubt. It's serious
22 because wholly disregarding it, if I don't meet my burden of
23 proof -- because you have honestly had to wholly disregard
24 it --
25 A. Yes, ma'am.
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1 Q. -- can you find someone not guilty?
2 A. Yes, ma'am.
3 Q. Okay. I'm not saying it's pleasant. But can you do
4 that?
5 A. I can.
6 Q. Okay. Voluntary intoxication. Now voluntary
7 intoxication does not constitute a defense to the commission of
8 a crime. Okay?
9 A. Yes, ma'am.
10 Q. If I decide to drink 20 beers, tie one on and assault
11 a couple people, my voluntarily intoxicating myself is not a
12 defense. Can you follow that instruction?
13 A. Yes, ma'am.
14 Q. Okay. Let's go a little further. This is a mouthful,
15 but I'll explain it. A person is criminally responsible if the
16 result would not have occurred but for his conduct, operating
17 either alone or concurrently with another cause, unless the
18 concurrent cause was clearly sufficient to produce the result
19 and the conduct of the actor clearly insufficient.
20 Let me give you an example. I've always read
21 that and I finally had to figure out an example. Let's say I
22 live in an apartment and I set a fire in my apartment and it
23 kills -- I intentionally set a fire, and it kills the people
24 next door.
25 A. Okay.
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1 Q. They die. The fire department is having a bad day.
2 It's a holiday weekend and two engines break down and they are
3 short staffed and their response time is about twice the time
4 and they can't save the family next door. Okay?
5 A. Okay.
6 Q. My act in setting the fire was clearly sufficient
7 alone to cause the result. Am I making sense?
8 A. Yes, ma'am.
9 Q. Okay. Now let's talk about what burglary is. A
10 person commits an offense -- now that's the underlying offense.
11 Remember, I have to prove to you the burglary or robbery. The
12 course of burglary or robbery, am I making sense --
13 A. Yes, ma'am.
14 Q. -- for it to be Capital Murder.
15 So you'd get an instruction that a person commits
16 an offense if, without the effective consent of the owner, the
17 person enters a habitation with intent to commit a felony,
18 theft, or an assault, or enters a habitation and commits or
19 attempts to commit a felony, theft, or an assault. Okay?
20 A. Okay.
21 Q. So can you hold me to my burden to prove to you that
22 there was a burglary?
23 A. Yes, ma'am.
24 Q. Okay. Let me go a little further. And if I don't
25 prove to you the elements of the burglary or the robbery, then
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1 it's not Capital Murder. Am I making sense?
2 A. Yes, ma'am.
3 Q. Okay. Robbery. A person commits an offense if, in
4 the course of committing theft and with intent to obtain or
5 maintain control of the property, he intentionally, knowingly,
6 or recklessly causes bodily injury to another.
7 I decide to go shoplifting, and I'm going to get
8 some makeup from Wal-Mart.
9 My husband and I went to Wal-Mart Saturday in
10 Angleton and -- we were going to pick something up on our way
11 out of Angleton, and there were three police cars. And we just
12 decided, should we even go in? Must have been a shoplifter.
13 We went in anyway.
14 Okay. Intentionally, knowingly, or recklessly
15 caused bodily injury. I punch the manager out. I give him a
16 black eye in the course of committing theft. That's robbery.
17 Okay?
18 A. All right.
19 Q. "In the course of committing theft" means conduct that
20 occurs in an attempt to commit, during the commission, or in
21 immediate flight after the attempt or commission of theft.
22 Okay?
23 A. Okay.
24 Q. All right. So can you hold me to my burden on that
25 definition of robbery?
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1 A. Yes, ma'am.
2 Q. Okay. Now there are two parts of a trial, okay, most
3 of the time, some of the times, depending on what the jury
4 decides.
5 Now you indicated to me that you could consider
6 the full penalty range for Capital Murder.
7 A. Yes, ma'am.
8 Q. Okay. Would you turn to page 28 of your
9 questionnaire? I want to ask if you can consider and follow
10 the rules on this process, wholly consider all the evidence.
11 Because you said something to me that very much rang with me on
12 Number 153.
13 A. Okay.
14 Q. What would be your greatest concern if you were to be
15 selected to be a juror in a capital case?
16 To be as open to the facts and the case as
17 possible so whatever decision reached, I can live with it.
18 A. Yes, ma'am.
19 Q. Is that your true feelings?
20 A. Yes, ma'am.
21 Q. So I'm going to ask you if you can be open to all the
22 facts and evidence and follow the law. Because a man's life is
23 at stake.
24 A. Yes, ma'am.
25 Q. Okay. The jury who is selected here, based on the
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1 evidence, decides whether that man over there lives or dies.
2 A. Yes, ma'am.
3 Q. It's that serious. So I want to ask you if you can
4 honestly follow the process?
5 A. Yes, ma'am.
6 Q. Okay. Now there are two parts of a trial. Guilty or
7 not guilty. The first part is guilt or innocence. Okay? Now
8 I believe you told me if I don't prove to you beyond a
9 reasonable doubt the elements in the indictment, you could find
10 a defendant not guilty of Capital Murder.
11 A. Yes, ma'am.
12 Q. Is that true?
13 A. That's true.
14 Q. And is what I'm asking you your honest feelings today?
15 A. Yes, ma'am.
16 Q. Okay. And I know I'm asking it quick, but I want
17 whatever is your honest feelings. Okay?
18 A. Okay.
19 Q. And I want to know if you can follow the law. Okay?
20 Because in order to sit as a juror, you have to be able to
21 honestly follow this process.
22 A. Okay.
23 Q. So if you found somebody not guilty, the trial is
24 over, right?
25 A. Right.
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1 Q. We go home.
2 All right. If you found -- if I proved to you
3 beyond a reasonable doubt the elements of the indictment, could
4 you find someone guilty of Capital Murder?
5 A. Yes, ma'am.
6 Q. If you find someone guilty, you move on to punishment.
7 Now in order to consider the full penalty range
8 of life without parole or the death penalty -- and you've told
9 me they are both stiff sentences, right?
10 A. Right.
11 Q. Would you consider them both?
12 A. I would.
13 Q. You can't have made up your mind --
14 A. No.
15 Q. -- upon a finding because that's only half the trial.
16 Am I making sense?
17 A. Yes, ma'am.
18 Q. Now there is not going to be any good kind of Capital
19 Murder. There will never be self-defense if you found somebody
20 guilty of Capital Murder.
21 A. Yes.
22 Q. There will be no justification or excuse, and the
23 facts will be awful. Okay?
24 A. Yes, ma'am.
25 Q. Can you keep an open mind at that point?
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1 A. Yes, ma'am.
2 Q. All right. So here are the principles for handling a
3 punishment phase. And I'm going to go over them. Right after
4 a guilty verdict, before any punishment evidence is presented,
5 you cannot have made up your mind as to what's going to happen.
6 Okay?
7 A. Okay.
8 Q. It wouldn't be fair to the State or the Defendant,
9 would it?
10 A. No.
11 Q. Okay. Because some people say, once I find someone
12 guilty of Capital Murder, I'm automatically going to give them
13 the death penalty. Or I'm automatically going to give them
14 life without parole. Is that you, or could you listen to the
15 evidence?
16 A. I could listen to the evidence.
17 Q. Okay. You can't have made up your mind. You have
18 to -- you shall consider guilt/innocence evidence, but you must
19 be able to consider any and all punishment evidence as well.
20 Okay?
21 A. Okay.
22 Q. In order to consider all the evidence -- it doesn't
23 say some. It says all the evidence, right?
24 A. Right.
25 Q. That means the trial has to be concluded, right?
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1 A. Right.
2 Q. You can't make up your mind in the middle.
3 A. No.
4 Q. All right. In order to consider all the evidence, you
5 have to keep an open mind.
6 Each question -- you may get one or more
7 questions, depending on how you answer, because it is not an up
8 or down vote for life or death. You have to answer a question
9 or questions. So I'm going to talk to you about what those
10 are.
11 A. Okay.
12 Q. Each question is independent of the verdict. Each
13 question is independent of each other. It's based on the
14 evidence. Okay?
15 A. Okay.
16 Q. And each question is based only on the evidence
17 presented to you.
18 A. Okay.
19 Q. So let's talk about what the rules say. You're going
20 to get an instruction first. So you're telling me if you found
21 somebody guilty of Capital Murder, you're keeping an open mind?
22 A. Yes, ma'am.
23 Q. You don't have any feelings one way or another about a
24 sentence?
25 A. No.
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1 Q. Death or life without parole?
2 A. No.
3 Q. All right. Otherwise, it isn't fair to the State or
4 defense. Is that accurate?
5 A. Yes, ma'am.
6 Q. In deliberating on issues submitted you shall consider
7 all evidence admitted at the guilt/innocence stage and the
8 punishment stage, including evidence of the Defendant's
9 background or character or the circumstances of the offense
10 that militates for or mitigate against the imposition of the
11 death penalty.
12 It says shall consider all evidence, right?
13 A. Yes, ma'am.
14 Q. At both phases, guilt/innocence and punishment, right?
15 A. Yes, ma'am.
16 Q. Including Defendant's background and character. Will
17 you consider all evidence?
18 A. Yes, ma'am.
19 Q. Guilt/innocence and punishment?
20 A. Yes, ma'am.
21 Q. Will you make up your mind before the evidence is in?
22 A. No, ma'am.
23 Q. Okay. Let me go a little further. Okay? Now -- and
24 sometimes wouldn't you want to know what led somebody to a
25 particular situation in life? Wouldn't you want to know why
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1 something happened at times?
2 A. Everyone is curious, but that doesn't necessarily mean
3 anything further than that.
4 Q. No. But the Defendant's character and background, you
5 would consider?
6 A. Yes.
7 Q. And you will follow that instruction?
8 A. Yes.
9 Q. Let's go a little further. Okay? So you have to
10 consider all the evidence, guilt/innocence and punishment, and
11 then you get to the first question. It's the future danger
12 issue. Special Issue No. 1. Okay. Now I have to prove this
13 to you. Okay? Now you haven't -- he's a guilty capital
14 murderer, right?
15 A. Right.
16 Q. You haven't made up your mind at that time, correct,
17 about punishment?
18 A. No. About punishment, no.
19 Q. Sorry. Prayers have gotten answered because I'm
20 losing my voice. I still have a sense of humor, Ms. Lee.
21 Okay. So you made up your mind about
22 guilt/innocence but not punishment. Is that fair?
23 A. Fair.
24 Q. Okay. First Special Issue. Do you find from the
25 evidence beyond a reasonable doubt that there is a probability
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1 that the Defendant would commit criminal acts of violence that
2 would constitute a continuing threat to society? Okay?
3 A. Okay.
4 Q. All right. Now I have to prove to you beyond a
5 reasonable doubt that there is a probability that the Defendant
6 would commit criminal acts of violence that would constitute a
7 continuing threat to society. All right? I'm predicting
8 future danger by showing you evidence. Okay?
9 A. Okay.
10 Q. Some people say, oh, I can never do that. Could you
11 honestly answer that question based on the evidence?
12 A. Yes.
13 Q. I have the burden of proof. Would you hold me to my
14 burden, beyond a reasonable doubt, to show you there is a
15 probability that the Defendant would commit criminal acts of
16 violence that will constitute a continuing threat to society?
17 A. Yes.
18 Q. Okay. And if I didn't show you that, could you answer
19 it no?
20 A. I could.
21 Q. Okay. In other words, some people say, once I convict
22 someone of Capital Murder, I'm automatically going to answer
23 that question yes. They have got to be a future danger.
24 Can you agree with me that some people can commit
25 Capital Murder and not be a future danger?
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1 A. Yes, ma'am.
2 Q. Okay. So I want to keep going. I have to prove to
3 you beyond a reasonable doubt that there is a probability that
4 the Defendant would commit criminal acts of violence that would
5 constitute a continuing threat to society. Now probability,
6 under the law, means more than possibility. More than a
7 possibility.
8 A. Right.
9 Q. Okay. Could you agree with that?
10 A. Definitely.
11 Q. To you is it more likely than not a probability?
12 A. Probability is more likely, yes.
13 Q. Okay. It's not just a possibility?
14 A. No.
15 Q. Okay. So I have to prove to you the probability the
16 Defendant would commit criminal acts, plural. To you does that
17 mean more than one?
18 A. Yes.
19 Q. Acts of violence that would constitute a continuing
20 threat to society.
21 Let's go a little further. What is society?
22 Society is limited to but -- I'm sorry. Is not limited to but
23 it includes prison. Let me tell you why. Because if someone
24 was convicted of Capital Murder, there is only two possible
25 penalties. Life without parole or the death penalty. Right?
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1 A. Right.
2 Q. So they are going to be in prison --
3 A. Right.
4 Q. -- awaiting execution or living out the rest of their
5 earthly life, right?
6 A. Right.
7 Q. All right. Now society has to include prison then.
8 Am I making sense?
9 A. Yes, ma'am.
10 Q. Now it's kind of -- I'm going to tell you what it
11 focuses on in a minute. But in your mind can a city be a
12 little society?
13 A. Yes, ma'am.
14 Q. Could a courthouse?
15 A. Yes.
16 Q. Could a workplace?
17 A. Yes, ma'am.
18 Q. Could a school?
19 A. Yes.
20 Q. And could a jail or prison?
21 A. Yes.
22 Q. Okay. Do you believe that people in jail, the
23 prisoners, other inmates, have a right to be safe from each
24 other?
25 A. Yes.
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1 Q. Do you believe the prison staff, chaplain, ministry,
2 medical have a right to be safe?
3 A. Yes.
4 Q. Do you believe visitors have a right to be safe?
5 A. Yes.
6 Q. So what Special Issue future danger is focusing on is
7 the character for violence of a particular individual, not the
8 quantity or quality of institutional restraints put on them.
9 Okay? This Special Issue, predicting future danger, focuses
10 upon the internal restraints of the individual, not merely the
11 external restraints of jail or prison. Am I making sense?
12 A. Yes, ma'am.
13 Q. Okay. So let's go back to the grid. Okay. So if I
14 prove to you beyond a reasonable doubt that there is a
15 probability that the Defendant would commit a criminal act of
16 violence -- and let me go to criminal acts of violence real
17 fast. I did not answer that. I'm getting a little slower
18 here.
19 Criminal acts of violence can be violence against
20 property or violence against people. Okay?
21 A. Okay.
22 Q. Can you consider both to be criminal acts of violence?
23 A. Yes.
24 Q. All right.
25 MS. YENNE: Let's go back to Special Issue,
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1 please, real fast, and then the grid. Special Issue No. 1.
2 Q. Okay. So you can answer this question based on all
3 evidence, guilt/innocence or punishment, Special Issue No. 1.
4 And you have to -- if I prove to you beyond a reasonable doubt
5 that there is a probability the Defendant would commit criminal
6 acts of violence that will constitute a continuing threat to
7 society, can you answer that yes?
8 A. Yes.
9 Q. If I don't prove it to you, even though he's a guilty
10 capital murderer, can you answer it no?
11 A. I can.
12 Q. Okay. Now what is a continuing threat to society to
13 you? What does continuing mean?
14 A. Ongoing.
15 Q. Okay. So let me ask this. So you can honestly answer
16 based on the evidence -- he's a guilty capital murderer. And
17 if I don't prove to you beyond a reasonable doubt that there is
18 a probability the Defendant would commit criminal acts of
19 violence that would constitute a continuing threat to society,
20 you could answer that no, right?
21 A. I can.
22 Q. Okay. So you haven't made your mind up on a
23 conviction, right?
24 A. Right.
25 Q. You could keep an open mind and you could answer
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1 Special Issue No. 1. I either prove it to you or not, right?
2 A. That's right.
3 Q. Beyond a reasonable doubt. Because some people say,
4 the minute I convict someone of Capital Murder, I'm going to
5 answer Special Issue No. 1 yes. They have got to be a future
6 danger. Is that you, or will you hold me to my burden?
7 A. You will be held to your burden.
8 Q. Okay. Now to answer yes, this must be unanimous. If
9 it's proven to the jury beyond a reasonable doubt and they
10 answer yes to that, that there is a probability the Defendant
11 will commit criminal acts of violence that will constitute a
12 continuing threat to society, it has to be unanimous because
13 that's the road to the death penalty. Okay?
14 A. Okay.
15 Q. Now you told me you can answer no if I don't prove it
16 to you, Special Issue No. 1.
17 A. Right.
18 Q. No requires ten or more jurors and then the Defendant
19 will be sentenced to life without parole. Okay?
20 A. Okay.
21 Q. And the trial would end. You can answer either way
22 based on the evidence. Is that a fair statement?
23 A. That's fair.
24 Q. Okay. You can't -- now at this point you haven't gone
25 through the whole punishment stage. So let's say you found him
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1 guilty of Capital Murder and found him to be a future danger.
2 A. Okay.
3 Q. You still cannot have made up your mind on death
4 penalty or life without parole. Can you still keep an open
5 mind --
6 A. Yes.
7 Q. -- that both could still be an appropriate penalty?
8 A. Right.
9 Q. Because the legislature has a built-in safety valve to
10 spare someone's life. So, Ms. Lee, do you believe there should
11 be a mechanism to spare someone's life?
12 A. Yes.
13 Q. Okay. The mitigation issue, Special Issue No. 2. You
14 must be able to consider and give effect to mitigation. In
15 other words, is there a reason to spare someone's life? We're
16 talking about killing somebody here. So shouldn't there be
17 Special Issue No. 2 to see if there is a reason somebody should
18 be spared?
19 A. Yes.
20 Q. All right. So I'm going to talk to you about what
21 mitigation is. Okay. I'm going to go to Special Issue No. 2
22 first. All right. Now I had the burden on Special Issue
23 No. 1. You've already found him to be a guilty, guilty, guilty
24 Capital Murderer. No excuse, no self-defense. Because if it
25 was self-defense, he would have to be acquitted, right?
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1 A. Right.
2 Q. No excuse, no justification, no defense of property.
3 Cold-blooded, unprovoked killing. And you've now found him to
4 be a future danger. You've answered yes, along with the rest
5 of the jury, to Special Issue No. 1. Can you still keep an
6 open mind and consider the next issue?
7 A. Yes.
8 Q. Okay. Special Issue No. 2 has no burden. Neither
9 party has a burden of proof. Okay?
10 A. Okay.
11 Q. Mitigation can come to you during the course of the
12 trial, but you have to be able to consider every piece of
13 evidence. Consider and give effect to. Now nobody's defined
14 what "give effect to" means, but let's talk about it in a
15 minute.
16 Special Issue No. 2. Whether taking into
17 consideration all of evidence -- doesn't say some, does it?
18 A. No.
19 Q. All the evidence, including the circumstances of the
20 offense, the Defendant's character and background, and the
21 personal moral culpability of the Defendant, there is a
22 sufficient mitigating circumstance or circumstances to warrant
23 that a sentence of life imprisonment without parole rather than
24 a death sentence be imposed. That's a good issue, isn't it?
25 A. Yes, ma'am.
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1 Q. It can just be somebody wanting to spare somebody's
2 life. We'll talk about that.
3 A. Okay.
4 Q. So I want to know -- you haven't made up your mind
5 even though you've found him to be a future danger. Can you
6 answer Special Issue No. 2 based on the evidence?
7 A. Yes, ma'am.
8 Q. Neither party, the State or the defense, has a burden.
9 A. Yes, ma'am.
10 Q. Would you hold either of us to a burden?
11 A. No.
12 Q. Okay. All right. It says all the evidence. The
13 circumstances of the offense, the Defendant's character and
14 background, personal moral culpability.
15 So let's find out what mitigation means.
16 Mitigating evidence is evidence that a juror might regard as
17 reducing the Defendant's moral blameworthiness. I'm going to
18 explain that in a minute. Okay?
19 MS. MALLON: Your Honor, we would object to this
20 slide under the Eighth Amendment of the Constitution, Eddings
21 versus Oklahoma, as unconstitutionally limiting mitigation.
22 Also, that it misstates the law and gives the juror an
23 incorrect definition of what mitigation is.
24 THE COURT: Overruled.
25 Q. (BY MS. YENNE) Okay. Evidence that a juror might --
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1 it doesn't have to, right? Might regard as reducing the
2 Defendant's moral blameworthiness. Not his guilt. Lessening
3 his blame, not his guilt.
4 In other words, let me give you an example. Have
5 you ever seen a child that you just can't believe how the
6 parents treat that child? How they never had a chance in their
7 life, they were abused, nobody ever gave a darn about them
8 their whole life? You think, oh, my gosh, I wish a relative
9 would step in or the State and help that kid because the die is
10 cast. The road is paved at times for that kid. They never had
11 a chance. They were treated so horribly. Have you ever seen
12 that, Ms. Lee?
13 A. I don't --
14 Q. You haven't seen it?
15 A. No, I really haven't.
16 Q. Okay. Let's go a little further. Can you think of a
17 circumstance where you look and say, that person never had a
18 chance in life or the parents -- raised by two very limited
19 parents, abusive parents, alcoholics, drinkers, never
20 encouraged them, never helped them to where they might have had
21 less of a chance in life than somebody else?
22 A. Yes.
23 Q. Is that fair? Something that might lessen that
24 person's blameworthiness. Not their guilt. Am I making sense?
25 A. Yes.
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1 Q. Not their responsibility. A reason to spare -- a
2 sufficient reason to spare their life. Am I making sense?
3 A. Yes.
4 Q. You know, to me, I would want to know what led
5 somebody to that act. I'd want to know everything. Do you
6 feel that way?
7 A. Yes.
8 Q. Okay. Is it important to you to know the whole set of
9 circumstances in a Capital Murder?
10 A. Yes.
11 Q. Before you would sentence someone to life without
12 parole or death?
13 A. Yes.
14 Q. Okay. Let's go a little further. What is mitigation?
15 Now a jury -- a juror has to be able to consider and give
16 effect to. It doesn't mean you have to find it. Now let me
17 level with you. There will always be mitigation in every case,
18 something that will always lessen someone's blame. But it may
19 not be sufficient to warrant life without parole as opposed to
20 the death penalty. Am I making sense?
21 A. Yes.
22 Q. All right. In other words, there will always --
23 somebody will always have done something nice for someone in
24 their life. Am I making sense? We would hope.
25 A. We would, yes.
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1 Q. Okay. Somebody may have always been in the college of
2 hard knocks. Do you think no bad experience has ever happened
3 to anybody?
4 A. No.
5 Q. In other words, everybody has had some hard roads to
6 walk, right?
7 A. Right.
8 Q. Everybody has done something nice, right?
9 A. Right.
10 Q. It just depends on if the jury considers -- finds
11 something to be sufficiently mitigating to lessen the blame to
12 warrant life without parole versus the death penalty. Am I
13 making sense?
14 A. Yes.
15 Q. So you have to be able to consider and give effect to.
16 Now nobody defines "give effect to," but I would suggest to you
17 that consider means more than where I'm going for lunch today,
18 right?
19 A. Yes.
20 Q. This is serious business, isn't it?
21 A. Right.
22 Q. Would you seriously evaluate everything before you?
23 A. Yes.
24 Q. Every piece of evidence that comes in?
25 A. Yes.
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1 Q. And when they say "give effect to," that doesn't mean
2 you have to find it. But serious, serious consideration.
3 A. Yes.
4 Q. All right. Now what one juror thinks is mitigation,
5 another may not. Now mitigation is something to lessen the
6 blame, not the guilt. Am I making sense?
7 A. Yes.
8 Q. All right. And it doesn't mean that it's
9 sufficiently -- it's sufficient. I'm going to talk to you in a
10 minute. Youth could be mitigating -- somebody committing a
11 crime at 18 or something, you know -- for one juror. It may
12 not be for another. Old age could be something that lessens
13 someone's blame. Child abuse, physical or sexual injuries
14 during childhood, a good work history, drug abuse, drug
15 addiction, acts of kindness for others, alcohol abuse, low IQ,
16 low intellectual functioning, drug abuse, drug addiction,
17 family breakup, single parent home, intellectual issues,
18 poverty, exposure to chemicals, exposure to poisons, exposure
19 to toxins, toxic material, toxic mold, mental retardation,
20 desperation. Okay? Or remember the causation issue? If
21 somebody is only, in your mind, partially responsible. Am I
22 making sense?
23 A. Yes.
24 Q. Okay. And it could also be mercy. Let me ask you a
25 question. I mean, we're talking about killing somebody here.
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1 A. Yes.
2 Q. It's about as serious as it can be, right?
3 A. Yes.
4 Q. Okay. You want -- you in your own questionnaire said,
5 I want to be able to live with it?
6 A. Right.
7 Q. A jury should be able to show mercy if they want to,
8 shouldn't they?
9 A. Yes.
10 Q. Okay. In this type of case. So any piece of evidence
11 that comes in, you have to consider and give effect to, whether
12 you find it or not. Am I making sense?
13 A. Yes, ma'am.
14 Q. Can you honestly do that?
15 A. Yes.
16 Q. Okay. Let me go a little further. Let's go back to
17 the Special Issue. Okay? Remember, there is no burden of
18 proof. So could you honestly answer that question based on the
19 evidence, whether taking into consideration all of the
20 evidence -- remember, all of it -- including the circumstances
21 of the offense, the Defendant's character and background, and
22 the personal moral culpability of the Defendant, there is a
23 sufficient mitigating circumstance? Remember, it has to be
24 sufficient.
25 A. Right.
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1 Q. And by the way, that list is not exhaustive. It could
2 be anything that comes in trial to you.
3 A. Okay.
4 Q. Okay. So you're going to take into consideration all
5 the evidence, including the circumstances of the offense,
6 Defendant's character and background, and the personal moral
7 culpability of the Defendant, there is a sufficient mitigating
8 circumstance or circumstances to warrant that a sentence of
9 life imprisonment without parole rather than a death sentence
10 be imposed. Is that an important Special Issue?
11 A. Yes, it is.
12 Q. Okay. If there is a sufficient mitigating
13 circumstance -- now you told me you could honestly consider and
14 give effect to.
15 A. Yes.
16 Q. It doesn't mean you have to find it.
17 A. Right.
18 Q. One juror can agree or disagree what's mitigating or
19 not. But you could find it. If you find it, it has to be
20 sufficient to warrant life without parole.
21 A. Yes.
22 Q. Okay. Can you answer that question yes if there is a
23 sufficient mitigating circumstance? It could be just one
24 circumstance. It doesn't have to be two.
25 A. Right.
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1 Q. Could you honestly answer it yes?
2 A. Yes, I can.
3 Q. Knowing that he's a guilty capital murderer -- you've
4 already found him guilty -- he's a future danger, and now
5 you're going to say that there is something to lessen his
6 blame. If there is and you honestly believe there is, can you
7 answer it yes?
8 A. Yes, I can.
9 Q. Okay. If there isn't and you honestly believe --
10 remember, taking into consideration all of the evidence,
11 guilt/innocence and punishment, can you answer it no?
12 A. I can.
13 Q. Okay. Let's go a little further. Let me tell you
14 why. Because remember I told you yes must be unanimous on a
15 future danger?
16 A. Right.
17 Q. Okay. Now you haven't made up your mind. He's a
18 guilty capital murderer. He's a future danger. You said you'd
19 keep an open mind --
20 A. Right.
21 Q. -- to anything that could be mitigating, lessening his
22 blame.
23 A. Right.
24 Q. Is that true?
25 A. Yes, it is.
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1 Q. Okay. So you said you could answer it yes, that you
2 really could find a sufficient mitigating circumstance to spare
3 his life. Can you do that?
4 A. Yes, I can.
5 Q. All right. Yes requires ten or more jurors. And if
6 you found yes, that there was a sufficient mitigating
7 circumstance, the Judge will sentence the Defendant to life
8 without parole. Okay? That's pretty fair, isn't it?
9 A. Yes.
10 Q. If you answer no, it has to be unanimous by the jury,
11 and then the Defendant receives the death penalty. Am I making
12 sense?
13 A. Yes, ma'am.
14 Q. Can you honestly answer -- first of all,
15 guilt/innocence, can you honestly render a decision based on
16 the evidence beyond a reasonable doubt?
17 A. Yes.
18 Q. Once somebody has been found guilty of the worst crime
19 you could ever commit, Capital Murder, can you keep an open
20 mind?
21 A. Yes.
22 Q. Okay. And so you haven't formed an opinion --
23 A. No.
24 Q. -- whether or not he's a future danger yet, right?
25 A. No.
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1 Q. Okay. If I don't prove to you beyond a reasonable
2 doubt that he is a future danger, can you answer that no?
3 A. I can.
4 Q. Okay. If I prove to you that he's a future danger,
5 can you answer it yes?
6 A. I can.
7 Q. Now once he is guilty and a future danger, are you
8 honestly going to keep an open mind, knowing that there could
9 be a death penalty here?
10 A. Yes.
11 Q. And determine whether or not there is something
12 sufficiently mitigating to spare his life?
13 A. Yes, ma'am.
14 Q. Okay. How serious is this to you, Ms. Lee?
15 A. I take it very seriously.
16 Q. Okay. And it's something I should prove to you,
17 shouldn't I?
18 A. Yes, ma'am.
19 Q. Now on the -- now on Special Issue No. 2, remember
20 there is no burden on the mitigation.
21 A. Yes, ma'am.
22 Q. Okay? And you can just decide to give somebody mercy.
23 Do you think that's okay?
24 A. Yes, ma'am.
25 Q. I mean, we're talking about killing somebody here,
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1 right?
2 A. Right.
3 Q. Okay. Nothing minor?
4 A. No.
5 Q. Not at all.
6 A. Nothing to be taken lightly.
7 Q. So let me ask you a question. Are you going to judge
8 this case based on the law and evidence given to you and not
9 emotion?
10 A. Yes.
11 Q. Okay. To me, it would never be more important to
12 judge something based on the law and evidence, right?
13 A. Right.
14 Q. I mean, people can have general views on the death
15 penalty and they are for or against; but they still could
16 follow the law in a case. Is that a fair assessment?
17 A. Yes, ma'am.
18 Q. Are you going to be emotion-driven and decide, well,
19 my feelings are he should get a death penalty or life without
20 parole before all the evidence is concluded?
21 A. No.
22 Q. Would you ever do that?
23 A. No.
24 Q. Okay. So let me go a little further.
25 THE COURT: Eight minutes, for your information.
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1 Q. Okay. Let me go a little further. And you can
2 honestly answer yes if there was sufficient mitigation, even
3 after finding him to be a future danger?
4 A. Yes, I could.
5 Q. Okay. So let me go a little further. When you
6 answered your questionnaire I noticed -- let me go to -- one
7 thing I noticed is that -- page 18, Number 105.
8 Your answer to Number 100. What are your
9 feelings about the death penalty? You said, Necessary but it
10 needs to be used wisely.
11 A. Yes.
12 Q. When we threw these questionnaires at you, you didn't
13 have any information. We threw them at about 200 people. We
14 couldn't give you the information. So now that you understand
15 the process, do you think the process is fair?
16 A. Yes.
17 Q. Okay. Should it be fair?
18 A. Yes.
19 Q. Okay. And are you going to judge this based on the
20 facts of the case and the evidence?
21 A. Yes, ma'am.
22 Q. Okay. Says: What is your best argument against the
23 death penalty? Page 18, Number 104. It is possible for an
24 innocent person to be found guilty.
25 Right?
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1 A. Right.
2 Q. Okay. So let me ask you this. Even if they are a
3 guilty capital murderer, would you keep your mind open and
4 consider all the punishments for them?
5 A. Yes, ma'am.
6 Q. Okay. And then you also put, I am in favor of capital
7 punishment except in a few cases where it may not be
8 appropriate.
9 A. Right.
10 Q. And page 19 you said, I would consider all the
11 penalties provided by law and the facts and the circumstances
12 of a particular case.
13 A. Yes.
14 Q. Okay. Can you be fair, Ms. Lee?
15 A. I try to be fair in all life. I mean, yes.
16 Q. Would you follow the law and the instructions?
17 A. Yes, I would.
18 Q. Okay. So let me go a little further. What that
19 really means, you've told me you won't make up your mind,
20 you'll keep an open mind. Now some jurors have been given
21 hypothetical circumstances. So pretend you're a hypothetical
22 juror on a hypothetical Capital Murder case, not this one.
23 A. Okay.
24 Q. You and the 11 other jurors have found beyond a
25 reasonable doubt the defendant is guilty of capital murder, an
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1 unjustifiable, horrific, non-self-defense crime. No insanity,
2 no self-defense, no victim provocation, no substance abuse.
3 Innocent victim. Okay?
4 A. Okay.
5 Q. You can still keep an open mind and go through the
6 punishment phase?
7 A. Yes, ma'am.
8 Q. Okay. You wouldn't say, oh, my feelings are now he
9 should get a death penalty or not?
10 A. No.
11 Q. Because can you agree with me -- what's missing from
12 that hypothetical? You can't have any feelings form after
13 guilt.
14 A. Right.
15 Q. You have to be able to honestly consider the evidence.
16 A. Yes, ma'am.
17 Q. Can you do that?
18 A. I can.
19 Q. Okay. Let's go a little further. Murder can be a man
20 intentionally killing a man, a man intentionally killing a
21 woman, a woman intentionally killing a woman, a woman
22 intentionally killing a man. Do you make any distinction based
23 on gender, or is murder murder?
24 A. Murder is murder.
25 Q. Let's go a little further. Murder can be a white
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1 person intentionally killing a white person, a white person
2 intentionally killing a black person, a black person
3 intentionally killing a black person, a black person
4 intentionally killing a white person, a Hispanic person
5 intentionally killing a Hispanic person, a Hispanic person
6 intentionally killing a white person. Do you make any
7 distinction based on race or is murder murder?
8 A. No, murder is murder.
9 Q. Okay. Can you judge this case based on the evidence
10 and the law provided to you by the Court?
11 A. Yes, ma'am.
12 Q. Will you honestly keep an open mind and consider and
13 give effect to anything that could lessen the Defendant's
14 blame, mitigation?
15 A. Yes.
16 MS. YENNE: May I have a minute, Judge?
17 Q. Now you had indicated that you had some health
18 problems?
19 A. Yes, ma'am.
20 Q. Okay. What are they?
21 A. A lot of autoimmune things. I have thyroid issues. I
22 have rheumatoid arthritis. I have some diabetes.
23 Q. Okay.
24 A. I have glaucoma.
25 Q. Could you sit fairly on this jury?
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1 A. Yes, ma'am.
2 Q. Okay. There is no health issue that would preclude
3 you from doing that?
4 A. No, ma'am. I have medications. I'm fine.
5 Q. Okay.
6 MS. YENNE: I'll pass the juror.
7 THE COURT: Ms. Mallon?
8 MS. MALLON: Thank you, Your Honor.
9 VOIR DIRE CROSS-EXAMINATION
10 BY MS. MALLON:
11 Q. Ms. Lee, how are you?
12 A. I'm okay. And you?
13 Q. I'm well. Thank you.
14 My name is Kerri Mallon. This is Jay Wooten, and
15 that's Mr. Harris down there.
16 A. Hi.
17 Q. We represent Mr. Harris, and I'm going to ask you a
18 lot of questions as well. And it's probably going to sound
19 like I'm asking the same questions that the State has already
20 asked you; but, you know, there is a lot of law and Ms. Yenne
21 has to get you a lot of information very quickly. So I heard a
22 lot of yes and no's from you, but not a lot of explanations.
23 A. Okay.
24 Q. So what I'm going to do is I'm going to pick your
25 brain as well, and I'm going to probably ask you some more
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1 questions about why.
2 A. All right.
3 Q. Okay? Because we -- you know, like Ms. Yenne said,
4 the stakes don't get any higher than they are right now. You
5 know? Mr. Harris' life is on the line. So it's very important
6 for us and for Mr. Harris that we know how you really, really
7 feel in your heart of hearts.
8 A. Okay.
9 Q. On capital punishment and the death penalty, you know,
10 everybody feels differently about it. You know, and it varies
11 from person to person. And the majority of the people we've
12 had come here to speak to about it are very much in favor of
13 it. And we just want to get your feelings about it. Okay?
14 A. Okay.
15 Q. And, you know, we asked you a bunch of questions
16 without telling you what the law is. But I tend to think --
17 and then -- but we do that on purpose so we get what your
18 feelings are. Okay? Because sometimes after the law is
19 explained to you, jurors feel like they have to change their
20 answers. And I don't want you to feel that way. And I don't
21 want you to feel like you can or cannot change the answers that
22 you already gave Ms. Yenne. Because everybody in this room
23 wants to know how you really feel. Okay?
24 A. Yes, ma'am.
25 Q. Does that make sense?
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1 A. Definitely.
2 Q. Okay. And where you sit right now as a potential
3 juror, you don't have to do anything. You know, there was a
4 lot of as a juror you can't do this and you can't do that and
5 you must do this and you must do that. And that's true as a
6 juror; but where you are right now, the only thing you have to
7 do is tell us the truth. Okay?
8 A. Yes, ma'am.
9 Q. And if you disagree with something, we want to know.
10 Does that make sense?
11 A. Yes, ma'am.
12 Q. And I don't want you to think anybody in this room,
13 the State, the defense, the Judge, are going to be disappointed
14 in you, think badly of you, nothing. Nothing like that at all.
15 Even if your answers change, if your feelings change, we just
16 want to know honestly how you feel in your heart of hearts.
17 Does that make sense?
18 A. Yes, ma'am.
19 Q. And I think you're in a very difficult position
20 because you come in here and you're told a whole bunch of new
21 things about capital punishment law -- and I promise you most
22 lawyers don't know capital punishment law. It's a very
23 specialized area of law. And so you come in here, you've
24 answered these questions, and now we're throwing a bunch of law
25 at you and asking you, you can be fair, can't you? You can
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1 follow the law, can't you? And I think in that situation it
2 would be very difficult to say, you know what? I don't know
3 that I can. You know, I don't know that I can do that. But if
4 that's how you honestly feel, I am begging you to please tell
5 me. Okay?
6 A. Okay.
7 Q. Because I know that there are some cases, even as a
8 defense attorney, I would not be able to sit as a juror on.
9 Because what they are accused of would be so upsetting to me
10 and so bad to me that I, no matter what the law is -- and I
11 would like to think I could be fair and I would try to be fair;
12 but sitting over there in that jury box, I don't know that I
13 could. Does that make sense?
14 A. Yes, ma'am.
15 Q. Okay. A lot of people tell us that they could never
16 be a juror on a child sexual assault case, you know, because if
17 someone is accused of that, there has got to be something there
18 and I just could not -- I couldn't do it. I couldn't be fair
19 to the person accused of that. Does that make sense?
20 A. Yes, ma'am. It does.
21 Q. And frankly, a lot of people feel that way about
22 Capital Murder. You know, they think if someone has been
23 indicted for Capital Murder, there must be something there.
24 How do you feel about that?
25 A. No, I don't really feel that way. I feel like that
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1 it's an indictment. It's an alleged offense. Again, I think
2 someone needs to be where they can look at the evidence and
3 make the decision based on our society here. I mean, our
4 judicial system is the best; and I would hope that everybody
5 that would have a chance to do something would try to make it
6 the best they could do.
7 Q. So would I. I think we all would. You know, we've
8 all heard on the news about people on death row who have later
9 been found to be, you know, not guilty now that DNA is here and
10 all that good stuff.
11 A. Right.
12 Q. So I appreciate that answer. I really do. And I
13 believe you. I'm just asking you if you honestly feel
14 differently about something, if you'll tell me.
15 A. Oh, I'll tell you. Yeah.
16 Q. Okay. I want to ask you a few things about your
17 questionnaire.
18 A. Okay.
19 Q. And some of these are just curiosity questions.
20 A. Not a problem.
21 Q. And some of them are actually about the law.
22 On page 3 you said you had written a letter to
23 the editor. What was that about?
24 A. Oh, that was some -- actually, traffic issues and
25 stuff in the neighborhood.
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1 Q. Okay. I probably get 25, 30 e-mails a day asking me
2 to send a letter to my Senator and send a letter to the
3 President.
4 A. Well, I have sent a letter to the Senator or President
5 on a couple of issues; but it's mostly economics, et cetera.
6 Q. I think I probably do that daily, honestly. Because
7 now they make it so easy. All you have to do is hit a button
8 and it goes.
9 A. Right.
10 Q. Let's see here. Okay. You talked a little bit about
11 your health problems.
12 A. Yes, ma'am.
13 Q. And on page 4 we asked you if you had any health
14 problems that might affect your service as a juror and you said
15 yes.
16 A. Well, only if -- you know, I have the medication, as I
17 said, for all of these. And there is -- I'm on maintenance.
18 If I had to do extraneous walking, et cetera, I would have some
19 issues with the arthritis. With sugar issues, I have some
20 issues there. But as long as I do what I'm supposed to do, I
21 should have no issues.
22 Q. Okay. So sitting for a long period of time is okay?
23 A. That's what I do every day.
24 Q. Me, too. Okay. I just wanted to make sure because I
25 don't want you to feel like -- I certainly don't want to risk
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1 your health.
2 A. No.
3 Q. On page 5 we asked you if there was any reason that
4 you will be unable to serve from October 23rd to November 22nd.
5 And you said, I don't think so. I just want to make sure that
6 hasn't changed.
7 A. No. I haven't any issue. Right now my husband has a
8 knee surgery scheduled for the 1st of December. That's the
9 only thing that I'm aware of.
10 Q. Okay. You also told us that you had served as a juror
11 twice?
12 A. Yes, ma'am.
13 Q. How was that experience for you?
14 A. It was educational both times. I was pretty pleased
15 with the panels that I sat on in the sense that the people I
16 served with did try to take in effect only the facts that were
17 presented in the courtroom itself and they also tried to be
18 very fair and tried to examine it from both sides. So I was --
19 it actually left a good impression.
20 Q. Good, good. That's nice to hear. That's one thing I
21 do not know is what goes on in a jury room. And I would love
22 to know, but I don't. I've never been -- I've never -- and it
23 would be no surprise I've never been selected, but I've only
24 been called once. I want to be on a jury so bad, but I can't
25 get that. It just hasn't happened.
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1 A. I need to swap names with you. I get called often.
2 Q. Yeah, it looks like it. It looks like it.
3 On page 8 we asked you if you ever had a member
4 of your family accused of a criminal action. You said your
5 brother.
6 A. Yes, ma'am.
7 Q. Was that 40 years ago?
8 A. At least. I will have to be honest with you. I was
9 probably between high school and college at the time. So I
10 don't know much of the facts that went on in the household.
11 And I haven't seen my brother in 30 years.
12 Q. Okay. Was he treated fairly? Do you know?
13 A. As far as I know.
14 Q. Okay. I just wonder if that left you with a bad taste
15 in your mouth, anything about that?
16 A. No, not really.
17 Q. Okay.
18 A. I didn't even really remember it until you asked that
19 question.
20 Q. Okay. And, you know, we just want to make sure and
21 see what it's all about.
22 A. Right. I understand.
23 Q. On page 12 we asked you Question No. 65: What do you
24 think are the reasons that people commit most of the violent
25 crimes in our society? And you said, No family structure, not
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1 taught how to handle conflict. Tell me what you were thinking
2 when you wrote that down.
3 A. I guess it's my opinion of the society that we live in
4 now is because we don't have a good family structure. You
5 don't have both parents in the home. They are not taught how
6 to behave. You know, they are not taught individual
7 accountability, own up to your own actions, et cetera. And
8 they don't know how to handle a conflict in a sense that, you
9 know, fighting with your brothers and sisters kind of gets you
10 where you can handle it in school, which can get you where you
11 can handle it in life, et cetera.
12 Q. So if you don't have a good example from a parent --
13 A. It's -- you know, I know that there are times that
14 people overcome their circumstances. Someone in the same
15 circumstances turns out different than the one that's with
16 them. So there is a lot of individuality into that; but you
17 start off with a little more chance, I guess, if you have that
18 structure.
19 Q. And I would say I agree with you. On page 14,
20 Question No. 80, we asked you if you knew any attorneys,
21 investigators, et cetera. And you said that you know lawyers
22 and bailiffs. Anybody here in town?
23 A. No.
24 Q. Okay.
25 A. Mostly out in Harris County.
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1 Q. Okay. Anybody you're real close to?
2 A. No.
3 Q. Okay. On Page No. 15 on Question No. 85 we asked you:
4 What would you change about the system if you could? And you
5 said, Clear, defined, less trivial, more emphasis on serious
6 issues. Tell me about that, please.
7 A. I think that the system as we have it right now is too
8 clogged by the smaller offenses. Not that they can't lead to
9 larger ones, but I think that there should be -- even though
10 there are separation in courts, et cetera, that there needs to
11 be some more emphasis on that. On the victimless, quote
12 unquote, crimes, they need to be handled differently and more
13 expeditiously than others.
14 Q. Sure. Okay. That makes sense to me. That does.
15 Okay. Page 16, Number 91: Do you believe the
16 type of victim or status of the victim should affect the
17 punishment in a criminal case? And you said, No. Violence is
18 not easily untaught. Every individual should be viewed
19 equally. Tell me what you mean by that.
20 A. The crime is the crime. Whether you're a millionaire
21 or whether you're in poverty, the crime is the crime and it
22 should be considered as the facts of the law, not as -- you
23 know.
24 Q. Okay. That makes sense. What about violence is not
25 easily untaught?
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1 A. If you've been reared with the idea that -- you know,
2 even a 2-year-old, if they are not taught how to behave, that's
3 how they are going to behave until they reach somebody who
4 won't give in to them or whatever.
5 Q. Okay.
6 A. And if they are never thought that that's not how you
7 resolve anything, then that's how you solve a problem.
8 Q. Makes sense.
9 On page 17, Question 97: Have you ever known
10 anyone who had a serious drug problem as a result of drug use?
11 And you said, Yes. And the problem was divorce and prison. Do
12 you mind? I know it's a personal question, but do you mind
13 talking about it?
14 A. It was my brother. He was in the Navy during the
15 Vietnam War and did get into drugs. Then he married someone
16 who was also in the drug scene and of course it, you know,
17 divided their family, tore it up. And it, you know, impacted
18 my family as well.
19 Q. Yeah. It's sad.
20 A. It is. And it was difficult to watch. My mother
21 actually turned her grandchildren over to social services to
22 get them out of the situation. So it was hard.
23 Q. Is he doing well now?
24 A. It's -- he's the one I have not heard from in -- so he
25 removed himself from the family. It was not us. I think it
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1 was his idea that we held ourself to a certain accountability
2 and he did not.
3 Q. Okay. Do you think -- so you feel like he was
4 actually addicted to drugs?
5 A. Yes, I do.
6 Q. Okay. That's a big problem in society, it seems?
7 A. It is.
8 Q. And like you were talking about the victims, you know,
9 it hits millionaires.
10 A. Yeah. It's not just the person that has the problem.
11 It's through the outlying family and society around them.
12 Q. Yeah. And now they are saying that a lot of, like,
13 suburban housewives are addicted to painkillers. And it's
14 just -- it affects everybody.
15 A. It does.
16 Q. Okay. Page 18. Now we're going to get to a little
17 more meaty questions.
18 A. Okay.
19 Q. Okay? Question 100 -- and I know Ms. Yenne asked you
20 about this, but -- what are your feelings about the death
21 penalty? And you said, Necessary but needs to be used wisely.
22 So I want to ask you why do you feel it's necessary?
23 A. I actually studied it at one time a long time ago,
24 high school kind of thing. And I did do a little research
25 about why they used it, how we used it in history, et cetera,
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1 and what the benefits and pros and cons were. And actually I
2 ended up more on the side of that it was necessary, it was
3 beneficial; but it had to be used appropriately, wisely.
4 Q. Okay. Number 105: Check one statement that best
5 summarizes your general views about capital punishment, the
6 death penalty. And you said, I'm in favor of capital
7 punishment except in a few cases where it may not be
8 appropriate. That is the one you checked. What were you
9 thinking when you checked that?
10 A. Probably closest to the definition that she was giving
11 with mitigation. You know, that there were circumstances that
12 could lessen the severity of the crime. You know, it shouldn't
13 ever get to the point where somebody is facing that without
14 having been proven beyond doubt; but there is always -- you
15 know, as we've seen in the news, there is chances for errors,
16 et cetera. And I think that it needs to be left to the people
17 that are on that panel to do what they can decide.
18 Q. Okay. I'm not trying to put words into your mouth.
19 A. No.
20 Q. And if I am, please correct me. From that answer you
21 just gave me, it sounds like you lean towards the death penalty
22 versus life without parole.
23 A. I really don't know that I do. It is, you know, a
24 possibility; but also considering punishment as humane or not
25 humane, et cetera, is something that I would like to take into
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1 consideration when I'm asked to decide something like that.
2 Q. Okay.
3 A. And that would have to be laid out in the details.
4 Q. Can you?
5 A. I guess, personally, something would be worse to me
6 than the alternative. And it might be that prison might not be
7 the alternative I would want to do for myself; but then again,
8 I'd have to look at it as to what that person would choose.
9 Q. Okay. Are you saying that you think the death
10 penalty -- and I think that was a question in here somewhere --
11 is more humane than life without parole?
12 A. It could be, yeah, depending upon the personality.
13 Q. Explain that to me.
14 A. There are certain individuals that, I mean, being
15 confined would be more of a burden and would be harder on them
16 than to accept the guilt and go toward the death penalty. I
17 mean, after everything has been exhausted. I don't think that
18 anybody needs to go from A to B without having all the steps in
19 between.
20 Q. You said that, I think -- and again, correct me if I'm
21 wrong -- for you personally you would not want to be in prison.
22 You said something along those lines.
23 A. Right. Confinement might not be -- I'm not saying
24 personally because you can give me a book and I can sit in that
25 corner and I'd be okay all day long.
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1 Q. Me, too.
2 A. But it is something that I would think it would be up
3 to that individual.
4 Q. Okay.
5 A. And I would like to factor that in if I have that
6 information. If I don't, then it's going to have to be just
7 strictly on --
8 Q. Okay. But you're not going to make a decision based
9 on how you feel?
10 A. No.
11 Q. Okay.
12 A. No. I try very hard not to impose my feelings on
13 anyone.
14 Q. Okay. I'm probably going to come back to your
15 questionnaire; but I want to go through the process again,
16 coming from our point of view.
17 A. Okay.
18 Q. Because as you can imagine, it's very different. And
19 like I said, I really want to get your feelings about different
20 things.
21 A. Okay.
22 Q. And like I said, I think it's hard to be in that
23 chair. And I think it's difficult -- when, you know, you want
24 to be a good juror, you want to say you can follow the law, I
25 think it would be difficult to say, I can't. Especially in
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1 front of the Judge and, you know, all the lawyers in here. But
2 if that is how you feel, I'm asking you to tell me. Okay?
3 A. Right.
4 Q. And the other thing about being in that chair versus
5 being in that chair over there as a juror is, you know, we
6 can't really -- well, we can't tell you about the facts of the
7 case, obviously. But it's important for us to really paint a
8 picture for you of how it would be in that chair versus being
9 in your chair. Does that make sense?
10 A. Yes.
11 Q. Because once you are over there, you are obligated to
12 follow the law. And what I don't want to happen is someone who
13 says they can and then they get over there and realize they
14 cannot. Does that make sense?
15 A. Yes, ma'am.
16 Q. And so, you know, we talk about Capital Murder and
17 death and the death penalty, you know; but it's much worse than
18 that. Does that make sense?
19 A. Yes, ma'am.
20 Q. Okay.
21 A. It does.
22 Q. I was thinking, you know, we try to put it in context
23 for you so you can really see it and picture yourself over
24 there and see how you would honestly answer and how you would
25 honestly feel.
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1 I'll give you just an example in my life. I go
2 to the gym and I have a personal trainer. And clearly you
3 can't tell, but I do go. And the first time I met with my
4 trainer he said, How many times a week do you want to workout?
5 And I was like, Five. Five days no matter what. He's like,
6 Okay. Well, what time do you want to come? And I was like,
7 Well, you know, I need to come in the morning before work. So
8 how about 5:00 a.m.? And he looked at me and he's like, Five
9 days a week at 5:00 a.m.? I was like, Yeah. I can do that.
10 He was like, Okay. I went to bed that night. The next morning
11 my alarm went off at 4:15 and I was like, Oh, no. This is not
12 going to work for me. Does that make sense?
13 A. Yes.
14 Q. It sounded good.
15 A. Abstract.
16 Q. It sounded like something I could do.
17 A. Right.
18 Q. But once I was actually there, I was like, Oh, no,
19 this isn't going to work for me.
20 A. Right.
21 Q. So I want to put you in the context of being a juror
22 over there and just see how you feel.
23 A. Okay.
24 Q. Okay? So I'm going to give you a hypothetical. It's
25 not about this case. It's about a completely different case.
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1 It's a made-up case. Okay?
2 A. Okay.
3 Q. And you know, because you spent a lot of time talking
4 to the State about this, that there are two penalties in a
5 Capital Murder case, right?
6 A. Right.
7 Q. What are they?
8 A. Life without parole or death penalty.
9 Q. Okay. Always. There is always two penalties. Life
10 without parole and death penalty. And I'm not trying to tell
11 you there aren't. There are. Okay?
12 A. Right.
13 Q. So I don't want you to think I am trying to tell you
14 there are not because there are.
15 So I want you to assume with me that you have
16 been selected as a juror on a Capital Murder case. Okay?
17 A. Okay.
18 Q. And you and 11 other jurors have found beyond a
19 reasonable doubt that this person is guilty of Capital Murder.
20 A. Okay.
21 Q. Okay? Now to be Capital Murder, as the State
22 explained to you, it has to be an intentional killing plus some
23 other crime.
24 A. Right.
25 Q. The example Ms. Yenne gave was burglary or robbery.
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1 A. Right.
2 Q. Okay. It's an intentional killing in the course of a
3 burglary or robbery. Intentional means conscious desire to
4 kill.
5 A. Right.
6 Q. Are you with me?
7 A. Uh-huh.
8 Q. Okay. You and 11 other jurors have also decided
9 beyond a reasonable doubt that it was not self-defense, it was
10 not in defense of a third party, it was not done in defense of
11 property, the killer was not provoked by the victim, it wasn't
12 a mistake, and the defendant was not insane at the time of the
13 murder.
14 A. Okay.
15 Q. Are you with me?
16 A. Uh-huh.
17 Q. So I want to know in that situation what are your
18 feelings about the death penalty for that guilty murderer?
19 A. Well, it would definitely be on the table.
20 Q. Okay.
21 A. The other two issues would still have to be decided.
22 Q. Okay.
23 A. You know, but it is definitely on the table.
24 Q. Okay. So in that situation it's not a definite for
25 you?
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1 A. No.
2 Q. Okay.
3 A. No.
4 Q. Because I will tell you, Ms. Lee, there are a lot of
5 people who are that way. You know? And, you know, it's not
6 something we take lightly. But a lot of people tell us if you
7 tell me he intentionally killed someone during the course of
8 another felony, it's always going to be a death sentence for
9 me.
10 A. No. It's -- as I said, it's on the table but it's not
11 decided.
12 Q. Okay. All right. Now I want to talk to you about the
13 first Special Issue, and I have it up here. Special Issue
14 No. 1.
15 A. Okay.
16 Q. And I know you've read it already. But from the
17 evidence, do you find beyond a reasonable doubt that there is a
18 probability that the Defendant would commit criminal acts of
19 violence that would constitute a continuing threat to society?
20 Now in Texas the death penalty is never required.
21 Okay? It's never ever required. Not in this case, the worst
22 case you could think of. Okay?
23 A. Okay.
24 Q. It's never required. It only happens if we go through
25 these two Special Issues.
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1 A. Okay.
2 Q. Does that make sense?
3 A. Yes, ma'am.
4 Q. Okay. And the State has to prove every element in
5 that question beyond a reasonable doubt.
6 A. Okay.
7 Q. So they have to prove to you what's going to happen in
8 the future. Does that make sense?
9 A. Right.
10 Q. Do you think that's a difficult burden?
11 A. Yes, it is.
12 Q. Okay. Do you think it should be?
13 A. Yes.
14 Q. Okay. Good. And if you'll look with me, you know, it
15 doesn't say what might happen, what could happen, what I'm
16 afraid will happen. I mean, they have to prove this to you
17 without any reasonable doubt.
18 A. Right.
19 Q. And because this -- essentially, you know, as
20 Ms. Yenne says, this question puts you on the road to the death
21 penalty.
22 A. Right.
23 Q. Right?
24 A. Uh-huh.
25 Q. So would you agree with me that it should be taken
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1 literally?
2 A. Right.
3 Q. They have to prove to you that he's going to be a
4 future danger.
5 A. Right. With the word probability in there.
6 Q. Correct. More likely than not.
7 A. Right.
8 Q. Right? And Ms. Yenne talked to you about society and
9 society is anything. But in reality, if a person is convicted
10 of a Capital Murder, whether they get a life without parole
11 sentence or they are sentenced to death, where are they going
12 to be?
13 A. In prison.
14 Q. Correct. Okay. And Ms. Yenne told you that it does
15 focus on the internal restraint on an individual, but you can
16 also take into consideration the external restraint as well.
17 A. Right.
18 Q. Okay? And let me ask you. If you had the opportunity
19 to change the law and take that away, would you take that
20 Special Issue away? Would you?
21 A. No.
22 Q. Okay. Why not?
23 A. It makes you ask that one more question. It makes you
24 go that one more step.
25 Q. Okay. And you think that's important?
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1 A. Yes.
2 Q. Tell me why.
3 A. Because nothing should be ever taken lightly or
4 without looking at issues when you get to this point. I mean,
5 you hold things in your -- the balance in your hand, and you
6 have to be able to consider all the issues.
7 Q. Okay. And the legislature is -- and tell me if you
8 agree with me. You know, they are trying to decide who is
9 going to, I mean, continue to be violent in the future.
10 A. Right.
11 Q. Right? And the caselaw tells us that the death
12 penalty is reserved for those few incorrigibles who cannot be
13 safely contained in the penitentiary. Does that make sense to
14 you?
15 A. Yes.
16 Q. Okay. Now, you know, I have to -- I have to ask
17 you because a lot of times -- you know, Ms. Yenne said a life
18 is on the line; and it absolutely is. It's very, very, very
19 important to me, clearly. But you can't forget that a life has
20 been taken as well.
21 A. Right.
22 Q. So I don't want you to forget that when you're
23 answering these questions because I think that's important for
24 you to remember. And I think, ultimately, that's what jurors
25 have a hard time getting past. Does that make sense?
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1 A. Yes, ma'am.
2 Q. Okay. Again, I want to ask you, you have found
3 someone to be a guilty capital murderer, no reasonable doubt in
4 your mind. Could you honestly ever answer that question no?
5 A. I think I could, you know, depending upon what is put
6 out there. I try to make all decisions based on what is out
7 there. I don't try to -- I come at it with no preconceived
8 ideas.
9 Q. Okay.
10 A. I mean, I haven't been in that position. It's hard
11 for me to take and speculate at this time; but I will try my
12 best to do that, yes.
13 Q. Okay. It sounds like -- and you have some hesitation.
14 A. Well, I think any time you get to this point that you
15 would have some hesitation if you are a thinking individual.
16 Q. Okay.
17 A. I mean, everybody is human. We all have things that
18 we have in our lifestyle, et cetera, that would get you to
19 question things. But, yeah, I really do try to take what --
20 even from the examples that I've had being a juror, I try to
21 take everything -- only what's said in the courtroom and only
22 what's permissible. I try. I mean, I'm human and I do other
23 things but --
24 Q. You're exactly right. I mean, you are. Every juror
25 that sits in that seat is human. You know, they have feelings,
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1 they have experiences, they have values, they have morals that
2 they bring to that chair.
3 A. Yes.
4 Q. And that's why we ask these questions because it can
5 be different for everybody.
6 A. Right.
7 Q. You know? So I want to know if you can tell me what
8 is it that's in your mind or in your heart that says -- that
9 makes you say I'll try instead of --
10 A. Yes or no?
11 Q. Yes, ma'am.
12 A. I guess because I am an intelligent human being -- or
13 I like to think that I am -- and I know that I probably have
14 something in my head that wouldn't be allowable or whatever. I
15 don't know about what it would be because I haven't been put in
16 that position. I haven't had that question asked. So, you
17 know, I'm trying my best to think of different things that
18 might make me lean one to the other. I can't come up with one,
19 but it doesn't mean it's not there.
20 Q. Okay. Let me give you a little more context. Okay?
21 A. Okay.
22 Q. Again, a guilty capital murderer. Okay? And I want
23 to put you in that chair. During the course of a Capital
24 Murder trial you would see and hear really gruesome details.
25 A. Yes, ma'am.
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1 Q. You would see autopsy photos, crime scene photos, hear
2 the scene described in detail, right?
3 A. Right.
4 Q. That's hard to hear.
5 A. Yes, ma'am.
6 Q. And, you know, there is someone's loved one is gone,
7 right?
8 A. Right.
9 Q. So you're probably going to hear how that impacted
10 them as well.
11 A. Right.
12 Q. And so you've heard all that and you've seen all that
13 when you get to this first Special Issue. So they are a guilty
14 capital murderer. You've seen the horrible things that
15 happened. You've seen, you know, the family is very upset.
16 Knowing all that, seeing all that, you and 11 others determined
17 that this person is guilty of Capital Murder, can you ever
18 answer that question no?
19 A. I could.
20 Q. Okay.
21 A. I could.
22 Q. Okay. Now I want to go back to your questionnaire,
23 Ms. Lee.
24 A. Okay.
25 Q. Let's go to page 20, please. That's Question 109.
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1 And we gave you a lot of agree or disagree. The second one
2 down you said, Capital punishment is absolutely justified.
3 Tell me about that.
4 A. Again, it is something that has been proven through
5 time to be both a deterrent -- not necessarily from somebody
6 committing a crime over and over again because, obviously, they
7 can't if they -- but it's also a deterrent in the sense that I
8 think if someone is on the fence, riding it or whatever, and
9 they stop and they think, this is a death penalty state, you
10 know, it gives them reason to stop, reason to think, if they
11 can. Also, it's a deterrent in the sense of just anybody else
12 contemplating something like that. So it is a deterrent.
13 And it is justifiable in the sense that the law
14 is specific. Even going back to biblical times, the law is
15 specific. A life is a life. And if you take a life, then a
16 life is called for.
17 Q. Is that how you feel?
18 A. Again, yes, within -- you know --
19 Q. Okay.
20 A. -- with the reasons that I've explained before.
21 Q. So you feel an eye for an eye?
22 A. Well, yes. To say -- the short answer is yes.
23 Q. Okay.
24 A. I do feel that way. If there is a crime, there is a
25 punishment.
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1 Q. Okay. So to take that one step further, if there is a
2 death, there needs to be another death?
3 A. There needs to be a punishment.
4 Q. Okay.
5 A. Okay?
6 Q. Okay.
7 A. Everything else has to go along with it, the laws, et
8 cetera. I don't believe that -- no, revenge is not on the
9 table. That is not the way I feel at all. I just feel like
10 that every crime -- it's the law of physics. Every action has
11 an equal and opposite reaction.
12 Q. Sure. But in the Bible an eye for an eye means a
13 death for a death, right?
14 A. If you take it literally.
15 Q. Okay. So are you saying you do not?
16 A. Not necessarily. Again, I would say it's a crime
17 equals a punishment.
18 Q. Okay. Not necessarily a death sentence?
19 A. Not necessarily the death sentence.
20 Q. Okay. Now I have to ask you something. When you were
21 talking about a deterrent, committing crimes, it seemed like
22 you pointed over here.
23 A. No, I was just waving.
24 Q. Okay.
25 A. I'm sorry. I talk with my hands.
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1 Q. That's okay. I'm sorry. I just wanted to -- I had to
2 ask.
3 A. No, no. I have no preconceived ideas. I don't know
4 Mr. Harris.
5 Q. Okay. The next one down you said, I think capital
6 punishment is necessary, but I wish it were not. Tell me about
7 that.
8 A. I just think that's humanity in the sense that I wish
9 things didn't happen, you know. I wish we all had sunshine and
10 roses, but we don't. If you had said something besides "wish."
11 Q. Okay. What would you have put in there if you could
12 put another word?
13 A. I don't know. It's just -- it's just necessary.
14 Again, I wish humanity would not be that way; but people are
15 people.
16 Q. Let me ask you another question. You said deterrent,
17 and you said that a few times.
18 A. Okay.
19 Q. Is that going to play a part in your decision?
20 A. I don't really understand which way you mean it, but
21 would I use this as an example? Is that what you're trying to
22 get to? If so, then no. I would try to look at just what's
23 here in the courtroom. I wouldn't think about externals.
24 Q. Okay. So if you were a juror on any capital -- not
25 this Capital Murder case -- a Capital Murder case, would you
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1 think, you know, I need to -- we need to sentence this person
2 to death so we can send a message to others?
3 A. No.
4 Q. Okay. On page 21, Ms. Lee, towards the top of the
5 page, not quite halfway down, it says: Capital punishment is
6 just and necessary. And you said you agree. I think you've
7 explained why it's necessary. Tell me why you think it's just.
8 A. Again, it goes into the crime equals punishment and
9 if -- or equal reactions, et cetera. Once the guilt has been
10 determined and the other -- then you're into that stage of if
11 it's a guilty plea, then it's just. It's a just punishment. I
12 don't think it's outlandish.
13 Q. A death sentence?
14 A. A death sentence.
15 Q. Okay. Because it's sounding, again, like you're
16 telling me an eye for an eye, a death for a death.
17 A. No, no. I am just saying that it is a just
18 punishment. It is an equal one. It is something that could be
19 considered on its own. It's not necessarily the only answer;
20 but it is a just answer, as is life without parole. It's a
21 just punishment as well.
22 Q. So you feel that life without parole is as just a
23 punishment as a death sentence?
24 A. Yes.
25 Q. Okay. You said yes, but you shook your head no.
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1 A. I'm just trying to think of any way that it wouldn't
2 be.
3 Q. Okay.
4 A. I can't think of one that would -- where one would be
5 weighed more heavily on than the other. So, yeah, it's a just
6 punishment.
7 Q. Okay. On page 18, Question 104, we said: What is
8 your best argument against the death penalty? And you said, It
9 is possible for an innocent person to be found guilty.
10 And I agree with you. That is an argument to be
11 against the death penalty. But I want to ask you something. I
12 want to take you back into the context of it is a guilty
13 capital murderer.
14 A. Right.
15 Q. Okay? You know it's a guilty capital murderer, proven
16 beyond a reasonable doubt to you and 11 others.
17 A. Right.
18 Q. Okay? Knowing that, do you have another -- and if you
19 don't, you don't. Do you have another argument against the
20 death penalty?
21 A. Not really. Just that I know that you make the best
22 decision you can based on what you've got in front of you.
23 Something else could always come about later, but you can't
24 take that into factor at this stage. So that's why I said it
25 is possible for someone to be found guilty when not.
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1 Everybody, I think, that sits on a jury tries to not be in that
2 situation.
3 Q. Okay. I'm trying to process your answers.
4 A. That's all right. I'm trying to process them, too.
5 MS. MALLON: May I have a moment, Your Honor?
6 THE COURT: You may.
7 VENIRE PERSON: Could I have a drink of water,
8 please?
9 THE COURT: Yes, ma'am.
10 VENIRE PERSON: Thank you.
11 Q. (BY MS. MALLON) Okay. Ms. Lee, I'm going to talk to
12 you about Special Issue No. 2; but I want to talk to you about
13 some of the other things that Ms. Yenne talked to you about.
14 A. Okay.
15 Q. The confession. And again, I want to put this in
16 context for you. Okay?
17 A. Okay.
18 Q. Let's say that the confession was videotaped. So you
19 saw it, you heard it, you believed it. Okay?
20 A. Okay.
21 Q. And it was a horrific Capital Murder. The person who
22 confesses tells you in detail how they did it, why they did it,
23 no remorse, just horrific. Okay? Are you with me?
24 A. Okay.
25 Q. And you see it and you believe it. You believe it.
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1 Okay?
2 And then as a jury you find that when the police
3 Mirandized this person, they left out a warning. Okay? And as
4 Ms. Yenne told you, that's a violation of the law.
5 A. Yes, ma'am.
6 Q. So then you would be given an instruction from the
7 Court that you could not consider -- you have to wholly
8 disregard that confession and you could not consider it for any
9 purpose.
10 A. Yes, ma'am.
11 Q. You said you could do that?
12 A. It would not be easy.
13 Q. Of course not.
14 A. It would have to be a conscious decision to set it
15 aside. I think that I can do that. Sitting on one of the
16 prior juries we had something similar. And to be honest, it
17 came up in deliberations but we told them it had to be set
18 aside and it could not be considered as part of it. I cannot
19 answer for anybody else on the jury. I can say that that was
20 not used in my decision. Okay? It was not nearly to the
21 extent of this one. Okay?
22 Q. Okay. And that's kind of my point. What kind of case
23 was that?
24 A. It was on the DUI.
25 Q. Okay. And now we're talking about a murder.
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1 A. Right. It's very difficult to unsee, unhear. So it
2 does have to be a conscious decision to set it aside. It is
3 hard to do, and I'm not sure that anybody can answer
4 100 percent that they do it. I really can't tell you that.
5 Q. So you can't answer 100 percent?
6 A. No. I can say that it would be something that I would
7 try to do and that I would be conscious of it, but I cannot say
8 that it would not be in there.
9 Q. Okay. So are you telling me you would -- you can't
10 say you wouldn't consider it?
11 A. No, I can't say that I cannot.
12 MS. YENNE: Your Honor, I'm going to object to
13 the form of question as to the instruction and framed whether
14 she could follow the Court's instruction and the law.
15 THE COURT: Sustained.
16 MS. MALLON: May we approach?
17 THE COURT: You may.
18 (The following discussion was held at the bench.)
19 THE COURT: We are at a bench conference. The
20 venire person cannot hear.
21 MS. MALLON: Can you tell me what was wrong with
22 my question? Just so I make sure.
23 MS. YENNE: Judge, I'm objecting to the question
24 as not -- as failing to give the legal instruction, again in
25 the second question, about whether she can follow the law and
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1 the legal instruction. She has testified that she could; and
2 now in the questioning, that is not in counsel's question. I
3 would ask that the juror be asked and the law be explained to
4 her and whether or not she can follow it. And I'm going to
5 object to a question that does not explain the law again and
6 then come back again regarding the confession.
7 MS. MALLON: Your Honor, I believe I'm entitled
8 to ask questions that I think I will get the most information
9 from, as long as they are not commitment questions. The law
10 has been explained to her for an hour, that Ms. Yenne
11 thoroughly did a good job of. I don't have to ask her my
12 questions in the way that she wants me to.
13 The other thing, Your Honor, is Ms. Yenne's
14 questions were, if not all, at least mostly leading questions.
15 And the law clearly says that that is not sufficient to
16 determine a bias. So that's why I should be able to ask the
17 question I want to as long as it's not an improper commitment
18 question, which it clearly was not. I should be able to ask
19 the questions as I choose to, to get the information I need to
20 exercise my challenges for cause or a peremptory challenge.
21 MS. YENNE: And my exact point is that it would
22 have to lead to a challenge for cause. And if counsel is
23 attempting to ask the question in a way that is a commitment
24 question but then wants to make it for challenge for cause
25 that's exactly what Standefer is talking about. And the
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1 question is if she would take a position that this would
2 suggest a challenge for cause then it is improper not to
3 explain the law regarding the question.
4 THE COURT: All right. The way the question was
5 asked, I'm going to sustain the objection.
6 MS. MALLON: Can you tell me how the question was
7 asked so I know not to ask it again? At this time I don't
8 remember.
9 (Court shows attorney realtime screen.)
10 MS. MALLON: Okay.
11 (Bench discussion concluded.)
12 Q. (BY MS. MALLON) Ms. Lee, I apologize for that long
13 pause. That happens a lot in trials.
14 A. It does.
15 Q. You're used to that because you sat on a trial, right?
16 A. I've sat on a couple of them that did that.
17 Q. And because of that long pause, I'm not a hundred
18 percent sure where we were. But I know we were talking about
19 this confession. And I appreciate your honesty. I really do.
20 And I need to know where you are on that.
21 A. Again, as I said, it's very hard to unhear or unsee;
22 and it's a conscious decision to not take that into
23 consideration. And, you know, you try to set it aside as best
24 you can. I'm going to say that I would probably -- again, not
25 being in the situation, it's hard for me to say definitely that
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1 I would be able to set it aside totally. I would try my best
2 to do so. And that's about the best answer I can give you on
3 it.
4 Q. Okay. Let me take it a step further. Okay? The
5 confession is what, for you, proved the case beyond a
6 reasonable doubt.
7 A. Then I would have to say that I would take that into
8 consideration and say that it would be not -- I would have to
9 find either the not guilty or the not step or whatever.
10 Because if that's what tipped the balance and it was something
11 that I could say that otherwise the case was not proven, then I
12 would have to say that I would have to go on the other side. I
13 would say that it was not guilty, not death penalty, whatever,
14 if that was the scale.
15 Q. Okay. So let me just make sure I understand you.
16 You've heard a confession. You believe it a hundred percent.
17 A. Right.
18 Q. But you also believe that the police missed a warning.
19 A. Right.
20 Q. And this confession is what, for you, would prove
21 their case beyond a reasonable doubt.
22 A. Right. If there was not a supporting documentation,
23 whatever, behind that that would have caused me to be on the
24 guilty, then I would have to say not guilty because it is the
25 deciding factor for me.
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1 Q. Well, you don't have -- let's say you don't have any
2 other supporting documentation?
3 A. Then I would have to say that there was nothing -- the
4 case had not been made.
5 Q. Okay. So even though you heard someone confess to a
6 Capital Murder --
7 MS. YENNE: Objection. Asked and answered
8 repeatedly.
9 THE COURT: Sustained.
10 Q. (BY MS. MALLON) Okay. Ms. Lee, let's talk about this
11 lesser-included offense Ms. Yenne talked about.
12 A. Uh-huh.
13 Q. I think her words were -- well, you know the range of
14 punishment as she explained to you was 5 to 99 or life, right?
15 A. Right.
16 Q. Okay. That's for murder. That's still an intentional
17 killing, as she said, right?
18 A. Right.
19 Q. And I think she even said let's assume that it started
20 at Capital Murder. So it was originally Capital Murder, but
21 she wasn't able to prove burglary or robbery and so -- but she
22 was able to prove an intentional killing.
23 MS. MALLON: Can you tell me how much time I
24 have, Your Honor?
25 THE COURT: You started at 11:15.
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1 Q. So it's still an intentional killing. Okay?
2 A. Uh-huh.
3 Q. Can you say you would honestly consider as little as
4 5 years for an intentional killing?
5 A. Yeah. Yes.
6 Q. Okay. It sounds like you're hesitating. Are you
7 hesitating?
8 A. Well, I'm just trying to think that -- you know, I
9 don't know -- I never have studied the law or whatever. I
10 don't understand all of the consequences, et cetera; but I know
11 that it's what happens in this room. And I do believe that I
12 could take it from the range --
13 Q. Okay.
14 A. -- based on what happens in the room.
15 Q. So you could honestly consider as little as 5 years?
16 A. Yes.
17 Q. Okay. So let's go on to the last Special Issue. And
18 I'm going to try not to blow through this so you don't
19 understand, even though I only have four minutes, probably?
20 A. Okay.
21 Q. As Ms. Yenne said to you, you know, this is the
22 mechanism to spare a life. And you said that was important to
23 you. Why is that?
24 A. I like to be able to consider the circumstances.
25 Q. Okay.
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1 A. Justifiable -- to justify to myself that the decision
2 I reach is fair, equitable, and something that I could live
3 with.
4 Q. Okay. And I will tell you a couple things. The list
5 that she provided you is not exhaustive. Okay?
6 A. Right.
7 Q. The law says mitigation can be anything. She told you
8 a juror can decide that they want to bestow mercy, and they can
9 do that for that reason alone. Okay?
10 A. Okay.
11 Q. The other thing is every individual juror can find
12 something different mitigating. They don't have to, but they
13 can. Does that make sense to you?
14 A. Right.
15 Q. Okay. And I'm certainly not in any way, shape, or
16 form telling you that if you're a juror on a Capital Murder
17 case you do not have to deliberate because you do. That's what
18 the law requires. But deliberation is not legally defined for
19 us anywhere. No surprise, either, is beyond a reasonable
20 doubt, right?
21 A. Right.
22 Q. So I want to ask you would you respect a decision that
23 was different than yours?
24 A. Yes.
25 Q. Okay. And do you think any juror should ever be
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1 bullied --
2 A. No.
3 Q. -- because they have a decision different than anybody
4 else?
5 A. No.
6 Q. Okay. And if you make a decision in your heart of
7 hearts that is the decision for you, are you okay expressing
8 that to the 11 other jurors?
9 A. Yes.
10 Q. Even if it's different than all 11 others?
11 A. Yes.
12 Q. Okay. Now I'm going to put you in context one more
13 time, Ms. Lee. Okay?
14 A. Okay.
15 Q. It's a guilty, guilty, guilty capital murderer, no
16 question. Brutal, ugly, horrendous. And you have found beyond
17 a reasonable doubt, you and 11 others, that this person is
18 going to be a future danger. Are you with me?
19 A. Uh-huh.
20 Q. Okay. Ms. Yenne said that mitigation is anything that
21 might -- it doesn't lessen the guilt, but it lessens the blame.
22 Okay?
23 A. Okay.
24 Q. Guilty capital murderer, future danger. Would you
25 ever consider anything that would lessen the blame of that
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1 person?
2 A. I think I could. You know, again, not being in the
3 position, trying to forecast myself there, I would hope that I
4 could still -- and I think I could still -- consider other
5 circumstances, mitigating things that happen.
6 Q. Do you have doubts?
7 A. Yes, I do.
8 Q. Tell me about that.
9 A. I just -- it's hard for me to picture once coming to
10 those two things that there is something out there. However,
11 you know, it is a possibility that it's out there.
12 Q. Okay. You said it's hard for you to consider that?
13 A. It's just hard to think of it. Not consider. I mean,
14 that's probably the wrong word. But it's hard to come up with
15 it in my head right now. I can't imagine it.
16 Q. Okay.
17 A. But it doesn't mean it's not there.
18 Q. Sure. But I need to know whether or not you can do
19 that. It's a guilty capital murderer. You have determined
20 beyond a reasonable doubt they are going to be a future danger.
21 Can you ever consider anything that will lessen the blame of
22 that guilty murderer?
23 A. I could consider it if I can see it. I mean, I don't
24 know what it would be. I don't know what that mitigation could
25 be. I don't know what it would be. I just don't.
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1 THE COURT: Your hour is up.
2 MS. MALLON: Thank you, Your Honor.
3 THE COURT: Ms. Lee, if you would step down,
4 accompany the bailiff outside, we'll be back with you in a few
5 minutes. Just leave your questionnaire there. Remember all
6 the instructions I've previously given you.
7 (Venire person out.)
8 THE COURT: We are continuing on the record. The
9 record will reflect that counsel for the State, counsel for the
10 defense and the Defendant are present. Ms. Lee has left the
11 courtroom.
12 Present Ms. Lee to the State for any challenge
13 for cause.
14 MS. YENNE: None, Your Honor.
15 THE COURT: Present Ms. Lee to the defense for
16 any challenge for cause.
17 MS. MALLON: We do, Your Honor. And if you'll
18 bear with me. The juror said -- and I'm reading Mr. Wooten's
19 notes, so bear with me, Your Honor.
20 We believe that Ms. Lee is an automatic death
21 penalty juror; and to allow Ms. Lee to sit on the jury would be
22 a violation of due process under the 5th and 14th Amendment;
23 Texas Constitution Article 1, Section 13 and 19; and the Code
24 of Criminal Procedure 1.04.
25 We also believe it would violate effective
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1 assistance of counsel under the 6th and 14th Amendment; Texas
2 Constitution Article 1, Section 10; the Code of Criminal
3 Procedure 1.051.
4 It would also be a violation of the 8th Amendment
5 and the 14th Amendment as cruel and unusual punishment; Texas
6 Constitution Article 1, Section 10, 13 and 18; and the Code of
7 Criminal Procedure 1.09.
8 It would also violate the right to an impartial
9 jury for Mr. Harris under the 6th and 7th Amendment; Texas
10 Constitution Article 1, Section 10 and 15; and the Code of
11 Criminal Procedure Section 1.05, 1.12, 35.16 and 35.17.
12 It's also a violation of Code of Criminal
13 Procedure 35.16(c)(2). The juror does have a bias or prejudice
14 against the law as applicable to this case in that based on her
15 answers she would automatically sentence someone to death on a
16 Capital Murder charge and leans towards a death sentence.
17 It's also a violation under Morgan versus
18 Illinois, Wainwright versus Witt, Cumbo versus State, Pierce
19 versus State and Cuevas versus State.
20 And she said, Your Honor, that when she was in
21 high school and she had a class about Capital Murder, that she
22 did research and she looked at the pros and the cons and ended
23 up on the pro side of the death penalty.
24 She leans toward the death penalty as a
25 possibility. The death penalty would be more humane than life
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1 without parole for some people. And after I gave her the
2 hypothetical, she said the death penalty is definitely on the
3 table.
4 With respect to future danger she said she would
5 try her best to not -- to answer that question based on the
6 evidence and she would try to keep an open mind. She said she
7 probably has something or would have something in her head that
8 might make her lean one way or the other. She said that
9 capital punishment is justified due to deterrence. Capital
10 punishment is justified due to life for a life, eye for an eye.
11 The death penalty is not outlandish. That was her quote.
12 With respect to the confession, Your Honor, she
13 said she would try. That would have to be a conscious
14 decision. It would be hard to do. She's not sure. She said
15 anyone could not be a hundred percent. She can't say it's a
16 hundred percent for her that she could disregard the
17 confession.
18 With respect to mitigation she said, I think I
19 would consider it. I would hope that I would. But she has
20 doubts. It's hard to picture that there is something out
21 there -- these are her words. It's hard to picture that there
22 is something out there. Hard to envision. Can't imagine what
23 it would be. She also stated, I could consider it if I could
24 see it.
25 And with respect to future danger, again, Your
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1 Honor, she said, I would try my best to keep an open mind.
2 Again, Your Honor, that would be a violation of the Due Process
3 Clause, effective assistance of counsel, cruel and unusual
4 punishment, right to an impartial jury, Code of Criminal
5 Procedure 35.16(c)(2), and Ladd versus State.
6 And I understand that when Ms. Yenne spoke to her
7 she said that she could follow the law and she would do what
8 was requested of her; however, as the Court well knows, under
9 Morgan versus Illinois, leading questions are not sufficient to
10 determine a juror's bias. That's up to the Court to decide.
11 And based on the answers that we elicited from her that were
12 not leading questions, she has clearly indicated a bias. We
13 believe she would be an automatic death penalty juror, she
14 would not consider future danger, and she would not consider
15 mitigation.
16 THE COURT: Do you wish to respond?
17 MS. YENNE: Judge, yes. The record is exactly
18 the opposite. First of all, in asking whether she would be an
19 automatic sentence, she repeatedly said that there should be no
20 automatic sentence. She was repeatedly asked if she found
21 someone guilty could she keep an open mind or have an automatic
22 sentence towards life without parole or the death penalty. She
23 said no.
24 She was repeatedly asked when we put up the grid
25 whether or not she would automatically answer the Special Issue
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1 No. 1 yes. She basically said that -- under oath, that you
2 could be a convicted capital murderer and she could still
3 answer no, that you weren't a future danger, that I would have
4 to prove it to her beyond a reasonable doubt. After having the
5 grid fully explained to her, she could answer yes or no to
6 Special Issue No. 1 based on the evidence.
7 She also at that point in time, on continued
8 questioning, indicated that she would have to keep an open mind
9 and freely discuss the mitigation issue about sparing someone's
10 life. She went through and said she could consider and give
11 effect to everything that was on the screen: Violence,
12 poverty, low IQ, exposure to toxic materials, chemicals. We
13 discussed mercy and indicated that mercy could be a factor,
14 consider and give effect to. She answered that she could
15 honestly consider. At the conclusion of my questioning I asked
16 if she could honestly do this and she said yes.
17 Regarding the confession, she was very forthright
18 and said that while it would be difficult, she could do it. In
19 response to my questioning she said that she would wholly
20 disregard it and find someone not guilty of Capital Murder.
21 But more importantly, in response to defense questioning when
22 the more open questioning, as counsel described it, occurred,
23 she actually demonstrated that. She said she had been on a
24 previous jury and had to disregard it and that she disregarded
25 it, did not consider it.
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1 She also, in response to further questioning from
2 counsel, verified and volunteered that as to the confession
3 that she would try her best, which by the way, was like
4 Ms. Maniet. But then she went a separate step further. She
5 said, well, if that's the only piece, I couldn't consider it,
6 I'd have to find not guilty. Which actually verified that she
7 would have to find not guilty.
8 Additionally, in the record she has said from her
9 questionnaire, I would consider all of the penalties provided
10 by law and the facts and the circumstances of a particular
11 case.
12 In response to counsel's hypothetical she said
13 that the death penalty would still be on the table but that it
14 was not the only penalty, so would life without parole, and
15 that she considered punishment -- even when they pressed her
16 for an eye for an eye -- to include life without parole.
17 She is clearly a qualified -- and by the way, on
18 Number 153 she verified that she wanted to be open to the facts
19 of this case so whatever decision she reached she could live
20 with it. And the record is clear that she's not challengeable
21 for cause.
22 THE COURT: All right. Based on her demeanor and
23 the thoughtful way that she answered the questions, I think the
24 hesitation that was referred to is an indication, to me at
25 least, of an honest reflection that a person gives that will
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1 seriously consider all of the options and take this very
2 seriously. I'm going to deny your challenges for cause.
3 I'll pass her to the State for peremptory.
4 MS. YENNE: None, Your Honor.
5 THE COURT: Pass to the defense for peremptory.
6 MS. MALLON: May we talk with Mr. Harris, Your
7 Honor?
8 THE COURT: You may.
9 (Discussion off the record.)
10 MS. MALLON: Yes, Your Honor, we would.
11 THE COURT: That's Defense Peremptory No. 7.
12 That's granted.
13 Mr. Falks, would you have Ms. Lee come back?
14 Mr. Harris, you talked to your counsel about that
15 exercise?
16 THE DEFENDANT: Yes, sir.
17 THE COURT: And you're in agreement with that?
18 THE DEFENDANT: Yes, sir.
19 THE COURT: All right. Thank you.
20 (Venire person in.)
21 THE COURT: We're on the record. The record will
22 reflect that counsel for the State, counsel for the defense and
23 the Defendant are present.
24 Counsel, you may be seated.
25 Ms. Lee, I want to thank you very, very much for
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1 continue that. Sometimes we get people who will sit up there
2 and a question will be asked and they will nod their head or
3 shake their head, and that makes it very difficult for the
4 court reporter and for the record. So if you would, give a
5 clear audible response and try to avoid things like uh-huh and
6 things of that nature. Can you do that for me?
7 VENIRE PERSON: I'll sure try.
8 THE COURT: All right. Do you have any questions
9 of me before we get started?
10 VENIRE PERSON: No, I don't.
11 THE COURT: Ms. Aldous, you may begin when you're
12 ready.
13 DONNA VANSCOY,
14 having been first duly sworn, testified as follows:
15 VOIR DIRE DIRECT EXAMINATION
16 BY MS. ALDOUS:
17 Q. Good morning, Ms. Vanscoy.
18 A. Good morning.
19 Q. Did I say that correctly?
20 A. You sure did.
21 Q. My name is Mary Aldous, and I'm an Assistant District
22 Attorney. I work for the elected District Attorney, Jeri
23 Yenne, who is seated to my right.
24 MS. YENNE: Good morning.
25 VENIRE PERSON: Good morning.
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1 Q. And we represent the State of Texas in this case.
2 The Defendant, James Harris, Jr., is represented
3 by Jay Wooten and Kerri Mallon.
4 MS. MALLON: Good morning.
5 VENIRE PERSON: Good morning.
6 Q. And there are no right or wrong answers here. This is
7 one time where, you know, there is no right or wrong. We just
8 need to know how you feel about the law, what your true
9 feelings and honest heart-to-heart feelings are. Okay?
10 A. Okay.
11 Q. And you don't need to say anything that you think
12 would please the State or say anything that you think would
13 please the defense. We just need to know what -- about you and
14 your feelings. Okay?
15 A. Okay.
16 Q. And there is nothing to be concerned about. If you
17 feel that, you know, you can't follow the law, then we just
18 need to know about it. Okay?
19 A. Yes.
20 Q. And the reason that we have this process, voir dire,
21 is to insure that the parties get a fair trial. Because both
22 the State and the Defendant have a right to a fair trial in a
23 criminal case. Okay?
24 A. Okay.
25 MS. ALDOUS: May I approach, Judge?
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412th Judicial District Court 01/28/2015
James Harris Appendix Page 000354 36
1 THE COURT: You may.
2 Q. I'm going to hand you your questionnaire just in case
3 I need to ask you some questions about it. I don't know if
4 you're like me. Sometimes it's hard for me to remember what I
5 put down two weeks ago or yesterday.
6 A. That's what I was worried about.
7 Q. I did notice something on there that you know Jerome
8 Aldrich?
9 A. Yes.
10 Q. And I'll tell you a little story. I've been blessed
11 in my life because not only did Jerome Aldrich give me a break
12 with a job, but so did Jeri Yenne. So I've been hired by two
13 great District Attorneys. And Jeri hired me twice. So I will
14 say that, you know, that says she must like me.
15 And you know him through church. Is that right?
16 A. Yes.
17 Q. Did you -- was there -- do you know him from any other
18 place, or is it just from Brazos Pointe?
19 A. Just from Brazos Pointe Church. He's in our small
20 group.
21 Q. Okay. All right. Well, this is the State of Texas
22 versus James Harris, Jr., and it's a Capital Murder case and
23 the State is seeking the death penalty. Okay?
24 A. Okay.
25 Q. And he's charged by indictment, which sets out the
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1 elements of the offense that the State has to prove beyond a
2 reasonable doubt. And those elements are that on or about the
3 14th day of January, 2012, in Brazoria County, Texas, the
4 Defendant did then and there intentionally cause the death of
5 an individual, to-wit: Alton Wilcox, by stabbing Alton Wilcox
6 with a knife, and the Defendant was then and there in the
7 course of committing or attempting to commit the offense of
8 Robbery of Darla Wilcox.
9 And then there is a second paragraph, on or about
10 the 14th day of January, 2012, in Brazoria County Texas, the
11 Defendant intentionally caused the death of an individual,
12 to-wit: Alton Wilcox, by stabbing Alton Wilcox with a knife,
13 and the Defendant was then and there in the course of
14 committing or attempting to commit the offense of Burglary of a
15 Habitation owned by a Darla Wilcox.
16 And then the third paragraph, on or about the
17 14th day of January, 2012, in Brazoria County, Texas, the
18 Defendant intentionally caused the death of an individual,
19 to-wit: Alton Wilcox, by stabbing Alton Wilcox with a knife,
20 and the Defendant was then and there in the course of
21 committing or attempting to commit the offense of Burglary of a
22 Habitation owned by Alton Wilcox.
23 And that sets out the charge of Capital Murder
24 and the elements that the State must prove beyond a reasonable
25 doubt. Okay?
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1 A. Okay.
2 Q. And if you don't understand something that I'm saying,
3 if you'll please just let me know so I can rephrase it or
4 figure out what I'm doing wrong.
5 A. Okay.
6 Q. Because I want to make sure you understand my
7 questions. Okay?
8 A. Yes.
9 Q. Murder is intentionally causing the death of an
10 individual. There is no self-defense, no justification, no
11 excuse, no defense of a third person, no insanity. It's
12 cold-blooded killing of another human being. Okay?
13 An example, two neighbors. One neighbor is just
14 tired of living next door to his neighbor and decides that he's
15 going to kill him. So he gets a gun and meets him outside and
16 shoots him and he kills him. That's murder.
17 A. Okay.
18 Q. Do you understand?
19 A. Sure do.
20 Q. All right. Then there is Capital Murder. And before
21 I go to the slide, Capital Murder is murder plus additional
22 elements that bump it up to a higher degree. Okay?
23 A. Okay.
24 Q. And some examples of Capital Murder are when a police
25 officer is killed in the line of duty and the person knows that
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James Harris Appendix Page 000357 39
1 they are a police officer, that's Capital Murder.
2 Intentionally killed. I'm sorry. And then when a child under
3 the age of 10 intentionally -- they intentionally cause the
4 death of a child under 10, that's Capital Murder. Or if you
5 intentionally cause the death of several people at one time.
6 Like you go into a convenience store and you shoot and kill
7 three people at one time. That's Capital Murder.
8 And then there is Capital Murder the way we have
9 it alleged in our indictment; and that is this person
10 intentionally commits murder in the course of committing or
11 attempting to commit kidnapping, burglary, robbery, aggravated
12 sexual assault, arson, obstruction or retaliation, or
13 terroristic threat. So as you can tell, we have burglary and
14 robbery in red up there, and that's because that's what was
15 alleged in the indictment, that it was in the course of
16 committing burglary of a habitation or in the course of
17 committing robbery.
18 A. Okay.
19 Q. So that's what makes it Capital Murder.
20 A person acts intentionally or with intent with
21 respect to a result of his conduct when it is his conscious
22 objective or desire to cause the result. And in this situation
23 it would be to cause the death. That's your conscious
24 objective or desire. Like in my neighbor example, the one
25 neighbor wanted to kill his neighbor and cause the death; and
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1 that's what he did. Okay?
2 A. Okay.
3 Q. Now the prosecution has the burden of proving those
4 elements in the offense -- in the indictment that I read to
5 you. We have to prove that to you beyond a reasonable doubt.
6 Okay? And the -- you would get an instruction if you were on
7 the jury that says the prosecution has the burden of proving
8 the Defendant guilty and must do so by proving each and every
9 element of the offense charged beyond a reasonable doubt. It
10 is not required that the prosecution prove guilt beyond all
11 possible doubt. It is required that the prosecution's proof
12 excludes all reasonable doubt concerning the Defendant's guilt.
13 A. Okay.
14 Q. Do you understand that instruction?
15 A. Yes, I do.
16 Q. Okay. And what I do know about beyond a reasonable
17 doubt is that it doesn't mean beyond all doubt. Does it
18 mean -- what does beyond a reasonable doubt mean to you?
19 A. To me it means that there is more than just one or two
20 factors that is -- you know, that proves that they had
21 committed the crime or whatever. Not just, you know, one
22 thing.
23 Q. So it doesn't -- I mean, to you it doesn't mean beyond
24 all doubt, correct?
25 A. No.
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1 Q. And how would you know something beyond all doubt?
2 Would you have to witness it?
3 A. Yes.
4 Q. Okay. And if you were a witness, then you couldn't be
5 a juror on the case.
6 A. That's right.
7 Q. Because you'd have to take the stand to tell the jury
8 what you saw.
9 A. Right.
10 Q. Okay? So that's why it's proof beyond a reasonable
11 doubt. Okay?
12 A. Yes.
13 Q. And not beyond all doubt.
14 The State is required to prove to you the
15 elements alleged in the indictment. And that's what we have
16 the burden of proof on, beyond a reasonable doubt, those
17 elements that I read to you in that indictment.
18 In any case there is going to always be
19 inconsistencies to things. Let me give you an example. We had
20 a car accident outside the courthouse and a car ran a red light
21 and that's what I needed to prove beyond a reasonable doubt,
22 that the car ran the red light. There were ten witnesses, and
23 all ten witnesses said that the car ran the red light. Now
24 some of the witnesses said that it was 2:00 in the afternoon
25 and some said it was 2:10. Some said that it was a cloudy day.
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James Harris Appendix Page 000360 42
1 Some said it was misting. I mean, those are inconsistencies.
2 However, everybody was consistent that the car ran the red
3 light and that's what I had to prove. Do you understand?
4 A. Yes, I sure do.
5 Q. I mean, because people -- would you agree with me
6 people perceive things differently sometimes?
7 A. Yes.
8 Q. Okay. And so everybody's recollection may be a little
9 bit different.
10 A. Right.
11 Q. All right. There are several levels of burden of
12 proof. The lowest level is preponderance of the evidence, and
13 that means the greater weight and degree of credible evidence.
14 It's used in civil cases like the car accident if someone was
15 suing someone for money. Okay? And it's a slight tipping of
16 the scales in your favor. All right?
17 A. Okay.
18 Q. Then there is the next level of burden of proof, a
19 higher level than preponderance, and that's clear and
20 convincing evidence. It is that measure or degree of proof
21 that produces a firm belief or conviction that the allegations
22 sought to be established are true. And that's used in another
23 type of civil cases where CPS is trying to terminate parental
24 rights.
25 A. Okay.
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James Harris Appendix Page 000361 43
1 Q. And then there is the highest level, and that's beyond
2 a reasonable doubt. And that's used in criminal trials. Not
3 just Capital Murder, but all criminal trials. And there is no
4 definition for what beyond a reasonable doubt means.
5 A. Okay.
6 Q. But it is the highest burden of proof, and we do know
7 that it doesn't mean beyond all doubt.
8 A. Okay.
9 Q. All right?
10 A. Yes.
11 Q. So let me take it a little bit further. If I prove to
12 you -- well, let's say that Jeri and I have a bad day. And it
13 could happen. We forget to prove one of those elements, a
14 major element. We forget to prove a burglary of a habitation
15 or the robbery. Okay? And so we haven't proven the case to
16 you beyond a reasonable doubt. All right?
17 A. Okay.
18 Q. Are you with me?
19 A. Yes.
20 Q. And if we haven't proven the case beyond a reasonable
21 doubt because we forgot to prove -- and that's our burden -- we
22 forgot to prove something very important, you will have to find
23 the Defendant not guilty. Correct?
24 A. That's right.
25 Q. Okay. And you could do that?
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1 A. Yes.
2 Q. Okay. And just the opposite. If we prove it beyond a
3 reasonable doubt, all those elements of the offense, you could
4 find him guilty, correct?
5 A. Yes.
6 Q. Okay. All persons are presumed to be innocent and no
7 person may be convicted unless each element of an offense is
8 proved beyond a reasonable doubt. And that's what we've been
9 going over, right?
10 A. Right.
11 Q. And the fact that a defendant has been arrested,
12 confined, or indicted for, or otherwise charged with an offense
13 gives rise to no inference of guilt at his trial. So as he
14 sits here today, can you presume Mr. Harris innocent?
15 A. Yes.
16 Q. Okay. And the law does not require the Defendant to
17 prove his innocence or produce any evidence at all. Do you
18 understand that?
19 A. Yes.
20 Q. Okay. And so back to my example of Jeri and I falling
21 down on the job and we forgot to prove something, a major
22 element, that burglary or robbery. Okay? So we didn't prove
23 it beyond a reasonable doubt, and the Defendant is not required
24 to prove his innocence or produce any evidence at all.
25 Correct?
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1 A. Right.
2 Q. So if we fall down on our responsibility of proving
3 the case beyond a reasonable doubt, you would have to find him
4 not guilty, right?
5 A. That's correct.
6 Q. Okay. And it wouldn't matter because you can't
7 require him to produce any evidence at all, right?
8 A. Right.
9 Q. All right. And then one step further with that is the
10 Fifth Amendment privilege against self-incrimination. You
11 know, and this is one of those rights that sets us apart from
12 other countries in the world -- I mean, sets the United States
13 apart from other countries. We have this Fifth Amendment
14 privilege against self-incrimination. Every defendant in any
15 criminal case has the right not to testify. That would be me
16 if I was charged with a crime. I have that same right. It
17 would be anybody in this room if they were charged with a crime
18 has the right not to testify. And you cannot consider it for
19 any reason. Do you understand that?
20 A. Yes, I do.
21 Q. Okay. So there are times people say, you know, that
22 they would like to hear from, you know, the Defendant. It's a
23 serious case, they want to hear from him. But this says that
24 you cannot consider his lack or failure to testify for any
25 reason.
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1 A. Okay.
2 Q. Do you understand that?
3 A. Yes.
4 Q. Can you follow that law?
5 A. Yes.
6 Q. Okay. Are you going to require -- I mean, if we fell
7 down on the job, didn't prove the case beyond a reasonable
8 doubt, we didn't prove those elements to you and the Defendant
9 chose not to testify and we failed on our burden, I mean, you
10 would have to find him not guilty, correct?
11 A. That's correct.
12 Q. And you couldn't consider for any purpose his failure
13 to testify, right?
14 A. That's right.
15 Q. Now if you had to vote right now, you would have to
16 vote not guilty.
17 A. Not guilty. That's right.
18 Q. Because we haven't produced any evidence yet.
19 A. Correct.
20 Q. Okay. The indictment alleges one charge of Capital
21 Murder. Remember I was reading to you and I'd tell you there
22 was another paragraph and another paragraph?
23 A. Yes.
24 Q. Well, there is three paragraphs in that indictment,
25 and it's one charge of Capital Murder of the victim, Alton
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1 Wilcox, with alternate methods of committing the same offense.
2 And these alternate methods are by robbery or by burglary.
3 Okay? Are you with me?
4 A. Okay. Yes.
5 Q. As long as the jury unanimously agrees beyond a
6 reasonable doubt that the elements of Capital Murder are met,
7 the jury does not need to agree unanimously on which manner and
8 means, being the burglary or the robbery. So six of you could
9 believe -- if you are on the jury, six could believe that it
10 happened in the course of a robbery and six jurors could
11 believe, well, it happened in the course of a burglary. But
12 everybody is unanimous that it was a Capital Murder. Okay?
13 A. Yes. I understand.
14 Q. All right. Now there is two different types of
15 evidence in a criminal case. There is direct evidence, and
16 that's evidence that directly demonstrates the ultimate fact to
17 be proven. Okay? Examples are eyewitness testimony or video
18 of a crime -- now Jeri always says, I don't know if it's called
19 video anymore. It's maybe called something else. But
20 electronic something. But, I mean, you know, video of a crime
21 I think pretty much says it, even though it's on a different
22 type of media -- and then or a confession. Okay?
23 A. Okay.
24 Q. Those are examples of direct evidence.
25 And then there is what's called circumstantial
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412th Judicial District Court 01/28/2015
James Harris Appendix Page 000366 48
1 evidence. And this definition is a mouthful. Evidence that is
2 direct proof of a secondary fact which, by logical inference,
3 demonstrates the ultimate fact to be proven.
4 I'm going to give you an example. There is a
5 young child who wants to go swimming and goes and asks -- they
6 have a pool in their backyard -- his mother if they can go
7 swimming. The mother says, Not right now. We'll go later.
8 She hears the child go towards the backdoor. She hears the
9 backdoor open. She hears a splash in the pool. She goes
10 outside to check. She sees her child there, bathing suit
11 dripping wet.
12 Now she didn't see the child in the pool.
13 Correct?
14 A. Correct.
15 Q. But she has direct proof of a secondary fact which, by
16 logical inference, leads her to believe that the child had been
17 in the pool. Are you with me?
18 A. I am.
19 Q. Okay. Now I have to ask you a question. If the State
20 proves to you beyond a reasonable doubt the elements of the
21 offense, can -- so we've proven it to you beyond a reasonable
22 doubt. All right? Our burden has been met. Can you convict
23 someone of Capital Murder based on circumstantial evidence?
24 A. Yes, I can.
25 Q. Okay. All right. And then we have what's called one
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1 eyewitness. If we -- I mean, the law allows someone to be
2 convicted on the basis of one eyewitness testimony alone.
3 Okay? If we prove to you all those elements in the indictment
4 beyond a reasonable doubt and you believe it beyond a
5 reasonable doubt and we do so through one eyewitness alone,
6 they establish all the elements in the indictment and you
7 believe them beyond a reasonable doubt, can you convict someone
8 of Capital Murder based on one eyewitness' testimony?
9 A. Yes, I could.
10 Q. All right. The penalty range for Capital Murder is
11 life without parole or the death penalty. So there is two
12 options for Capital Murder. And would you agree with me they
13 are both serious options?
14 A. Yes, they are.
15 Q. Okay. Life without parole, that's serious.
16 A. Yes.
17 Q. That's a big punishment.
18 A. Yes, it is.
19 Q. Would you agree with me?
20 A. Yes.
21 Q. And death penalty, that's an ultimate punishment.
22 A. Yes, it is.
23 Q. Can you consider the full range, penalty range, for
24 Capital Murder?
25 A. Yes, I could.
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1 Q. Now I'm going to take you to your questionnaire
2 because I want to ask you something that I noticed that you put
3 down.
4 A. Okay.
5 Q. On page 22, it was the agree and disagree. And we
6 threw these questionnaires to people without giving them any
7 information or any law whatsoever just to kind of get your
8 ideas or feelings. And I noticed on the last agree and
9 disagree you checked, Agree. The death penalty should never be
10 imposed if the alternative is a life sentence without the
11 possibility of parole.
12 A. Yes.
13 Q. And is that how you feel or --
14 A. Well, I think I need to hear all the evidence --
15 Q. Okay.
16 A. -- to decide, you know, on that. And if without a
17 shadow of a doubt that you've proven everything, I could
18 convict on death penalty.
19 Q. Okay. So it's not shadow of a doubt. It's beyond a
20 reasonable doubt.
21 A. I'm sorry. Beyond a reasonable doubt. I'm sorry.
22 Q. Okay. So that was just a general feeling; but now
23 that I've explained the law to you, you could consider the full
24 range?
25 A. Yes.
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James Harris Appendix Page 000369 51
1 Q. Okay. Thank you.
2 Now I will continue on. I just want to make sure
3 on that. And I'm not picking on you either. I just -- like I
4 said, we need to get your feelings. Okay?
5 A. Yes.
6 Q. Now sometimes there are lesser-included offenses. And
7 in the prosecution for an offense with a lesser-included
8 offense, the jury may find the Defendant not guilty of the
9 greater offense but guilty of any lesser-included offense.
10 Well, in Capital Murder the lesser-included offense of Capital
11 Murder would be murder. Okay?
12 A. Okay.
13 Q. And so in order to be a juror on a case where there is
14 a lesser-included, you have to be able to consider the penalty
15 range for the lesser-included as well. Okay?
16 A. Okay.
17 Q. And the legislature for murder gave a very wide
18 penalty range because, would you agree with me, there is all
19 different kinds of murder?
20 A. Yes, there is.
21 Q. I mean, and every set of facts is different.
22 A. Yes.
23 Q. Would you agree with me?
24 A. Yes.
25 Q. So they gave us a large penalty range for that, and
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1 that penalty range is 5 years to 99 years or life and up to a
2 10,000-dollar fine. Okay?
3 A. Okay.
4 Q. And in order to be a juror on a Capital Murder case,
5 you have to consider the full range -- penalty range for
6 murder, including the minimum to the maximum. And, you know,
7 there is all different kinds of murder. There could be a mercy
8 killing of a terminally ill child. There could be a
9 cold-blooded killing of someone. I mean, there is always
10 different kinds of killing. It could be a drug-related
11 killing. Could be a gang-related killing.
12 So let's go -- you're a juror on this case.
13 Okay?
14 A. Okay.
15 Q. On another case. Sorry. Sorry.
16 MS. YENNE: Hypothetical case.
17 Q. Hypothetical case. You've found the person not guilty
18 of Capital Murder.
19 A. Okay.
20 Q. Can you consider the full range of punishment for
21 murder, including the minimum, the 5 years, up to the maximum,
22 the 99 years or life, and up to a 10,000-dollar fine?
23 A. Yes, I can.
24 Q. Okay. All right. Jurors are the sole judge of the
25 credibility of the witnesses. Jurors can believe all, some, or
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1 none of what a witness says. All witnesses have equal
2 credibility before they begin to testify.
3 Now some people say that, you know, if an officer
4 comes to testify, they are going to -- they may hold them to be
5 a little more credible than other witnesses. And some people
6 say they might hold an officer to a little less credibility,
7 depending on their circumstances of their life. But you have
8 to hold all witnesses with equal credibility before they
9 testify. Can you do that?
10 A. Yes, I can.
11 Q. Okay. You're not going to hold an officer to a higher
12 standard just because they are an officer?
13 A. No.
14 Q. Or a doctor because they're a doctor?
15 A. No.
16 Q. All right. A confession of a defendant is admissible
17 in evidence if certain requirements are met. The law lays that
18 out. It's important, you know, for us to follow the rules; and
19 it's important for the police to follow the rules. Would you
20 agree with me on that?
21 A. Yes.
22 Q. Okay. And the law says that a confession is
23 admissible in evidence if freely and voluntarily made,
24 electronically recorded or written, the confession shows that
25 the accused has been warned prior to making such confession of
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1 the following rights -- and these are important rights -- the
2 right to remain silent, used again him in court, the right to a
3 lawyer, if cannot afford a lawyer the right to have a lawyer
4 appointed, the right to stop questioning at any time,
5 knowingly, intelligently, and voluntarily waives these rights.
6 Now would you agree with me that those are all
7 important rights?
8 A. Yes.
9 Q. Okay. And it's important that the police follow this
10 law, correct?
11 A. That's correct.
12 Q. Okay. And so the law says that the jury gets to
13 decide whether the police complied with it or not. And if you
14 do not believe that the police complied or that the confession
15 was involuntary, then you will wholly disregard the alleged
16 statement or confession and not consider it for any purpose.
17 Do you understand that?
18 A. Yes, I do.
19 Q. Can you honestly follow that?
20 A. Yes.
21 Q. Okay. Let me give you an example. You hear -- you
22 see a video confession of a Capital Murder. You see the
23 defendant talk about how he enjoyed killing the person, and you
24 believe he did it. It was a brutal killing. He's laughing
25 about it. Innocent victim, no self-defense, no justification,
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1 no insanity. He enjoyed it, and you see this. But the police
2 left off the right to stop questioning. It was a computer
3 glitch. It wasn't -- they left that out. It's not on there.
4 Can you wholly disregard the alleged statement or confession
5 and not consider it for any purpose?
6 A. Yes.
7 Q. Now let me go a little bit further on that. Okay?
8 Are you with me?
9 A. Yes, I am.
10 Q. The same scenario, same video confession. Brutal,
11 brutal Capital Murder. He's laughing about it. No
12 self-defense, no justification, no insanity. The same right
13 missing, the computer glitch with the right to stop questioning
14 at any time. You believe that it happened. Okay? You believe
15 what he said, but that's all I had to prove my case to you
16 beyond a reasonable doubt. Can you disregard the confession
17 and find him not guilty?
18 A. Yes, I could.
19 Q. Was that yes? I'm sorry.
20 A. Yes.
21 Q. Okay. Sometimes I can't hear as well. I thought you
22 might have said "I guess." But that's -- all right.
23 Voluntary intoxication does not constitute a
24 defense to the commission of a crime. So if I go out and drink
25 a lot of alcohol and decide to go steal makeup from Wal-Mart,
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1 it's not a defense that I'm intoxicated. Okay?
2 A. Okay.
3 Q. Can you follow that?
4 A. Yes.
5 Q. All right. A person is criminally -- causation. A
6 person is criminally responsible if the result would not have
7 occurred but for his conduct, operating either alone or
8 concurrently with another cause, unless the concurrent cause
9 was clearly sufficient to produce the result and the conduct of
10 the actor clearly insufficient.
11 Let me give you an example. I set my apartment
12 on fire to cover up a crime. I'm setting it on fire. A family
13 that lives next door to me, they die. Now the fire is set and
14 the fire department is having equipment problems and they don't
15 have the response time that they should have to get to the
16 apartment to save the family. Now my act of setting the fire
17 to the apartment is clearly sufficient to cause the death of
18 the people, correct?
19 A. Yes.
20 Q. Okay. Did that kind of explain?
21 A. Yes.
22 Q. Burglary. A person commits an offense if, without the
23 effective consent of the owner, the person enters a habitation
24 with intent to commit a felony, theft, or an assault, or enters
25 a habitation and commits or attempts to commit a felony, theft,
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1 or an assault. So you can either have the intent when you
2 enter or you can form it when you're -- you can do it when
3 you're in there. Okay?
4 A. Okay.
5 Q. And then robbery. A person commits an offense if, in
6 the course of committing theft and with intent to obtain or
7 maintain control of the property, he intentionally, knowingly,
8 or recklessly causes bodily injury to another.
9 Now when I'm stealing my makeup from Wal-Mart,
10 the manager is running after me and I push or I shove the
11 manager down and the manager breaks an arm or scrapes an elbow.
12 That would be robbery. Okay?
13 A. Okay.
14 Q. In the course of committing theft means conduct that
15 occurs in an attempt to commit, during the commission, or in
16 immediate flight after the attempt or commission of theft.
17 Okay?
18 A. Okay.
19 Q. All right. So there are two parts of a trial. If the
20 Defendant is found guilty, then there is two parts to a trial.
21 Okay?
22 A. Okay.
23 Q. If a defendant is found not guilty, it stops right
24 there. Okay?
25 A. Okay.
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1 Q. If the Defendant is found guilty, then it goes on to
2 the punishment phase. All right?
3 A. Yes.
4 Q. And there are certain principles that you have to
5 follow in a death penalty case. It's not just a vote for life
6 or death. It's more involved than that. Do you understand?
7 A. Yes, I do.
8 Q. All right. And right after a guilty verdict, before
9 any punishment evidence is presented, you can't have your mind
10 made up as to how you're going to answer the questions. There
11 is going to be two -- well, one question; and then depending on
12 how you answer, another question.
13 A. Okay.
14 Q. Okay? So you can't have your mind made up to what
15 you're going to sentence the Defendant to. Do you understand?
16 A. Yes, I do.
17 Q. You have to have an open mind.
18 A. Yes.
19 Q. So after guilt/innocence, after you found the
20 Defendant guilty of Capital Murder, you have to have an open
21 mind.
22 A. Okay.
23 Q. You have to consider still both appropriate penalties.
24 You have to listen to all the punishment evidence before any
25 opinion, answers, can be formed. Okay?
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1 A. Okay.
2 Q. And you shall consider guilt/innocence evidence but
3 must be able to consider any and all punishment evidence as
4 well.
5 A. Okay.
6 Q. All right? So that's -- that pretty much tells you
7 you can't have your mind made up.
8 A. That's right.
9 Q. Right? In order to consider all evidence, you have to
10 keep an open mind. And each question is independent of the
11 verdict, and each question is independent of each other.
12 A. Okay.
13 Q. And each question is based only on the evidence
14 presented.
15 A. Okay.
16 Q. So after you've convicted someone of Capital Murder,
17 will you have an open mind?
18 A. Yes, I will.
19 Q. Are there two appropriate penalties after you've
20 convicted someone of Capital Murder?
21 A. Yes.
22 Q. Possible penalties, life without parole and the death
23 penalty?
24 A. That's right.
25 Q. All right. And in deliberating on the issue submitted
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1 you shall consider all evidence admitted at the guilt or
2 innocence stage and the punishment stage, including evidence of
3 the Defendant's background or character or the circumstances of
4 the offense that militates for or mitigates against the
5 imposition of the death penalty. It says to consider all
6 evidence, correct?
7 A. That's correct.
8 Q. Guilt/innocence and punishment evidence. Defendant's
9 background and character, circumstances of the offense that
10 militates for or mitigates against the imposition of the death
11 penalty. Okay? So you have to have an open mind. Will you do
12 that?
13 A. Yes, I will did.
14 Q. All right. And the first question after you found
15 someone guilty of Capital Murder and you have an open mind,
16 then you get this Special Issue No. 1 which says, do you find
17 from the evidence beyond a reasonable doubt that there is a
18 probability that the Defendant would commit criminal acts of
19 violence that would constitute a continuing threat to society?
20 And so the first thing is, do you find from the
21 evidence -- that's guilt/innocence and punishment evidence.
22 Okay?
23 A. Okay.
24 Q. Beyond a reasonable doubt. I, the State, has a burden
25 of proof on this Special Issue No. 1. We have to prove it to
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1 you beyond a reasonable doubt. And remember, that doesn't mean
2 beyond all doubt, right?
3 A. That's right.
4 Q. Okay. That there is a probability. Probability, the
5 law says probability is more than a possibility. Would you
6 agree with me on that?
7 A. Yes.
8 Q. Okay. Do you think probability means more likely than
9 not?
10 A. Yes.
11 Q. Okay. That the Defendant would commit criminal acts
12 of violence. Criminal acts of violence. I mean, does that
13 mean two acts to you or -- is that plural?
14 A. Plural.
15 Q. That would constitute a continuing threat to society.
16 Society, the law says, is not limited to but includes prison.
17 A. Yes.
18 Q. And that's because if you find someone guilty of
19 Capital Murder, then they are going to prison either one way or
20 another. They are either going life without parole or the
21 death penalty to wait on death row. Okay?
22 A. I understand.
23 Q. Okay. And so does society, to you, include prison?
24 A. Yes.
25 Q. Can you follow that?
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1 A. Yes.
2 Q. I mean, there is all types -- would you agree with me
3 there is all types of society?
4 A. Yes.
5 Q. The courthouse could be a society?
6 A. Right.
7 Q. Your workplace could be a society?
8 A. Yes.
9 Q. Your volunteer group. Are you the one that volunteers
10 for a group? I can't remember.
11 A. Yeah.
12 Q. Everybody runs together.
13 A. The Gathering Place for Alzheimer's.
14 Q. Okay. That could be a society, couldn't it?
15 A. Yes.
16 Q. All right. Criminal acts of violence. These may be
17 property crimes. Can you consider property crimes to be
18 criminal acts of violence in answering Special Issue No. 1?
19 A. Yes.
20 Q. Okay. So they may be violence against people or
21 violence against property?
22 A. Yes.
23 Q. Okay. Can you hold me to my burden on Special Issue
24 No. 1?
25 A. Yes.
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1 Q. All right. Can you hold me to my burden, beyond a
2 reasonable doubt, on Special Issue No. 1 --
3 A. Yes.
4 Q. -- to prove that to you beyond a reasonable doubt?
5 A. Yes.
6 Q. And if I make my burden, can you answer that yes?
7 A. Yes.
8 Q. Okay. And if I don't make my burden, can you answer
9 it no?
10 A. Yes.
11 Q. Okay. Now you've already found someone guilty of
12 Capital Murder. Can you honestly answer that no if I don't
13 make my burden, knowing that you've already found him guilty of
14 Capital Murder?
15 A. Yes.
16 Q. All right. Now Special Issue No. 1, it's predicting
17 future dangerousness. Correct?
18 A. Yes.
19 Q. Can you answer that based on the evidence presented?
20 A. Yes.
21 Q. I mean, some people say, I can't -- I wouldn't be able
22 to do that. That's predicting future dangerousness. But you
23 would be able to answer that based on the evidence, correct?
24 A. That's correct.
25 Q. All right. Now Special Issue No. 1 focuses upon the
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1 character for violence of the particular individual, not merely
2 the quantity or quality of the institutional restraints put on
3 that person. And this Special Issue focuses upon the internal
4 restraints of the individual, not merely the external
5 restraints of incarceration.
6 And I think I can just sum that up. It's how
7 someone controls them self, not how the prison can control you.
8 A. Okay.
9 Q. Do you agree that -- would you agree that people in
10 prison have a right to be safe from each other?
11 A. Yes.
12 Q. Would you agree that the staff has a right to be safe?
13 A. Yes.
14 Q. Would you agree that the chaplain has a right to be
15 safe?
16 A. Yes.
17 Q. That the people that visit have a right to be safe?
18 A. Yes.
19 Q. All right. So Special Issue No. 1, the future danger
20 issue, the State has to meet its burden beyond a reasonable
21 doubt, right?
22 A. Right.
23 Q. And if we meet our burden and you answer that yes, yes
24 must be unanimous. And the reason yes must be unanimous is
25 because that's the road to the death penalty.
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1 A. Okay.
2 Q. So it requires a unanimous vote by the jurors. No --
3 if you answer it no, we failed to meet our burden, then that
4 requires ten or more jurors and the Judge will sentence the
5 Defendant to life without parole and you stop at that point.
6 A. Okay.
7 Q. Okay? But if you -- if we meet our burden and all 12
8 answered yes, then we proceed on to Special Issue No. 2, which
9 is the mitigation issue. And the mitigation issue is, I guess,
10 a safety net. It's a safety net, okay, to spare someone's
11 life. All right?
12 A. Okay.
13 Q. And you still have to have an open mind. Okay?
14 A. That's correct.
15 Q. And you must be able to consider mitigation. And you
16 can't have made up your mind about punishment at that time.
17 A. That's correct.
18 Q. Okay. Now you've already found him to be a guilty
19 capital murderer and you found him to be a future danger. Can
20 you still keep an open mind?
21 A. Yes.
22 Q. All right. So mitigation, Special Issue No. 2, says
23 whether taking into consideration all of the evidence,
24 including the circumstances of the offense, the Defendant's
25 character and background, and the personal moral culpability of
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1 the Defendant, there is a sufficient mitigating circumstance or
2 circumstances to warrant that a sentence of life imprisonment
3 without parole rather than a death sentence be imposed.
4 Now nobody has the burden of proof on this. The
5 State doesn't have the burden. Defense doesn't have the
6 burden. You just answer the question based on the evidence.
7 All the evidence.
8 A. Okay.
9 Q. And remember, the Defendant never has to bring you any
10 evidence, including mitigation.
11 A. Yes.
12 Q. Okay? So you cannot require the Defendant to ever
13 bring you anything.
14 A. Okay.
15 Q. Can you follow that?
16 A. Yes.
17 Q. And let's talk about mitigation. Mitigation evidence
18 is evidence that a juror might regard as reducing the
19 Defendant's moral blameworthiness. Not reducing his guilt, but
20 his blameworthiness. Lessening his blame.
21 MR. WOOTEN: Your Honor, we'd object to this
22 slide. For the record, it's the same slide that we introduced
23 a copy of in Defendant's Voir Dire Exhibit No. 1. We believe
24 that it violates Eddings versus Oklahoma and the Eighth
25 Amendment by misstating the law on mitigation on Capital Murder
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1 in Texas.
2 THE COURT: Overruled.
3 Q. (BY MS. ALDOUS) So it's not reducing his guilt.
4 Because you've already found him guilty, correct?
5 A. Correct.
6 Q. It's lessening his blame. Do you understand?
7 A. Yes, I do.
8 Q. Okay. Let me give you an example. Do you know -- I
9 mean, have you ever seen children that they don't have a chance
10 in life? They've got really rotten parents that don't take
11 care of them, don't do for them, don't love them. You know,
12 and you've thought I really wish someone would step in and take
13 those kids away from their parents. Never had a chance,
14 weren't raised right. That might be a situation where it
15 lessens someone's blame.
16 A. Okay.
17 Q. Some examples of mitigation -- now the law says you
18 must consider and give effect to, but there is no definition of
19 what "give effect to" means. But I would submit that it would
20 mean serious consideration. Look at it seriously. Would you
21 agree with me?
22 A. Yes.
23 Q. What one juror thinks is mitigation, another might
24 not. Okay?
25 A. Okay.
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1 Q. And so there is nothing that says that you have to
2 find something to be mitigation. Okay?
3 A. Okay.
4 Q. And then if you did find something to be mitigation,
5 then you have to decide whether it's sufficient to warrant a
6 life sentence without parole rather than a death penalty
7 sentence. Okay?
8 A. Okay.
9 Q. And some examples of mitigation -- now everybody is
10 going to have mitigation in their life. Everybody is going to
11 have done something good for somebody or everybody has been to
12 the college of hard knocks. Everybody has had a rough time in
13 life at some point or another, right?
14 A. That's right.
15 Q. So what one juror might think is mitigation may be
16 youth. Another might not. Old age may be mitigation to
17 someone, and it might not to another juror. Child abuse,
18 physical or sexual; injuries during childhood; good work
19 history; drug abuse or drug addiction; acts of kindness for
20 others; alcohol abuse; low IQ; low intellectual functioning;
21 family breakup; single parent home; intellectual issues;
22 poverty; exposure to chemicals; exposure to poisons; exposure
23 to toxins; exposure to toxic material; exposure to toxic mold;
24 mental retardation; desperation; causation. Remember we talked
25 about the causation? That can be mitigation to someone and
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1 maybe not. Lessening his blame, but not his guilt.
2 A. Okay.
3 Q. Or mercy. Someone could simply find mercy. A jury
4 can choose to give mercy.
5 A. Okay.
6 Q. Do you think that that's good?
7 A. Yes.
8 Q. And this is not everything. This is not an exhaustive
9 list. Okay?
10 A. Okay.
11 Q. So back to Special Issue No. 2, whether taking into
12 consideration all of the evidence -- and it repeatedly says all
13 of the evidence, correct?
14 A. Yes.
15 Q. Punishment and guilt/innocence. Including the
16 circumstances of the offense, the Defendant's character and
17 background, the personal moral culpability of the Defendant,
18 there is a sufficient mitigating circumstance or circumstances
19 to warrant a sentence of life imprisonment without parole
20 rather than a death sentence.
21 So that mitigation, if you find something
22 mitigating -- it could be one circumstance that you could find
23 mitigating. And if you find one circumstance of mitigation,
24 then you have to go back to see is it sufficient to warrant a
25 life sentence without parole rather than a death sentence.
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1 A. Okay.
2 Q. Now it's never going to be an excuse to the crime. It
3 could have nothing to do with the crime. Okay?
4 A. Okay.
5 Q. So it's something that would lessen the blame. Lessen
6 his blame, never his guilt.
7 A. Right.
8 Q. All right? Because we've already established that
9 he's guilty of Capital Murder. All right?
10 A. Right.
11 Q. So it would be something that would be sufficiently
12 mitigating to warrant a sentence of life imprisonment without
13 parole rather than a death sentence. Okay?
14 A. Yes.
15 Q. Could be one circumstance, could be more than that.
16 Okay?
17 A. Okay.
18 Q. Could be mercy. Okay?
19 A. Okay.
20 Q. Could you honestly answer Special Issue No. 2 based on
21 the evidence?
22 A. Yes, I can.
23 Q. Okay. If there is sufficient mitigation to lessen the
24 Defendant's blame, can you answer that yes?
25 A. Yes.
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1 Q. If there is not, can you answer it no?
2 A. I can.
3 Q. Now when you answer -- when you answer the mitigation
4 issue, if you answer no, that there wasn't sufficient
5 mitigating circumstance or circumstances to warrant a life
6 sentence without parole rather than a death sentence, then it
7 must be unanimous. The Defendant receives the death penalty.
8 A. Yes.
9 Q. And if you find that there is sufficient mitigating
10 circumstance or circumstances to warrant a life sentence, then
11 that requires ten or more jurors, and the Judge will sentence
12 the Defendant to life without parole.
13 A. Okay.
14 Q. Okay? Can you honestly answer that based on the
15 evidence?
16 A. Yes, I can.
17 Q. So can you answer Special Issue No. 1 based on the
18 evidence?
19 A. Yes.
20 Q. Can you hold me to my burden on Special Issue No. 1?
21 A. Yes.
22 Q. Can you answer Special Issue No. 2 based on the
23 evidence?
24 A. Yes.
25 Q. And you realize nobody has a burden on Special Issue
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1 No. 2?
2 A. That's right.
3 Q. The Defendant never has to bring you any evidence.
4 A. That's right.
5 Q. Now you've already found him to be a guilty capital
6 murderer, no excuse, no self-defense, no justification. He's a
7 guilty capital murderer.
8 A. Okay.
9 Q. Innocent victim.
10 A. Okay.
11 Q. And you found that he's a future danger. You found
12 beyond a reasonable doubt that there was a probability that the
13 Defendant would commit criminal acts of violence that would
14 constitute a continuing threat to society.
15 A. Okay.
16 Q. Are you still going to keep an open mind and consider
17 and give effect to mitigation?
18 A. Yes.
19 THE COURT: Ten minutes.
20 Q. And will you answer -- can you answer the mitigation
21 issue based on the evidence presented?
22 A. Yes, I can.
23 Q. So can you answer it yes if you find sufficient
24 mitigating circumstance or circumstances?
25 A. Yes.
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1 Q. Even if -- even after finding him to be a guilty
2 capital murderer and a future danger, can you answer that yes
3 if you find sufficient mitigating circumstance --
4 A. Yes.
5 Q. -- or circumstances?
6 A. Yes.
7 Q. Can you answer it no if based on the evidence -- after
8 you've found him to be a guilty capital murderer, future
9 danger, can you answer it no based on the evidence?
10 A. Yes.
11 Q. Can you answer these issues yes and no, knowing that
12 this man over here will die based on your answers?
13 A. Yes.
14 Q. All right. Now I'm going to give you a hypothetical.
15 You and 11 other jurors have just found someone guilty of
16 Capital Murder. It was a horrible, brutal Capital Murder. No
17 self-defense, no provocation from the victim, innocent victim,
18 no insanity, no excuse; and you found him guilty of Capital
19 Murder. Now after you found him guilty of Capital Murder,
20 there is two appropriate penalties, correct?
21 A. That's correct.
22 Q. Life without parole and the death sentence. Are your
23 true feelings that you will consider both?
24 A. Yes.
25 Q. And that you will keep an open mind?
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1 A. Yes.
2 Q. So you don't have your mind made up one way or another
3 after a guilty -- after you've found someone guilty, correct?
4 A. No.
5 MS. YENNE: May we have just a minute, Judge?
6 THE COURT: You may.
7 Q. (BY MS. ALDOUS) All right. Now I explained to you
8 the law on murder and Capital Murder, right?
9 A. Right.
10 Q. And I noticed in your questionnaire on page 26: Do
11 you believe there should be a death penalty? And you said,
12 Yes. It's question 144. I'm sorry.
13 A. Yes.
14 Q. And if yes, for what crimes? Premeditated murder.
15 And premeditated murder means planned.
16 A. Planned.
17 Q. Planned murder?
18 A. Yes.
19 Q. And when I explained the law to you, I mean, there is
20 no requirement of premeditation for Capital Murder.
21 A. Okay.
22 Q. Okay? So I mean, do you -- are you going to require
23 that I prove premeditation?
24 A. No.
25 Q. Okay. So somebody could form the intent on the spot?
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1 They could go into a rage and kill someone and commit a Capital
2 Murder?
3 A. Yes. That's correct.
4 Q. Okay. Now if you were governor for a day and the
5 governor had the ability -- okay? So in my theory he has the
6 ability right here in this courtroom. If you were governor for
7 a day and you had the ability to end the death penalty in
8 Texas, would you?
9 A. No.
10 Q. Okay.
11 MS. ALDOUS: Pass the juror.
12 THE COURT: Mr. Wooten.
13 MR. WOOTEN: Thank you, Judge.
14 VOIR DIRE CROSS-EXAMINATION
15 BY MR. WOOTEN:
16 Q. Is it Ms. Vanscoy?
17 A. Yes.
18 Q. My name is Jay Wooten, as the State said, and this is
19 Kerri Mallon. And at the end of the table is Mr. James Harris.
20 I wanted to ask you a little bit of follow-up on
21 the example that the State was talking to you about. I want to
22 continue with their hypothetical that you and 11 others have
23 just found -- and by the way, let me stop for a second.
24 First off, I guess you figured out by now that we
25 can't tell you the facts of the case?
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1 A. That's right.
2 Q. And I'm sure you figured out how annoying that is for
3 you because that's what we always hear. Frustrating and
4 annoying, that kind of thing.
5 Secondly, when I give you a hypothetical or the
6 State gives you a hypothetical, it's not a thinly veiled way of
7 getting around that rule. These are really hypotheticals that
8 we're just making up.
9 A. Okay.
10 Q. Because what we're trying to do is just get a feel for
11 how you feel about the topics that we're talking about.
12 So anyway, back to the hypothetical. You and 11
13 others have found beyond a reasonable doubt that this
14 hypothetical defendant has committed Capital Murder. And for
15 it to be capital, it has to be an intentional killing plus some
16 other crime like, for instance, burglary that we've talked
17 about before. So in other words, an intentional killing in the
18 course of a burglary. Are you with me?
19 A. Yes.
20 Q. You and 11 other jurors have also decided beyond a
21 reasonable doubt that it wasn't self-defense, it wasn't in
22 defense of a third party, it wasn't in defense of property.
23 The killer was not provoked in any way, and it wasn't a
24 mistake. Please also assume that the defendant was not insane.
25 Okay?
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1 A. Okay.
2 Q. What are your feelings about the death penalty for
3 that guilty murderer in that hypothetical?
4 A. I would probably find him guilty.
5 Q. Okay. What are your feelings about the death penalty
6 as an appropriate punishment?
7 A. I think the death penalty should be warranted unless
8 there is other circumstances, you know, the upbringing of the
9 person like we had talked about earlier.
10 Q. Okay. Can you tell me a little bit more about that?
11 A. Well, I guess if, you know, they -- like we talked
12 about, that they hadn't been raised correctly, they hadn't been
13 taught morals. I think that needs to be, you know, a factor in
14 the decision.
15 Q. Okay. Based on what I'm talking -- let's take -- and
16 that's later down the road. I'm trying to get to what you
17 would be feeling right after when you found this person guilty.
18 A. Okay.
19 Q. And remember, we talked about it not -- and this is a
20 list of defenses, if you will. Okay? And some other facts.
21 You know, not self-defense, not defense of a third party, not
22 defense of property, no provocation, not a mistake, and no
23 insanity. Okay? At that point -- we'll talk maybe more about
24 the other stuff later.
25 A. Okay.
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1 Q. But at that point what are your feelings about the
2 death penalty for that convicted capital murderer?
3 A. I think they should get the death penalty.
4 Q. Okay. Can you tell me why?
5 A. Well, taking of another life is -- you know, should
6 not -- you know, we don't have a right to do that.
7 Q. Okay. Now let me stop and ask you this question. You
8 know that if there is a Capital Murder, obviously, a life has
9 been taken. So any time, you know, a jury, a lawful jury,
10 convicts someone of Capital Murder -- let's just assume that no
11 jury would ever convict anybody of Capital Murder if a life
12 hadn't been taken. Can we assume that?
13 A. Yes.
14 Q. Okay. So I guess my question to you is since a life
15 will have been taken in every situation where a Capital Murder
16 has been found to be guilty -- or found to be proven, does that
17 mean that every time -- and I'm just asking your opinion. Does
18 that mean that every time you would be looking at the death
19 penalty for that?
20 MS. ALDOUS: Your Honor, I'm going to object to
21 the form of the question. It's confusing. It's suggesting,
22 versus setting out the penalty range, too.
23 THE COURT: Overruled. You can answer that
24 question.
25 A. Okay. Could you repeat it, please?
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1 Q. Yeah. Based on the hypothetical that we had, and
2 given that in every Capital Murder if a person has been found
3 guilty, a life will have been taken, and based on your prior
4 answer saying that the death penalty would be warranted because
5 a life had been taken, what I'm asking you is since any time
6 you would have -- any time you're sitting on a jury and
7 somebody has been found guilty of Capital Murder, would that
8 mean that for you that the penalty would always be the death
9 penalty?
10 A. I think I would need to hear about the situation. You
11 know, the case itself and exactly what happened. I know that,
12 you know, if they are found guilty, I would have the death
13 penalty. I would be thinking about that. But I would
14 definitely want to have heard, which I would have, all the
15 evidence from both sides.
16 Q. Okay. And for me what I'm trying to get to is the
17 timing of what we're talking about. I'm talking about at the
18 point where you found the person guilty but you have yet to
19 move into the punishment stage. So when you say you will need
20 to hear all the evidence, are you talking about you'd need to
21 hear all the evidence for the whole thing or at that point?
22 A. For the whole thing.
23 Q. Okay. So when earlier when you said that you felt the
24 death penalty would be warranted if a life was taken, can you
25 tell me more about that?
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1 A. Well, if a life is taken and, you know, the evidence
2 shows that he or she had really done that, I would
3 definitely -- I could give the death penalty.
4 Q. Okay. And I understand. And, of course, you'd have
5 to be able to consider the full penalty range to be a death
6 qualified juror.
7 A. Yes. That's right.
8 Q. What I'm trying to figure out is would you
9 automatically -- or would you think that only the death penalty
10 would be warranted if a life was taken?
11 A. No.
12 Q. Okay. Can you tell me why?
13 A. I just think there is just circumstances about the
14 situation that caused -- you know, caused the death, what was
15 going on. And then I would either think it was death penalty
16 or life in prison.
17 Q. Okay. Can you tell me what would be important to you
18 when you said you'd have to know what had been going on?
19 What's in your mind when you say that?
20 A. Well, I guess if somebody came in and, you know,
21 killed two people just because, you know, they didn't like them
22 or something, to me the death penalty would be that because
23 they are taking a life without reason.
24 Q. Okay. So if you were in a situation where someone had
25 been -- committed -- and you understand that one of the ways to
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1 commit Capital Murder is by killing more than one person. So
2 if you were seated on a Capital Murder jury and it was shown
3 that two people had been killed, would that mean that for you
4 the penalty for that crime would be only death?
5 A. Yes.
6 Q. Okay. Can you think of any other situations where you
7 would feel that way?
8 A. Not that I can think of.
9 Q. Well, let's go -- let me go back to what you were
10 talking about before. You said for no reason. And when you
11 say somebody had killed somebody for no reason, what were you
12 thinking about when you said that?
13 A. Okay. For no reason is if somebody came in and had a
14 gun and came in and saw two people standing there and then
15 decided to kill them and then decided after that maybe they
16 wanted to rob them after -- or whatever, you know. Get them
17 out of the way, and then commit this unlawful act.
18 Q. Okay. And under those circumstances that you just
19 said, would that be an automatic death penalty punishment for
20 you?
21 A. To me it would.
22 Q. Let me ask you -- now when we talk about death penalty
23 views -- and I never know what to call that when I'm talking
24 about somebody's death penalty views. And we're just asking
25 you about your views, by the way. So we'll just call them your
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1 death penalty views. Do you know about how long you've felt
2 that way? I mean, has it been your whole life or --
3 A. No, not my whole life. No. Probably the last 20
4 years maybe.
5 Q. All right. And are these feelings that you feel
6 strongly about?
7 A. Yes.
8 Q. Okay.
9 MR. WOOTEN: May I have a moment, Judge?
10 THE COURT: You may.
11 Q. Ms. Vanscoy, I want to talk to you a little bit about
12 some of the things that the District Attorney's Office talked
13 to you about. For instance -- and I want to put some things
14 into context, if I can, for you -- or give you a context. I
15 don't want to put them in context. I want you to put them into
16 context because I'm just trying to figure out how you feel.
17 A. Okay.
18 Q. And what I always tell is this little example that,
19 you know, I just sent a kid off to A&M. He's 18 years old.
20 Never been away from Mom and Dad. I talked to him on the phone
21 and he tells me he has his classes set up and they all start at
22 8:00 o'clock in the morning. Okay? And I say to him, hey, you
23 know, do you think that's a good idea?
24 And he says, oh, yeah. I'd never miss class.
25 And I go, okay.
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1 And then later when I went up and visited him,
2 because we took some stuff up to him, I sat down and we talked
3 a little bit about college life and about being away from Mom
4 and Dad for the first time and about how that sometimes maybe
5 people go out late at night and don't come home exactly when
6 they had planned and that, you know, if you come home at 3:00
7 a.m. sometimes maybe it's hard to get out of bed and go to
8 class.
9 And what I was trying to do is put it in context
10 for him. Because he knew what the answer that he wanted to say
11 was, which was, I'm going to do the right thing. And that's
12 what came glibly out of his mouth when I was talking to him on
13 the phone. Because, you know, he's not going to say to me,
14 well, Dad, you're right. I'm probably going to miss a lot of
15 those classes. Because he's not going to say that because it's
16 not the right thing to do, if you will.
17 But after, talking to him for a while and talking
18 about human nature, then he started kind of putting it into
19 context. And he changed some of those classes. A couple of
20 them he couldn't change. Some of them he changed. Because I
21 think what he was saying is, you know, I don't know for sure
22 that I'll get up every morning at 7:00 o'clock, being in
23 College Station free from Mom and Dad for the first time.
24 And what I'd like to do is talk to you a little
25 bit. You know, the State covers a whole lot of ground and
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1 crams, like I said, two or three law courses into an hour when
2 they talk to the witness. It's true. It's absolutely -- I
3 promise you if you took a class on Capital Murder, it would be
4 two semesters in law school; and they are giving you the whole
5 thing. Okay?
6 A. I didn't have trouble understanding any of that.
7 Q. Well, maybe you need to go teach.
8 But a lot of those questions, they don't have the
9 opportunity to ask you to really think about them --
10 A. Right.
11 Q. -- because they are covering a lot of territory. And
12 I'm not saying that anything is going to change, but I do want
13 to put it in context for you.
14 Like for instance, I want to ask you about the
15 context of, you know, if you have a -- you know, we find when
16 we talk to jurors after trials, that kind of thing -- and this
17 isn't just in Capital Murder. In fact, you know, I haven't
18 been doing Capital Murder my whole career. You know, we talk
19 to people and a lot of times what jurors say or they say in
20 voir dire is, you know, if somebody accused me of "X," then,
21 you know, for me -- they are talking about themselves. And we
22 also know that what we do as humans is we transfer onto other
23 people what we think they should do. Does that make sense?
24 A. Yes.
25 Q. And so what they say is, you know, if I was innocent,
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1 I would stand up and tell everybody every chance I got that I
2 did not do it. And they seem to feel more strongly the worse
3 the allegation would be. Like if it was a littering charge,
4 okay, nobody really cares. Maybe you fight that, maybe you pay
5 the ticket if you think you didn't do it. It's littering.
6 But if it's an allegation, you know, some type of
7 abuse of a child or in this situation a Capital Murder, which
8 is our most serious crime, then, you know, I think it's
9 reasonable to think that at least some hypothetical juror out
10 there would think, you know, if that were me, I would tell
11 everybody I didn't do that if the State indicted me and said
12 that I did. Because let's face it, once you're indicted,
13 you're being accused of that crime.
14 A. That's right.
15 Q. And the fact that what they would do is not a problem;
16 but there always seems to be a component to it of if I didn't
17 do it, I would stand up and tell everybody that I didn't do it.
18 And so with that transference we talked about, it puts them in
19 a situation where perhaps they think if someone is not
20 testifying, that maybe that means they did do it. Maybe they
21 just don't feel comfortable standing up lying to an entire
22 courtroom full of people, et cetera, et cetera.
23 And what I would like to say, first off, is you
24 know, the law will tell you that you can't consider the fact
25 that the Defendant hasn't testified for any reason at all. You
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1 basically just have to take it totally out of your mind. You
2 know? And in a Capital Murder trial, I want to put you in that
3 jury room where things are heated and where people are trying
4 to do the right thing and they realize how serious a case it
5 is. Do you think you could follow that instruction and not
6 consider it if the Defendant didn't testify?
7 A. Yes, I can.
8 Q. Okay. And I want to also take you to the
9 lesser-included that the State talked about. You know, it's a
10 Capital Murder; and for some reason the lesser-included charge
11 of murder has occurred. Okay? Or that's what the jury has
12 found the Defendant guilty of, of the lesser-included of
13 murder. So we started out at Capital Murder, and then we end
14 up with a murder. And of course, to be able to be on this
15 jury, you would have to be able to say -- you know, to answer
16 questions that would cover that eventuality. It probably won't
17 happen, but the possible eventuality. Does that make sense?
18 A. Yes.
19 Q. And what I need to -- and as you know from the State
20 talking to you, is that murder -- you know, we love our juries
21 in Texas. We give them wide latitude. And I like that. I
22 like that. Because if you tell the jury that they pick between
23 giving somebody 1 year and 2 years, that's not really a jury
24 system, is it?
25 A. That's right.
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1 Q. You know, if you give them 5 to 99, now that's doing
2 it right. That's my opinion.
3 But in this situation you will have to be able to
4 envision yourself on a murder, reduced from Capital Murder, to
5 be able to consider 5 years as an appropriate punishment.
6 Could you do that?
7 A. Yes, I could.
8 Q. Okay. And then the last one I want to talk to you
9 about is the confession part. And you know, I've said this
10 before talking to people and I'll say it again. I can't think
11 of a worse pickle to be in if you're a juror. But that's just
12 the way it could lay out in a case where -- to figure out if
13 the police did the right thing, gave the right warnings, you
14 have to listen to the confession. That's the only way to know
15 whether they did it or not. So there is no way around that
16 part. And what I want to point out to you is -- first off, I
17 know now you know that these aren't just simple votes that
18 people take in any part of this trial like you would at a club
19 meeting as to whether they want to have a fish fry this year.
20 You know?
21 A. Yeah.
22 Q. For instance, you don't go in the back, as you know,
23 and say, okay. Who thinks he did it?
24 It doesn't work that way. You look at -- like
25 the State said, you look and see if they've proven each and
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1 every element beyond a reasonable doubt. Okay?
2 A. Okay.
3 Q. So that's this part. And that's the part we try to
4 get people to follow because what common sense cries out for is
5 the fish fry vote. Who thinks he did it? And we think about
6 it. You know, if you were allowed to talk to your neighbors
7 while you were on any trial, at some point they would say to
8 you, do you think he did it? That's human nature. Or she did
9 it. I'm being sexist. But, of course, the good news is you
10 can't talk to your neighbors, so that doesn't happen. But
11 that's what they would ask. That's what I would ask if I was
12 allowed to talk to a juror and I wasn't involved in the case.
13 So over here is did he do it, which is the human
14 nature part. And over here is did the State prove each and
15 every element beyond a reasonable doubt. See, that sounds like
16 a lawyer wrote that, right?
17 But to judge the confession and the warnings on
18 confession, you've had to hear the confession. And it's
19 videotaped, and so you're hearing the person that's in the
20 courtroom with you day-in and day-out talking about this
21 confession. And I know -- and talking about the killing. And
22 I know the State in their example -- and I'll borrow it from
23 them. You know, it's a horrible crime. It's explicit details.
24 Perhaps he enjoyed doing it. Perhaps it was for no reason.
25 Just a heinous recounting of this crime.
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1 And so you go back in the room and your human
2 part of your brain is there is no doubt that he, quote unquote,
3 did it. But over here is your juror part of your brain. And
4 you have to say to yourself, did the State prove each and every
5 element of this crime to me beyond a reasonable doubt? And if
6 there is plenty of other evidence, then when the Judge says if
7 you believe that a warning was left out, you're supposed to
8 wholly disregard the statement or the confession, then that's
9 fine because there is plenty of other evidence. So it doesn't
10 really put you in that pickle.
11 But let's say that up until, you know, the
12 confession was taken, the police didn't really know what was
13 going on. That happens sometimes. You know, so there is some
14 corroborating evidence but certainly not anything to you that
15 will get them beyond a reasonable doubt without that
16 confession. But yet, you believe in your heart of hearts that
17 it's clear to you that a warning was left out, that it was
18 improperly taken. You know, I want to put you in that jury
19 room where you're sitting there knowing how serious a case this
20 is, knowing that there is a person who a life was taken, by
21 definition. Could you wholly disregard that confession even if
22 it meant -- well, wholly disregard that confession and under
23 that hypothetical vote for not guilty?
24 A. I believe I could.
25 Q. Okay. Well, and this is what we always talk about
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1 being lawyers because "I believe I could" sometimes doesn't
2 quite cut it, although I understand that's the way you really
3 feel. And I appreciate it. But I need to know whether you
4 would or whether you would not.
5 A. I probably would.
6 Q. Okay.
7 A. I say probably. I will.
8 Q. Okay. So you would?
9 A. Yes.
10 Q. Okay. Now I want to talk to you a little bit about
11 mitigation.
12 MR. WOOTEN: May I have a moment, Judge?
13 THE COURT: You may.
14 Q. All right. My co-counsel is pointing out to me that I
15 probably should go through the Special Issues in order --
16 because it becomes -- if I talk about Special Issue 2 first and
17 then talk about Special Issue 1 just because I thought about
18 something I want to ask you about Special Issue No. 2, it
19 starts giving the wrong impression on how this goes. So she's
20 right. Let's go in order.
21 I want to talk to you a little bit about future
22 danger. And we call that Special Issue No. 1, the future
23 danger issue. You're familiar that this is the same thing that
24 the State put up?
25 A. Yes.
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1 Q. It's just a different color. Okay. So I want to make
2 sure you understand we're not dealing with different issues.
3 These are the same issues. And as far as I know, they say the
4 same thing.
5 Now do you understand, first off, that -- I want
6 to take you to the example you were talking about. Let's say
7 that two people have been killed for whatever this phrase means
8 to you. And the only reason I say that is because I don't want
9 to put my words in there. I want to use your words. So when I
10 say whatever that means to you, I don't mean that in a flip
11 way. I mean whatever it means to you. But you had said for no
12 reason. So whatever that means to you, that's the hypothetical
13 I'm dealing with now.
14 A. Okay.
15 Q. That two people have been killed and that was the
16 aggravating circumstance that made it a Capital Murder and to
17 you there was -- the crime was committed for no reason.
18 And you've seen -- you've gone through a long and
19 lengthy guilt/innocence trial. I don't know how long, but
20 certainly I think we can all agree this is not something that
21 gets wrapped up in three days, right?
22 A. That's right.
23 Q. Okay. And because the State has a very high burden,
24 they are going to bring as much evidence as they can and they
25 are not going to ask people questions for ten minutes and then
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1 let them off. You know, they are going to do a nice, good,
2 thorough job, right?
3 A. That's right.
4 Q. And since someone -- I don't think I'm letting the cat
5 out of the bag to say that if someone is dead, that you're
6 going to hear from a medical examiner of some kind. Whatever
7 you want to call him. That's what we call him around here.
8 Some people call them other things on TV. And that person is
9 going to bring -- it's going to be the person that did the
10 autopsy. Because remember, you can't have Capital Murder
11 without someone having died by violence. So we know that there
12 is going to be an autopsy, someone testify as to an autopsy.
13 And I don't think, once again, I'm letting the cat out of the
14 bag to say that there will be autopsy photos and whatever crime
15 photos that there are. Obviously probably not pictures -- you
16 know, not to be purposely gory or gross, but you know in the
17 questionnaire we asked you how you felt about gruesome --
18 gruesome is the word we used. And that's because very often
19 there are what somebody might term gruesome photos, gruesome
20 evidence that's brought to the jurors, right?
21 Okay. So this hypothetical case where two people
22 are dead for no reason and you've got all these gruesome photos
23 and you've had to live with that crime for a while and you know
24 that more likely than not, you know, there is survivors,
25 victims, families, that kind of thing. And so you found this
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1 person guilty of this crime we're talking about, of the Capital
2 Murder that I just spoke of. And now what I need to know is --
3 the State asked you if you could keep an open mind when you
4 went to the future danger question. And that's something that
5 you know, once again, like my son, you know, are you going to
6 go to class? Sure, I'm going to go to class. But what I want
7 to do is put you in that jury room where -- or put you in that
8 trial now in punishment when you've heard all that. And
9 remember, this is a hard thing for them to do to prove future
10 danger. It's beyond a reasonable doubt. Not impossible. It's
11 not beyond all doubt. But they will tell you themselves it's a
12 high burden. It's the highest burden we have in law.
13 Can you see yourself, after hearing all that,
14 after hearing that this murder that we've talked about -- and
15 whatever it means to you, no reason, can you envision yourself
16 answering Special Issue No. 1 no?
17 A. Yes.
18 Q. Okay. And then now that you've -- let's say that --
19 let's move forward a little bit. You found -- and if we move
20 forward, then we know -- if we move forward to Special Issue
21 No. 2, we know how Special Issue No. 1 went, correct?
22 A. Correct.
23 Q. Okay. If we get to Special Issue 2, basically what's
24 happened is all 12 of the jurors, including you, have now found
25 future danger unanimously, right? Because that's how we move
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1 on. You know, ten the other way, you go the other way. We
2 stop. But we know if you're talking about Special Issue No. 2,
3 we know that you've had a unanimous yes to Special Issue No. 1.
4 Does that make sense?
5 A. Yes.
6 Q. And you personally have found yes because you're one
7 of the jurors.
8 A. That's right.
9 Q. All right. So now we're at Special Issue No. 2 and
10 now we're back to the fact that here's this crime, two people
11 dead, no reason to you, and the person is -- you've found
12 beyond a reasonable doubt that there is a probability that that
13 defendant would commit criminal acts of violence that would
14 constitute a continuing threat to society.
15 Now my question is at that point is there
16 anything that you can envision that will make you answer
17 Special Issue No. 2 yes?
18 A. Yes.
19 Q. Okay. And I want to talk to you a little bit about
20 mitigation. We know that when we talk about, you know -- you
21 know, the law uses the word "consider" a lot. Like you're not
22 supposed to consider the fact that the Defendant doesn't
23 testify if he doesn't testify, right? And we also know that
24 it's just a word we use a lot. When we talk about the full
25 range of punishment, we say could you consider the full range
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1 of punishment. Well, in mitigation we actually have a little
2 more there. Now I can't tell what you it means because there
3 is not technically a definition, but for mitigation the juror
4 must consider and give effect to mitigation. Does that make
5 sense to you?
6 A. Yes.
7 Q. Okay. So I want to talk to you a little bit about
8 that. Number one, each juror decides for them self what is
9 mitigation. In fact, the law calls it a personal moral
10 judgment. That's not true on these other verdicts. But on
11 this verdict -- when I say "verdict," I mean your verdict, your
12 decision.
13 A. Right.
14 Q. They don't call it that. They call the -- the other
15 ones they call them other things. They call them just a
16 verdict or a vote or a decision. But in this situation they
17 call it a personal moral judgment. Some cases call it a
18 reasoned moral response. Okay? Does that make sense to you?
19 A. Yes.
20 Q. And what I would say to you is that given that it's a
21 personal moral judgment, would you agree with me that if I said
22 to you that, to me, a personal moral judgment was, you know,
23 where I went to church or whether I went to church, would that
24 make sense to you?
25 A. Yes.
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1 Q. Okay. Or how many children to have. Does that make
2 sense to you?
3 A. Yes.
4 Q. Okay. And so when I say to you that each juror
5 decides for them self, it's true that each juror decides for
6 them self anytime they are given a decision to be made in a
7 case like this. But moreover, more so, in Special Issue No. 2.
8 I also want to tell you that each vote for
9 life -- and of course, that's what a yes is if you find a
10 sufficient mitigating circumstance. Number one, it can only be
11 one if you want it to be. If you'll notice, it says is there a
12 sufficient mitigating circumstance and then it says or
13 circumstances. So it can just be based on one thing. Does
14 that make sense?
15 A. Yes.
16 Q. Okay. And you're okay with that?
17 A. Yes.
18 Q. All right. Also, each -- because it's a personal
19 moral judgment, each juror -- let's say that each juror -- we
20 know that in this hypothetical we're talking about that every
21 juror found -- answered this question yes and every juror told
22 us that they all decided that there was -- they only based it
23 on one mitigating circumstance. Okay? Are you with me?
24 A. Yes.
25 Q. There can be a list of 12 different ones because it's
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1 a personal moral judgment and each one of those people, they
2 don't have to share the opinion of that other person. They can
3 all disagree as to what was mitigating to them. Does that make
4 sense?
5 A. Yes.
6 Q. Okay. Also, the law tells us that a juror can answer
7 Special Issue No. 2 based entirely on mercy alone. What do you
8 think about that?
9 A. Well, I guess you could, you know, look at mercy and
10 decide the person would probably do better by getting a certain
11 number of years rather than death.
12 Q. Okay. Well, and let me -- and I'm not fussing at you.
13 It's my job to correct these little things as they come
14 through. I think I understand what you're saying, but you
15 understand there is only two. So it wouldn't be a certain
16 number of years because when somebody gets life without
17 possibility of parole, what -- they do, I guess, ultimately get
18 a number; but it's based on how long they live. Does that make
19 sense?
20 A. Yes.
21 Q. Okay. And this is something I always mean to say and
22 I always forget to say is back a long time ago -- not even that
23 long ago. But awhile back all we had was the death penalty,
24 and then it was life but there was always a possibility of
25 parole. So a lot of people would say, well, you know, it's not
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1 really life. And so -- and that made people -- well, it upset
2 a lot of people. I guess I understand why. You give somebody
3 life and later on they are out running around.
4 But that's not true anymore. I want to make sure
5 you understand that. And I'm not giving you the lawyer speech
6 now. I'm telling you real speech, which is if you get
7 sentenced to life without possibility of parole, you're going
8 to die in prison.
9 A. Yes.
10 Q. Okay?
11 A. I understand.
12 Q. So based on your answer before, you said that -- let
13 me make sure. Can I correct it to the point where you would
14 say sometimes based on mercy alone someone might -- you might
15 give somebody life in prison other than the death penalty?
16 A. Yes.
17 Q. And not a number of years?
18 A. Yes.
19 Q. Okay. The other thing I want to point out is
20 mitigation. And I think that the D.A.'s Office does a pretty
21 good job of throwing up lots of different types of mitigation
22 up there, and I know they always tell it's not an exhaustive
23 list. It's not. It can be anything. Anything that to the
24 juror is mitigating and they find sufficient. That's why they
25 throw so many things up there. And it can have really -- well,
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1 if you use the State's example of the person being raised so
2 badly and neglected, obviously, that's not connected
3 necessarily to the actual crime, right?
4 A. That's right.
5 Q. I mean, you could possibly connect it up; but you can
6 see a situation where it would have nothing to do with it. And
7 my point is that's because there doesn't have to be a link or a
8 nexus back to the actual Capital Murder. So -- and I think you
9 understand. Obviously, they say in there, I think, good work
10 history. Well, good work history -- you know, the crime may
11 not have occurred at work. May not have anything to do with
12 work. This good work history might not have been even going on
13 when this crime was committed. I think I probably made that
14 point.
15 A. Yes.
16 Q. Okay. Now the other thing that's odd about Special
17 Issue No. 2 is there is no burden of proof. And that's really
18 very odd for us. Usually there is a burden. Like on Special
19 Issue No. 1, you understand the burden is on the State. And
20 you understand how high their burden is. Same thing on the
21 guilt/innocence. I know you understand the burden is on them
22 and you understand how high that is. And by the way, both
23 those burdens are very high; and I want to make sure you
24 understand or you agree with me that the burden on
25 guilt/innocence is the same burden on future danger, right?
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1 A. Yes.
2 Q. Okay. But when it gets to Special Issue No. 2, there
3 is no burden, which is odd. And I guess what I want to make
4 sure is would you require the Defendant or the defense to bring
5 you mitigation to answer this issue?
6 A. No.
7 MR. WOOTEN: May I have a moment, Judge?
8 THE COURT: You may.
9 Q. All right. Ma'am, I want to talk to you a little bit
10 about mitigation. You know, what mitigation says -- and we've
11 talked about it -- is that you have to be able to consider and
12 give effect to mitigation to be qualified on a jury like this.
13 Could you consider and give effect to low
14 intellectual functioning as mitigation?
15 A. Yes.
16 Q. Could you consider and give effect to drug addiction
17 as mitigation?
18 A. Yes.
19 Q. Could you consider and give effect to desperation as
20 mitigation?
21 A. Probably not.
22 Q. Okay. And when you say probably, does that mean no?
23 A. No. I'm sorry, yes.
24 Q. And what about causation as mitigation? You know,
25 like the State talked about the fire example. And I'm --
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1 obviously, if they used -- you know if they use that example,
2 it's not the facts of this case.
3 A. Yes.
4 Q. Because it would be improper. So you know that. But
5 I'm going to go ahead and use their example because I think
6 it's a good example. Would you consider a causation situation
7 like that? Could you consider and give effect to that as
8 mitigation?
9 A. No.
10 Q. Now when we talk about this mitigation, where would
11 you -- as far as the way this goes, where would you -- I know
12 it says taking into consideration all the evidence, including
13 the circumstances of the offense, Defendant's character and
14 background, personal moral culpability of the Defendant, where
15 would you expect the mitigation to come from?
16 MS. ALDOUS: Your Honor, I'm going to object.
17 May we approach on this?
18 THE COURT: You may.
19 (The following discussion was held at the bench.)
20 THE COURT: We're at a bench conference. The
21 venire person cannot hear.
22 MS. ALDOUS: Judge, this question is misleading
23 to the juror. It's a deliberate backdoor attempt to get her to
24 say that she can't follow the law. She repeatedly said that
25 she would not require the defense to produce any evidence at
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1 all, that they don't have a burden on Special Issue No. 2, and
2 that neither party has a burden.
3 MR. WOOTEN: Actually, Judge, the reason I'm
4 asking this question is because what a juror said yesterday or
5 the day before. Because they actually said that and it
6 occurred to me that, I mean, that's what the juror said. It's
7 not a backdoor attempt. I'm asking her if she assumes that
8 we're going to bring it, then that would be putting the burden
9 on us.
10 MS. ALDOUS: Judge, he also just asked her would
11 you require them to produce any mitigation evidence, and she
12 said no. And now they are attempting to --
13 THE COURT: So what's your legal objection?
14 MS. ALDOUS: That the question is confusing to
15 the juror and --
16 MS. YENNE: Additionally, Your Honor --
17 THE COURT: One lawyer.
18 MS. ALDOUS: And there may or may not be
19 mitigation in a case depending on the evidence.
20 MR. WOOTEN: Judge, it's not a trial. There is
21 no asked and answered in voir dire.
22 THE COURT: Okay. I'm going -- I'm going to go
23 ahead and sustain the objection.
24 (Bench discussion concluded.)
25 MR. WOOTEN: We pass the juror, Judge.
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1 THE COURT: All right. Ms. Vanscoy, if you would
2 just step down, the bailiff will show you out to the walkway.
3 We'll be back with you in a few minutes. Just remember all the
4 instructions I've previously given you.
5 VENIRE PERSON: Okay.
6 (Venire person out.)
7 THE COURT: We're continuing on the record. The
8 venire person has left the courtroom.
9 Present Ms. Vanscoy to the State for challenge
10 for cause.
11 MS. ALDOUS: None.
12 THE COURT: Present Ms. Vanscoy to the defense
13 for challenge for cause.
14 MR. WOOTEN: Yes, Judge. We have some challenges
15 for cause. We believe that Ms. Vanscoy is a -- what we call an
16 ADP juror, an automatic death penalty juror. And the following
17 examples will be based on the following legal precedent: Due
18 process, United States 5th and 14th Amendments; Texas Article
19 1, Section 13 and 19; Code of Criminal Procedure 1.04.
20 Effective assistance of counsel, United States
21 6th and 14th Amendments; Texas Article 1, Section 10; Code of
22 Criminal Procedure 1.051.
23 Cruel and unusual punishment, United States 8th
24 and 14th Amendments; Texas Article 1, Section 10, 13, 18 and
25 Code of Criminal Procedure 1.09.
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1 The right to an impartial jury, United States 6th
2 and 7th Amendments; Texas Article 1, Section 10 and 15; Code of
3 Criminal Procedure 1.05, 1.12, 35.16 and 35.17.
4 Code of Criminal Procedure 35.16(c)(2), that the
5 juror has a bias or prejudice against any of the law applicable
6 to the case on which the Defendant is entitled to rely, unable
7 to consider the full range of punishment.
8 Also, under Morgan versus Illinois, Wainwright
9 versus Witt, Cumbo versus State, Pierce versus State, Cuevas
10 versus State. And those are the precedent, Judge.
11 The juror stated that -- after I asked her what
12 her feelings would be after guilt and after I did the
13 hypothetical questions, she said -- and asked her what were her
14 feelings about the death penalty, she said, quote, "He should
15 get the death penalty," end quote. And I believe she also
16 said -- and I think that is a quote -- taking of another life,
17 we don't have the right to do that.
18 Also, under -- that when -- that the death
19 penalty is warranted when a life is taken and that the evidence
20 shows that the Defendant really did it, I could give the death
21 penalty.
22 Also, the juror stated that if you -- if a
23 person -- if a hypothetical defendant had killed two people
24 because he didn't like them, to me that's the death penalty.
25 Also, under a question, if two people were killed
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1 for you only death? She said, yes.
2 Also, I believe as to a question she said and if
3 there was no reason -- and she said in response to a question,
4 Well, if a person took a gun and saw two people and for no
5 reason decided to kill them and then rob them after that, it
6 would be the death penalty. And I asked her would that be an
7 automatic death penalty? And she said, yes.
8 Also, Judge, we believe that Ms. Vanscoy is what
9 we call mitigation impaired. I believe that she cannot
10 consider and give full -- consider and give effect to
11 mitigation as to be qualified on this jury. That's pursuant to
12 due process, United States 5th and 14th Amendments; Texas
13 Article 1, Section 13 and 19; Code of Criminal Procedure 1.04.
14 Effective assistance of counsel, United States
15 6th Amendment; Texas Article 1, Section 10; Code of Criminal
16 Procedure 1.051.
17 Cruel and unusual punishment, United States 8th
18 Amendment; Texas Article 1, Section 10, 13 and 18; and Code of
19 Criminal Procedure 1.09.
20 Penry versus Lynaugh, Morgan versus Illinois,
21 Tennard versus Dretke, Eddings versus Oklahoma, Lockett versus
22 Ohio, and Boyde versus California.
23 I asked her if she could consider and give effect
24 to desperation. She said, no. And also could she consider and
25 give effect to causation. She said, no.
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1 Also, I believe that the Court observed
2 Ms. Vanscoy's demeanor in answering the question about the
3 confession. I do believe she said ultimately that she could
4 disregard the confession, but I would bring up to the Court's
5 attention how much trouble she had answering that question and
6 her demeanor, which I know the Court took notice of.
7 For all those reasons we believe that she is not
8 qualified and has disqualified herself through her answers, and
9 we'd ask that you grant our challenge for cause.
10 THE COURT: Does the State wish to respond?
11 MS. ALDOUS: Yes, Your Honor. As to defense
12 counsel's referral -- reference to Ms. Vanscoy being an
13 automatic death penalty juror, I believe the record speaks
14 exact opposite of that. She stated to defense counsel during
15 his question she'd consider the whole thing. And I believe
16 what her words were -- she was trying to tell him that she
17 would consider all of the evidence in both guilt/innocence and
18 punishment stage is what I believe she meant by that. And she
19 would listen to all of it.
20 On State's questioning she said she could follow
21 the law. She would listen to all the evidence, the evidence in
22 guilt/innocence and evidence in punishment. She would not have
23 her mind made up after guilt/innocence. She would not have her
24 mind made up after Special Issue No. 1, finding a future
25 danger. She would still not have her mind made up and she
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1 would consider and give effect to mitigation.
2 She also said she could answer Special Issue
3 No. 1 no, even after finding someone guilty of Capital Murder.
4 She said that she could -- if after finding someone guilty of
5 Capital Murder and finding them to be a future danger, she
6 could listen, consider and give effect to mitigation; and if it
7 was sufficient, find there to be sufficient mitigating
8 circumstances and answer Special Issue No. 2 yes.
9 Also, the circumstances of the crime itself alone
10 are sufficient to find someone a future danger. I believe the
11 caselaw -- there is a case out there that says Special Issue
12 No. 1 can be answered with a yes based on the facts of the
13 offense alone.
14 And in response to defense counsel's questioning
15 on Special Issue No. 1 and on the hypothetical, she did say
16 that she can answer Special Issue No. 1 no. She also said that
17 she can answer special -- she could find sufficient mitigation
18 in Special Issue No. 2.
19 As for not considering a certain type of thing
20 mitigating, Morrow versus State, which is 910 S.W.2d 471, says
21 that you're not challengeable for cause just because you can't
22 consider a particular variety of mitigation, a particular thing
23 being mitigating, which is what we have here. What one juror
24 might find mitigating, another may not -- may not consider it
25 to be mitigation.
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1 She repeatedly said that she would follow the
2 law. And when given specific instances, she said she would
3 follow the law.
4 Defense counsel's hypothetical about how do you
5 feel about the death penalty after you found someone guilty, I
6 believe, is confusing to jurors. I believe it only gives them
7 one option, and I don't think just a general -- and she also
8 clarified in her response to him that she would listen and
9 consider all the evidence. And that's what she volunteered.
10 She said repeatedly she needs to hear all the
11 evidence for the whole thing. She would not have her mind made
12 up automatically at any phase. She said she could -- and I
13 believe on the confession she made it clear on the record that
14 she would disregard it if she felt that the police did not
15 comply. I don't think that she had that much trouble with it,
16 as other jurors have had trouble. She seemed to understand it
17 and said she would disregard it and find him not guilty.
18 And she also said she would never require the
19 defense to bring them any evidence.
20 THE COURT: All right. I did observe her
21 demeanor and the responses that she gave to all the questions,
22 including the second follow-up on the hypothetical dealing with
23 the Special Issues 1 and 2, and I am going to deny the
24 challenge for cause.
25 Does -- I'll pass her to the State for a
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1 peremptory challenge.
2 MS. ALDOUS: No, Your Honor.
3 THE COURT: Pass her to the defense for
4 peremptory challenge.
5 MR. WOOTEN: Yes, Judge. We would exercise one.
6 But let me talk to my client.
7 THE COURT: All right.
8 MR. WOOTEN: Yes, Judge. I spoke with my client,
9 and we would exercise a peremptory strike.
10 THE COURT: All right. I will then grant your
11 Peremptory Challenge No. 8.
12 All right. Would you ask Ms. Vanscoy to come
13 back in?
14 (Venire person in.)
15 THE COURT: We are continuing on the record.
16 Ms. Vanscoy has now reentered the courtroom.
17 Ms. Vanscoy, at this time I am going to excuse
18 you from any further jury service in this case. But before I
19 do that, I want to thank you very, very much for your taking
20 the time to come up here for three days to answer a long
21 questionnaire, to sit and very thoughtfully -- and I think very
22 considerately -- give answers to all these questions. They are
23 not easy questions that are asked.
24 VENIRE PERSON: That's right.
25 THE COURT: And, you know, what makes our system
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1 be in recess until you get back.
2 (A short recess was taken.)
3 THE COURT: All right. We're back on the record.
4 The record will reflect that counsel for the State, counsel for
5 the defense, the Defendant are back in the courtroom.
6 Mr. Wooten, have you and your client had
7 sufficient time to visit?
8 MR. WOOTEN: Yes, Judge, we have.
9 THE COURT: All right. Are you ready to proceed?
10 MR. WOOTEN: Yes, sir.
11 THE COURT: All right. I would present
12 Mr. Martinez to the State for any challenges for cause.
13 MS. YENNE: None, Your Honor.
14 THE COURT: Present Mr. Martinez to the defense
15 for any challenges for cause.
16 MR. WOOTEN: Yes, Judge. Judge, based on due
17 process, United States 5th and 14th Amendments; Texas
18 Article 1, Section 13 and 19; Code of Criminal Procedure 1.04.
19 Effective assistance of counsel, United States
20 6th and 14th Amendments; Texas Article 1, Section 10; Code of
21 Criminal Procedure 1.051.
22 Cruel and unusual punishment, United States 8th
23 Amendment; Texas Article 1, Section 10, 13 and 18; Code of
24 Criminal Procedure 1.09.
25 Right to an impartial jury, United States 6th and
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1 7th Amendments; Texas Article 1, Section 10, 13 and 15; Code of
2 Criminal Procedure 1.05, 1.12, 35,16, 35.17.
3 Also, pursuant to Code of Criminal Procedure
4 35.16(c)(2), the juror has a bias or prejudice against any of
5 the law applicable to the case upon which the Defendant is
6 entitled to rely and this would be unable to consider the full
7 range of punishment.
8 Also, under Morgan versus Illinois, Wainwright
9 versus Witt, Cumbo versus State, Pierce versus State, Cuevas
10 versus State.
11 We believe that among other challenges
12 Mr. Martinez said he is an automatic death penalty juror under
13 the stripping question that I asked him. He said that if a
14 criminal went in purposely to kill and rob and did so, it
15 warrants the maximum penalty. He did later come back and
16 change his answer, but he did say that.
17 He also said in his questionnaire that I believe
18 that if the crime is serious enough that the death penalty
19 should be enforced. Later he said that he really meant should
20 be an option but, in fact, his questionnaire did say enforced.
21 And that's in the record.
22 He also stated -- I asked him about Number 108:
23 Do you believe the death penalty should be used for other
24 crimes in addition to Capital Murder? He said, Yes. I said,
25 If yes, which ones? And he said, Rapists. That's in the
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1 record.
2 He also said -- it also said based on himself,
3 when I was talking to him about that, he said yes, I think
4 capital punishment for rapists and child molesters.
5 We believe, of course, that if he's willing to
6 inflict the death penalty for cases where there is not a death
7 involved, that he would certainly find the death penalty for a
8 case where there was a person killed by violence.
9 He also said that under 109 that the death
10 penalty gives a criminal what he deserves. He did come back,
11 in all fairness, and say he meant capital punishment was life
12 or death; but earlier on when I talked to him, he admitted that
13 he really hadn't been thinking too much about the life part.
14 And I believe that on the first blush when he filled out this
15 questionnaire, that he did mean -- when he said that the death
16 penalty gives a criminal what he deserves, that he was talking
17 about the death penalty. He said that if charged with the
18 crime that allows for the capital punishment and is proven,
19 then he deserves capital punishment.
20 And finally, as far as the confession, his first
21 response was if that was the only evidence, can you find not
22 guilty? He said, yes, I guess. It would be hard. And then
23 after the State did proffer some leading questions from him, he
24 did come back and say that he could. But we believe that under
25 Morgan versus Illinois that the follow the law or the leading
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1 questions are not really what the Court should focus on, but
2 his initial more honest response because that would be based
3 truly on his feelings.
4 Also, Judge, we'd also, of course, make an
5 objection based on the fact that this juror was qualified using
6 the -- what we believe, the impermissibly reduced definition of
7 mitigation, which is Eddings versus Oklahoma and the Eighth
8 Amendment.
9 Based on all that, we would challenge
10 Mr. Martinez for cause.
11 THE COURT: Response?
12 MS. YENNE: Judge, we would like to respond.
13 First, I'd like the Court to take judicial notice of the
14 answers in his Mr. Martinez's questionnaire.
15 THE COURT: The answers in the questionnaire or
16 the answers that were referred to in open court?
17 MS. YENNE: The answers that were referred to in
18 open court, but I'd also like the Court to take judicial notice
19 of the questionnaire questions because I am specifically going
20 to respond to them in response to this argument, as to the way
21 things in the questionnaire are phrased by capital punishment.
22 I'm going to point out something to the Court.
23 But let me start, and then the Court can decide
24 on the other. First of all, Judge, I think that this is a very
25 fair juror. In response to the questions in open court, Number
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1 105: Check one statement which best summarizes your general
2 views with about capital punishment, the death penalty. By the
3 way, there is a huge distinction on the way we ask this in the
4 questionnaire. In fact, we distinguish between the death
5 penalty and capital punishment in the agree/disagree, and
6 that's significant.
7 But he stated, I am neither generally opposed nor
8 generally in favor of capital punishment.
9 He's not a 5/5, he's not a 5/1, he's not a 5/2.
10 He's not even a 4.
11 Then you go on to Number 106: Assume you're on a
12 jury to determine a sentence for somebody who been convicted of
13 Capital Murder. The law gives you a choice of death or life
14 imprisonment without parole. He's a 3. I would consider all
15 the penalties provided by law and the facts and the
16 circumstances of a particular case.
17 Let's go a little further. In response to my
18 questioning. What is your best argument for the death penalty?
19 If the criminal has a history of crime and
20 violent nature and has committed murder, then the death penalty
21 should be enforced.
22 He's the first person that started bringing up
23 the process in a long time. Crime plus history plus violent
24 nature. And then when the process was explained to him, he
25 said how important mitigation was. He thought mercy was a good
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1 thing.
2 At the end of guilt/innocence he wasn't leaning
3 one way or another. Life without parole or the death penalty
4 could be just as appropriate. He himself said something to me
5 that was striking. This could be a one-time event. When
6 conscious objective or desire to kill, inexcusable Capital
7 Murder event was explained to him, he said it's possible that
8 somebody is not a future danger because it could be a one-time
9 event. In other words, capital -- an ugly, brutal, conscious
10 objective, desire to kill Capital Murder could be a one-time
11 even and not a future danger to him. He volunteered that.
12 Besides acknowledging that people could change. In fact, he
13 acknowledged that he believed that prison can change -- they
14 can change on their own after that. That's in his
15 questionnaire and came out during questioning.
16 He would not have his mind made up in
17 guilt/innocence. He would consider life without parole, which
18 he says is stiff, and the death penalty, the ultimate, and
19 would not have his mind made up or lean even after
20 guilt/innocence.
21 In fact, on defense counsel's questioning he
22 said, so would that be an automatic future danger?
23 No. He answered no.
24 Now keep in mind that caselaw says the facts of a
25 crime are sufficient enough to answer yes to Special Issue
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1 No. 1. But he said no for him.
2 He's not an automatic future danger person. In
3 fact, I believe him to be the opposite.
4 And he said that it should be eligible for death.
5 When you go to page 20 of our questionnaire, as opposed to
6 suggesting death penalty, Number 109, the agree/disagree
7 questions, are phrased this way. You will find a number of
8 statements below expressing different attitudes towards capital
9 punishment. Please check in one of the spaces next to each
10 statement indicating whether you more nearly agree or disagree
11 with the statement.
12 We're assuming capital punishment means the death
13 penalty; but yet, on some of the questions we rephrase the
14 death penalty versus capital punishment to agree or disagree.
15 We never captioned on the agree or disagree that capital
16 punishment meant the death penalty on the agree or disagree.
17 In fact, this particular juror says capital punishment, to him,
18 meant either life, the most strict, or death. Something
19 significant.
20 He said it should be an option. Well, of course
21 it should be because those are the two options under the
22 statute for the penalty range.
23 Additionally, he said he was not leaning towards
24 death or life without parole. He would hold me to my burden
25 beyond a reasonable doubt on Special Issue No. 1 and make me
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1 prove it. He could answer it no if I didn't prove it to him
2 beyond a reasonable doubt. Never in any phase was this man a
3 burden shifter, as they phrase it. In fact, he said he didn't
4 expect them to produce anything. He would keep an open mind
5 and thought mitigation was good. Thought it was a good thing.
6 Thought mercy was good.
7 His demeanor. I'd ask the Court to take notice
8 of his demeanor. This man is the opposite of an automatic
9 death penalty juror. He would consider all the options. He
10 thought it was good that a jury could give mercy to another
11 human being. And in response to the question on the
12 confession, there was no difference from his response than
13 anybody else's. That's one that you have to carefully consider
14 because it is nothing minor. And I went back and specifically
15 asked him. He indicated, just like a lot of other people who
16 have been selected for this jury, that it would be difficult
17 but they can follow the law.
18 He also specifically indicated that he could
19 follow -- can you judge this case based on the law and the
20 evidence provided to him? And as a juror that he will be fair
21 and listen to all the facts before making my decision. That's
22 in his questionnaire. That's before the Court.
23 He also very, very specifically testified that he
24 could consider the full penalty range, 5 to 99, if he convicted
25 someone of murder as opposed to Capital Murder.
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1 This man is open, honest. He would fairly judge
2 it, and he is not an automatic life without parole or death.
3 THE COURT: All right. I observed his demeanor.
4 I heard his answers. I thought he probably was as much down
5 the middle of the line that the defense has been looking for as
6 anybody we've had. I'm going to overrule your challenges for
7 cause.
8 Present Mr. Martinez to the State for peremptory
9 challenge.
10 MS. YENNE: None, Your Honor.
11 THE COURT: The defense does not have any other
12 peremptory challenges.
13 MR. WOOTEN: No, sir. We would have that motion
14 for the Court.
15 MS. MALLON: If I may approach, Your Honor?
16 THE COURT: Yes.
17 MS. YENNE: Judge, may we run and make some
18 additional response copies? We have a response to any motion
19 that would request additional peremptories.
20 MR. WOOTEN: Yes. And for the record, that is
21 the motion that we're filing.
22 THE COURT: All right. The motion has been
23 filed. I have a courtesy copy of it.
24 Ms. Yenne, you may go make some copies.
25 Mr. Anders, you can tell Mr. Martinez that we
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1 have some things we need to take up. It will probably be half
2 an hour or so before we get back to him, but we'll -- just tell
3 him we'll get back to him as soon as we can, but it will
4 probably be a few minutes before we do it.
5 MS. YENNE: I'm sorry, Judge. I might need 15
6 minutes. I have every exhibit and every juror challenge
7 transcription to attach to my response, so let me see if I can
8 get that, also.
9 THE COURT: Okay.
10 MS. YENNE: Could you give us about 15 minutes?
11 THE COURT: Of course.
12 MS. YENNE: Okay.
13 THE COURT: Take what time you need.
14 MS. YENNE: I forgot I had to attach Exhibits A
15 and B to it. Thank you.
16 (A short recess was taken.)
17 THE COURT: We're on the record. The record will
18 reflect that counsel for the State, counsel for defense, the
19 Defendant are present.
20 Ms. Yenne, you had requested we reconvene.
21 MS. YENNE: Yes, Judge. In starting to peruse
22 this Defendant's Request for Additional Peremptory Challenges,
23 this motion refers to jurors's answers in questionnaires that
24 may not be in the record before the Court. That is a
25 significant issue. We've had this discussion before, and the
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1 Court is ruling what's in the record. No one has taken
2 judicial notice, which could only be the Court, of these
3 jurors's questionnaires. There is a concern about
4 confidentiality, but I think it is blatantly unfair to refer to
5 questions that may not be testified to before on this record.
6 And I would object to -- I mean, we provided defense counsel
7 copies of all the juror transcriptions that we had up to that
8 point. We may have another one since. They have gotten it in
9 the last --
10 MR. WOOTEN: But two days ago, Judge. So they
11 were very nice to do that. They don't have to do that. But
12 I'm saying, unfortunately, the timing was not great. So we
13 weren't able to use the transcripts. We can reform it if we
14 have time.
15 I didn't mean to cut you off. I just wanted to
16 say.
17 MS. YENNE: They're not entire transcripts. They
18 are just the challenges for cause or peremptories.
19 MR. WOOTEN: I understand.
20 MS. YENNE: In other words, he would have to --
21 the Judge would have to look at the entire record on each
22 prospective juror. But we weren't asked for those transcripts
23 until, like, two or three days ago.
24 MR. WOOTEN: That's exactly true. I don't
25 think --
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1 MS. YENNE: But we would object to the Court
2 considering anything from a questionnaire that isn't on the
3 record unless the Court is going to admit all of these jurors'
4 questionnaires to look at that they're objecting to or take
5 judicial notice of that they're part of the record. Because
6 this motion reflects as if all of these questions that they are
7 referring to are in the record before the Court. You can't
8 just go pick and choose what a questionnaire says if it wasn't
9 on the record, Judge.
10 And now I'm going to tell you, that's days and
11 weeks gone by. You can pick a questionnaire that you're
12 quoting from -- let me see if I could refer to just
13 basically -- page 23, for example. On one of the jurors they
14 said on Question 100, What are your feelings? Please explain.
15 You can't just go back and say what they wrote if
16 it wasn't in the record before the Court. Because that issue
17 came up before about what is in the record, not just general
18 questions, and bootstrapped to a challenge -- a request for
19 additional peremptories if it's not in the record before the
20 Court, if we didn't develop it. And that is the State's
21 objection.
22 I have no idea what five weeks ago is in the
23 record versus what counsel is putting in their questionnaire
24 they stated, and they are trying to make it part of the record
25 when it may not be. So that is a huge concern for the State at
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1 this point.
2 MR. WOOTEN: Judge --
3 THE COURT: Well, I do note in one place it says
4 in the questionnaire in response and in some places it says the
5 venire person stated. So stated --
6 MR. WOOTEN: Yes, Judge. And let me see if I can
7 clarify a little bit. I don't really have an argumentative
8 response. I have a clarification. And it may not be -- it may
9 not fix it, but I want the Court to know what's going on.
10 Number 1, I did not write this part of the
11 motion. I support it, of course. It's got my name on it. But
12 to be able to say to you here is exactly the way it was done, I
13 can't do until we get ahold of Ms. Conn. She's not here today.
14 She had a doctor's appointment. She got all our notes from me,
15 Ms. Mallon, and herself, and then she worked on this motion. I
16 know sometimes -- or what I try to do is I ask people, like I
17 did with Mr. Martinez, I ask them what was in the
18 questionnaire. And then that's in the record.
19 Number two, it's always been my opinion -- and
20 that's all it is -- that these questionnaires were just part of
21 the voir dire that was done without me asking the questions to
22 somebody. I mean, we typed them up. We had input in the
23 questions. Those are their answers. That's been my opinion.
24 I don't believe the Court ever ruled,
25 ultimately -- well, and maybe I'm wrong; but I don't think the
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1 Court ruled, ultimately, how to handle that. Because -- well,
2 I just don't remember that being decided. I know the State had
3 a concern about it. We, of course, will follow whatever the
4 Court said. If the Court tells us that they have made a ruling
5 that the questionnaires are not in play unless it comes from
6 the witness stand, then what I will need to do is get ahold of
7 Ms. Conn and see if she did it, if she kept within those
8 parameters or not. But I don't remember the Court making a
9 ruling.
10 MS. YENNE: The State would object --
11 THE COURT: Even if I didn't make the ruling, how
12 could it be in the record if -- how can it be in the record
13 because those questionnaires aren't filed? Those
14 questionnaires are -- were never filed. Nobody asked for them
15 to be filed. So I don't think that can be in the record.
16 MR. WOOTEN: Once again, I think if someone was
17 writing a motion, Judge, I think they could say that -- it
18 would be more precise to say that Mr. Wooten asked Mr. Martinez
19 what he wrote in the questionnaire and it came in. But I can
20 envision somebody writing a motion and saying the questionnaire
21 said this because I asked him directly about that. So
22 before -- at this point, I don't know how that was developed.
23 MS. YENNE: That's exactly the State's objection.
24 The State would object to anything that is not on this Court's
25 record by a court reporter regarding each prospective
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1 peremptory or juror. We would object to the Court considering
2 anything that did not come before this Court on the very
3 thorough examination done by the defense and the State because
4 the Court is basing its rulings, as it has for eight weeks, on
5 what is before the Court in the record.
6 MR. WOOTEN: Well, then I think the State would
7 have to be able to say which things that they actually object
8 to. Because I don't think we can just come in and say there
9 might be some mistakes of this -- of this, you know, in here so
10 the entire motion should be thrown out. I don't think that's
11 fair either.
12 MS. YENNE: We believe this is an attempt to
13 bootstrap from questionnaires, and we would ask the Court then
14 if -- and this is going to be very painstaking, and we -- and
15 I'm deeply concerned about the manner in which this motion was
16 written because it is taking questionnaire information and it
17 may not be in the record. I'm deeply concerned about that
18 occurring.
19 THE COURT: Well, I would hope that that's not
20 the case unless it's clearly indicated that that is from the
21 questionnaire. The Court --
22 MR. WOOTEN: Can we agree to -- I'm sorry.
23 THE COURT: The Court will not consider anything
24 that is not in the record as for this motion.
25 MR. WOOTEN: And that's the Court's ruling, and I
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1 would say that in this situation I think that -- it's kind of
2 like when the Court is doing a bench trial and the Court hears
3 irrelevant information. The Court just doesn't consider that
4 information. Or the Court hears hearsay. So I don't think
5 that the motion on its -- is void somehow. I just think that
6 we -- we understand your ruling and would ask that you look at
7 our motion in that regard.
8 THE COURT: Well, I just have one curious
9 question. I was just looking at this. You have 15 objections
10 to peremptory challenges listed. My recollection is that there
11 was one juror -- and I don't know which one it was -- that you
12 did not have any --
13 MR. WOOTEN: I think there is three.
14 THE COURT: -- you did not have any challenge.
15 MR. WOOTEN: I think there is three, from my
16 recollection. Is that not what the motion says?
17 THE COURT: There were three what?
18 MR. WOOTEN: I think there are three times that
19 we used peremptories and did not object for cause.
20 MS. YENNE: Judge, we will be attaching the
21 acceptances of the jurors and the peremptories to our response
22 very shortly. But before I started my response attachments, I
23 wanted to address this. There are several. They will be in
24 our attachments; and there is, in fact, one juror who was
25 accepted and unaccepted. That was Ms. Wardlow.
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1 MR. WOOTEN: But -- no, I think the Court is
2 exactly right. I believe from my recollection that there are
3 three jurors that we used peremptories on. Two or three that
4 we did not challenge for cause. But I don't know that the law
5 is that we have to challenge all of them for cause. But if
6 you're saying that our motion is wrong, that's --
7 THE COURT: I'm just saying when I read your
8 motion it says used all 15 strikes and we said they were
9 erroneously denied. And you list 15 people, as I read your
10 motion. And -- turn to page 4. Am I misreading that second
11 paragraph in request? It said were erroneously denied for --
12 and I just counted those. It seems like I'm counting 15 of
13 them. Am I reading it wrong?
14 MR. WOOTEN: Well, Judge -- well, no, I don't
15 think you're reading it wrong; but I think what I would direct
16 the Court's attention to, respectfully, is that it says that
17 we've used all 15 strikes. The defense requests an additional
18 12 strikes because defense challenges for causes were
19 erroneously denied for jurors.
20 Now did we list the jurors here?
21 THE COURT: You list -- my -- my count you list
22 15.
23 MR. WOOTEN: That's unfortunate. I'm sorry.
24 We'll have to fix that.
25 THE COURT: Because I know one of those you
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1 weren't challenging for cause. You used a peremptory just
2 because your client wanted you to. And I don't remember which
3 one that was.
4 MR. WOOTEN: Yes, Judge. I belive that -- I
5 believe that --
6 MS. YENNE: That was Wardlow.
7 MR. WOOTEN: I think there is three. Not just
8 that one. I think there is two additional ones, in all candor
9 to the Court.
10 MS. YENNE: There are additional ones.
11 MR. WOOTEN: And I'm sorry that --
12 MS. YENNE: Well, like yesterday there was no
13 challenge for cause, also.
14 MR. WOOTEN: I think it's Blanchard and Martinez,
15 but we would have to check. And I apologize that it's wrong.
16 MS. YENNE: I'm going upstairs because I've got
17 the attachments. I should have the attachments that reflect
18 that.
19 THE COURT: Okay. So which ones are you
20 challenging that --
21 MR. WOOTEN: Can you give us a second to make
22 sure that we don't present further incorrect information to the
23 Court?
24 THE COURT: You can. I'm just trying to get a
25 handle on what you're complaining about.
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1 MS. MALLON: I know for certain, Judge, that we
2 did not challenge Mr. Blanchard or Mr. Martinez for cause.
3 THE COURT: And there was one that you did not
4 want to challenge for cause but your client requested and you
5 exercised a peremptory on that one.
6 MS. YENNE: Is that the one that was accepted and
7 then unaccepted? That was Ms. Wardlow.
8 THE COURT: Yes, that was Wardlow.
9 MS. MALLON: Then those are the three.
10 MR. WOOTEN: We need to make sure.
11 THE COURT: All right. Let's take a recess and
12 you look at your motion and tell me which ones you're
13 complaining about.
14 MR. WOOTEN: Thank you, Judge. We'll do that.
15 (A short recess was taken.)
16 THE COURT: All right. We're on the record. The
17 record will reflect that counsel for the State, counsel for the
18 defense, the Defendant are present. The venire person is still
19 not present.
20 We've been -- I didn't check to see when we went
21 off the record because I didn't think it was going to be that
22 long, but I think we've been off the record for -- I show that
23 Mr. Martinez -- the State -- the defense finished at 2:02 with
24 Mr. Martinez, and it's now 3:28. So has everyone -- the State
25 had sufficient time to review the request of the defense for
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1 additional peremptory challenges?
2 MS. YENNE: Yes, Your Honor.
3 THE COURT: Okay. Mr. Wooten, I'll hear you on
4 your request.
5 MR. WOOTEN: Thank you, Judge.
6 First, Judge, I would ask -- well, first I would
7 like to address the fact that our motion had some problems. I
8 want to apologize to Mr. Harris for that. I'd like to
9 apologize to the Court, and I apologize to the State. We're
10 sorry about that. We think that we have it lined out now.
11 I would like to go to page 4 and make an oral
12 request that the Court amend the second full paragraph to say
13 that the defense requests an additional 11 strikes. We'd also
14 like the Court to not consider, because we believe this to be
15 erroneous, Juror No. 19, Jamie Charlene Wardlow; Juror No. 143,
16 Gregory Paul Blanchard; 142, Richard Martinez; and 162, Brian
17 Paulk.
18 THE COURT: All right. I think Mr. Blanchard's
19 number is actually 135.
20 MR. WOOTEN: But anyway, Judge, we'd like you to
21 not consider that name, if you would, please.
22 THE COURT: All right. The Court will receive
23 and grant that oral motion.
24 MR. WOOTEN: Thank you, Judge. We'd also at this
25 point ask that the Court take judicial notice of the juror
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1 questionnaires. Juror number -- well, of Audrey Holt, Krystine
2 Turner, Deborah Batson, Brenda Woods, Stephanie Cooper, Brenda
3 Lee, Donna Vanscoy, Donald Westbrook, Linda Georgia, Elizabeth
4 Tennill, and Phillip Scott.
5 THE COURT: All right. The Court will not take
6 judicial notice of anything that has not been filed with the
7 court clerk or anything that was not testified to in the record
8 as to specific questions in the questionnaires.
9 MR. WOOTEN: Yes, sir.
10 Your Honor, as far as our motion goes, you know,
11 for the record we've now challenged for cause Juror No. 168,
12 Mr. Martinez. That challenge has been denied. We object to
13 having Number 168, Mr. Martinez, on this jury. We object due
14 to the reasons that we put in the cause and also due to
15 strategic trial reasons. However, we have exhausted all our
16 peremptory strikes. We would strike Number 168, Mr. Martinez,
17 if we had a peremptory available.
18 We believe that the seating of Mr. Martinez,
19 Number 168, would deny Mr. Harris a fair and impartial jury
20 pursuant to the United States -- 6th and 7th Amendments to the
21 United States Constitution; Texas Constitution Article 1,
22 Section 10 and 15; Code of Criminal Procedure 1.05, 1.12,
23 35.16, 35.17. And also pursuant to the 4th, 5th, 6th, 8th,
24 14th United States Amendments; Article 1, Section 3, 10, 13, 15
25 and 19 of the Texas Constitution.
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1 Your Honor, respectfully, we would ask for an
2 additional 11 strikes or, in the alternative, however many
3 strikes that the Court may feel that is warranted in this
4 situation. We assert, respectfully, that the Court has made
5 us -- by necessity, through erroneously denying our challenges
6 for cause, made us use peremptories where we would not have had
7 to had the Court ruled in our favor. Specifically, those
8 challenges in question are set out in the body of the motion.
9 We, of course, at this point would ask that the
10 Court only -- and I know the Court will do this; but I think in
11 deference to the Court's order, we would ask that you only
12 consider what came from the stand. And if in our motion it
13 does cite something that did not come from the stand, we'd ask
14 that you disregard it.
15 These challenges are set out in the body of our
16 motion. In the interest of time and accuracy, I rely on the
17 written recitation. The State was nice enough to give us
18 transcripts two days ago. Unfortunately, apparently, we were
19 unable to get those into our motion, so we went from our notes
20 and we apologize for any inaccuracies therein.
21 Accordingly, we would request the Court provide
22 us with these additional peremptories. Otherwise, Juror
23 No. 168, Mr. Martinez, an objectionable juror to the defense,
24 will be seated on this jury.
25 Please don't allow any arguments that I make --
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1 oh, one thing I would say is in looking through this motion
2 this morning and looking at the caselaw, Jones versus State, I
3 don't know is as strong a case as is cited in our motion. I
4 believe it does stand for the proposition that if any of the
5 parties run out of peremptory strikes, if the Court makes
6 erroneous -- grants erroneous challenges for cause or -- grants
7 challenges for cause erroneously, that that can be unfair. But
8 I don't know if that -- I don't know if it actually says --
9 actually addresses the Court giving the defense additional
10 peremptories. However, I do believe that it is not wrong for
11 the Court to give the defense additional peremptories. I
12 believe it is done in numerous cases, and I think it is up to
13 the Court's discretion as to whether to, pursuant to the
14 authority that we cited, grant us these peremptories.
15 So, Judge, pursuant to the authorities that I've
16 already cited and asserting Mr. Harris' right to an impartial
17 jury -- and please, if the Court would not allow anything I
18 said today to somehow waive any arguments that we made that are
19 in the body of our motion, we would respectfully request that
20 you grant our motion and give us an additional 11 peremptory
21 strikes. Thank you.
22 THE COURT: Just so the record is clear, anything
23 you said today will not waive anything that is in your motion
24 that is supported by the record.
25 MR. WOOTEN: Yes, sir. Thank you.
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1 MS. YENNE: Judge, I'd like to respond. And I'd
2 like to start out with the original motion because it does
3 pertain to accuracy and perspective.
4 You know, Judge, sometimes you lose all
5 credibility when you throw the baby out with the bath water.
6 And to challenge every one -- to state that you request an
7 additional 12, now 11 -- you know, you'd have some credibility
8 if you had 1, maybe 2 in the process. But really to say an
9 additional 12, and now 11, strikes because defense challenges
10 for cause were erroneously denied for these jurors: Audrey
11 Holt, Krystine Turner -- now a modified Ms. Wardlow because
12 it's been proven to be a blatant inaccuracy -- Deborah Lynn
13 Batson, Brenda Woods -- I would refer the Court to Ms. Woods's
14 record because I'm going to talk just briefly. One of the most
15 stout, honest jurors the State accepted and defense exercised a
16 peremptory on and tried to challenge her for cause any way they
17 could. A fair juror -- Stephanie Cooper, Brenda Lee, Donna
18 Vanscoy, Donald Westbrook, Linda Georgia, Elizabeth Tennill,
19 Phillip Scott, Gregory Blanchard, now taken out, Richard
20 Martinez, now taken out. Inaccuracy, Inaccuracy. Now Brain
21 Paulk, now taken out. Everybody? Really?
22 You know, I've never in 30 years seen jurors
23 subjected to the type of questioning that I've seen here; and
24 I've done three capitals, minimally, and was a party to an old
25 capital questioning. These jurors have withstood grueling
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1 questions -- average citizens, not versed in the law -- and
2 they were honest and forthright. And the people that have been
3 called for this jury have been a fair and honest calling and
4 selection and a moderate, middle-of-the-road jury. In fact,
5 the times -- I refer the Court to all of the record before the
6 Court -- that counsel has said that this is a pro death penalty
7 jury, the Court even corrected on record that this is a very
8 moderate jury. And I think, frankly, to be honest with you,
9 defense counsel themselves would have to acknowledge that.
10 But you have to be able to state that the Court
11 has improperly overruled your challenge for cause in order
12 to -- in order to sustain, and that you've exhausted all your
13 peremptories and now you're having to take an objectionable
14 juror. Which challenge for cause was improperly overruled?
15 All of these? That is not so, Your Honor. The record does not
16 reflect it. Not a one had been improperly overruled. They
17 were subjected to grueling questioning by defense counsel, and
18 they withheld it and honestly and openly answered it.
19 It's like you don't -- you just -- you don't get
20 to have your cake and eat it, too. Just because you wanted to
21 challenge for cause and weren't legally entitled doesn't mean
22 the Court didn't make the right ruling. The Court has been
23 abundantly fair. In fact, this Court has granted challenges
24 for cause of defense counsel and given the Defendant -- and the
25 State has no objection to that, in fairness. It's a death
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1 penalty case. We want to be fair -- and given the Defendant
2 challenges for cause that the record really did not support.
3 With all due respect, Your Honor, every equivocation went to
4 the benefit of the Defendant in a challenge for cause. We have
5 no objection to that; but we are pointing out that the
6 Defendant by that action, by your granting of those challenges
7 for cause that the record really did not support, gave them
8 additional strikes by that, gave them every benefit of the
9 doubt. Up to Ms. Means yesterday, up to people that,
10 literally, when the whole record would support it --
11 Mr. Ghiselin, Richard Ghiselin; Norman Payne; Christy Kittrell;
12 William Mccord -- these are effective extra peremptory strikes
13 given to the Defendant.
14 Judge, there is no improperly overruled challenge
15 for cause that you've made of the Defendant. According to
16 them, it's every ruling you made. That's not right, Judge.
17 But I'm going to say to you -- I'm going to go over the motion
18 that he's orally amended. I'd like to give you a theme through
19 that motion. It's a cookie cutter. And to put in
20 Mr. Blanchard, Mr. Martinez, Brian Paulk, and Charlene Wardlow
21 shows a level of carelessness about this motion. It's just a
22 cookie cutter.
23 It's saying that the Court has improperly given
24 an instruction on mitigation, that the State has led each and
25 every juror. But seeing as counsel admits this, I put an "X"
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1 through Charlene Wardlow, Gregory Paul Blanchard, Richard
2 Martinez, and Brian Paulk because it was blatantly untrue what
3 they put in this motion.
4 But, yet, even in the motion when they put to the
5 back of it, oh, by the way, you didn't grant a motion -- you
6 didn't overrule a challenge for cause but we get one anyway,
7 that's not the law. And this is a system of laws to get to
8 justice. And to suggest -- in each and every juror to suggest
9 that the State is improperly committing and in the
10 mitigation -- if asking a juror if they could follow the law
11 and the evidence and take -- they take an oath to follow the
12 law and the evidence -- is improper, then the Courts need to
13 stop doing it, also. But that is the test.
14 If you look at every one of their arguments,
15 there is -- and I would ask the Court to ignore, as counsel has
16 stated, the questionnaire questions. Because I'm going to tell
17 you that I believe that the record will not support what Mary
18 Conn has put in this motion regarding it. I think she has
19 picked and chose from the questionnaires, and it is unfair to
20 inject error in a record in this manner.
21 Judge, they have not demonstrated that you have
22 improperly overruled any one of their challenges for cause. In
23 fact, you have been abundantly fair to the Defendant. You
24 would have to find that you improperly overruled a challenge
25 for cause. You did not. And then they would have to show harm
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1 by taking an objectionable juror. I would refer the Court to
2 the record on Mr. Martinez and say is the man before you an
3 objectionable juror? He is not, Judge. They are not entitled.
4 The State's job is to see that justice is done;
5 but there are two victims out there -- one is a victim of a
6 robbery, and there is a dead man -- and they deserve justice,
7 too. The equal treatment. And this Court has been abundantly
8 fair. We have no objection to that. But at some point in time
9 the law has to be followed, and we're asking the Court to
10 follow it. They are not entitled to any additional challenges
11 for cause.
12 I was defense counsel on a Capital Murder case.
13 I know what it's like to have your client receive the death
14 penalty, receive -- and to be a State's prosecutor, life
15 without parole. I respect the process. But I'm going to tell
16 you one of the parts of that process is to delay as long as you
17 can. So wanting 11 additional strikes, wanting any additional
18 strikes, is unreasonable. And then at the same time to object
19 to a new panel being brought in after you asked for additional
20 strikes is wholly and completely --
21 THE COURT: Well, that's our issue for tomorrow.
22 MS. YENNE: Yes. But I'm saying it's -- I think
23 that they are in direct contradiction with one another. I
24 think that this is a pattern to get to that point, and it is a
25 pattern to delay this case until beyond the beginning of the
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1 year. This could go on forever, Your Honor. But it has gone
2 on for many, many, many, many weeks in a very fair manner; and
3 they are not entitled to additional strikes. We would ask the
4 Court, respectfully, to deny those requests for additional
5 strikes.
6 MR. WOOTEN: Your Honor, may I respond?
7 THE COURT: You may.
8 MR. WOOTEN: Well, Judge, I certainly -- well,
9 I'm not even going to say I hope. I know the Court will not
10 make this decision on most of what Ms. Yenne said. Because the
11 real issue here is whether you believe that by the challenges
12 that you denied for us, we deserve more peremptory strikes.
13 Whether I made a bad motion, whether Ms. Conn made a bad
14 motion, that may be true. It may not be true. But, of course,
15 this Court, I know, will just look at the facts of this motion
16 and not hold that against Mr. Harris. Because I'm not the one
17 on trial. He's the one on trial. And I know the Court knows
18 that.
19 How we challenge tomorrow, bottom line here is
20 this. Number one, it's not in any way disingenuous for us to
21 challenge all of those because we don't know how the Court may
22 review the Court's decisions. What kind of lawyer would I be
23 if I only went to one or two, when the Court may have rethought
24 the fifth or sixth one? I have to be a good lawyer and file a
25 motion that allows the Court, if the Court in its wisdom wants
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1 to rethink one of its decisions or three or whatever, on any of
2 those challenges. I have to preserve that, number one, and
3 file it in such a way as to most fully benefit my client's
4 rights.
5 But once again, we just would ask that you look
6 at our motion, look at the challenges for cause from whatever
7 source the Court wants to, and just apply whatever standard the
8 Court wants to apply. And I think if the Court looks at that
9 and sees that, goes back through all those challenges, I think
10 it's very important that the Court may feel like that one or
11 two of those could have gone the other way, perhaps, or
12 whatever. But all this other stuff I don't think should come
13 into it. This is a legal argument. We've made a legal
14 argument, and we ask that you -- and I know you will --
15 carefully and fairly consider our motion. Thank you.
16 THE COURT: Give me -- we'll be in recess until
17 5 minutes until 4:00 o'clock.
18 (A short recess was taken.)
19 THE COURT: We're on the record. The record will
20 reflect counsel for the State, counsel for the defense, the
21 Defendant are all present and seated in the courtroom.
22 I have gone back and looked at the notes that I
23 took on the -- each of the 11 that were now subject to the
24 challenge for cause, and I want to say before I rule that I did
25 not hold -- I do not hold it against the defense in any way,
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1 shape, or form for pointing out all of the particular people
2 because it allowed me to go look at them. So I didn't hold
3 that. I realize that things move pretty quickly; and to the
4 extent there were errors or inconsistencies in the motion, I'm
5 not holding that against the defense either. We've all been
6 here. We've all taken notes. We've all got our recollections.
7 I will, and did, consider everything in the
8 motion that is supported by the record. But I'm going to deny
9 your request for additional challenges for cause.
10 MS. YENNE: Additionally peremptories, you mean?
11 THE COURT: I'm sorry. Additional peremptories.
12 I keep wanting to -- early in the game I kept wanting to put
13 theirs on yours.
14 Request for additional peremptories. As a
15 result, Mr. Martinez will be seated as a juror.
16 MR. WOOTEN: Judge, for purposes of the record --
17 and in no way to argue with your ruling -- I believe at this
18 point I just want to make sure that the record is set that we
19 do object to Mr. Martinez being seated for all of the reasons
20 that we presented before.
21 THE COURT: The record does so reflect.
22 MR. WOOTEN: Thank you, Judge.
23 THE COURT: Okay. Mr. Anders, would you go have
24 Mr. Martinez step back to the courtroom, please?
25 (Venire person in.)
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1 obviously, if they used -- you know if they use that example,
2 it's not the facts of this case.
3 A. Yes.
4 Q. Because it would be improper. So you know that. But
5 I'm going to go ahead and use their example because I think
6 it's a good example. Would you consider a causation situation
7 like that? Could you consider and give effect to that as
8 mitigation?
9 A. No.
10 Q. Now when we talk about this mitigation, where would
11 you -- as far as the way this goes, where would you -- I know
12 it says taking into consideration all the evidence, including
13 the circumstances of the offense, Defendant's character and
14 background, personal moral culpability of the Defendant, where
15 would you expect the mitigation to come from?
16 MS. ALDOUS: Your Honor, I'm going to object.
17 May we approach on this?
18 THE COURT: You may.
19 (The following discussion was held at the bench.)
20 THE COURT: We're at a bench conference. The
21 venire person cannot hear.
22 MS. ALDOUS: Judge, this question is misleading
23 to the juror. It's a deliberate backdoor attempt to get her to
24 say that she can't follow the law. She repeatedly said that
25 she would not require the defense to produce any evidence at
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1 all, that they don't have a burden on Special Issue No. 2, and
2 that neither party has a burden.
3 MR. WOOTEN: Actually, Judge, the reason I'm
4 asking this question is because what a juror said yesterday or
5 the day before. Because they actually said that and it
6 occurred to me that, I mean, that's what the juror said. It's
7 not a backdoor attempt. I'm asking her if she assumes that
8 we're going to bring it, then that would be putting the burden
9 on us.
10 MS. ALDOUS: Judge, he also just asked her would
11 you require them to produce any mitigation evidence, and she
12 said no. And now they are attempting to --
13 THE COURT: So what's your legal objection?
14 MS. ALDOUS: That the question is confusing to
15 the juror and --
16 MS. YENNE: Additionally, Your Honor --
17 THE COURT: One lawyer.
18 MS. ALDOUS: And there may or may not be
19 mitigation in a case depending on the evidence.
20 MR. WOOTEN: Judge, it's not a trial. There is
21 no asked and answered in voir dire.
22 THE COURT: Okay. I'm going -- I'm going to go
23 ahead and sustain the objection.
24 (Bench discussion concluded.)
25 MR. WOOTEN: We pass the juror, Judge.
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1 MS. YENNE: Object to full effect. Object to the
2 form of the question.
3 THE COURT: Sustained.
4 Q. (BY MS. CONN) You're not going to give effect to
5 that?
6 A. Okay.
7 Q. I want to ask you a hypothetical question. So can you
8 just go with me on a hypothetical?
9 A. Yes.
10 Q. This is not as much as -- it's not this case. It's
11 not disguised -- this case is not being disguised. This is
12 really just a hypothetical question.
13 I'd like you to consider that you sat as a juror
14 on a different Capital Murder case and you know that -- and the
15 Judge instructs you that Capital Murder is an intentional
16 murder where it was the Defendant's conscience desire to kill
17 and the Defendant accomplished that desire along with some
18 other serious crime. Like, for example, one of the things
19 Ms. Yenne mentioned was killing a police officer. You know
20 that could be a Capital Murder.
21 A. Right.
22 Q. So you and the 11 other jurors heard all the evidence
23 and decided beyond a reasonable doubt that the Defendant in
24 that case intentionally or knowingly killed --
25 MS. YENNE: Objection. Not knowingly.
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1 MS. CONN: I'm sorry.
2 Q. Intentionally killed an innocent victim who did not
3 deserve to die. Are you with me?
4 A. Yes.
5 Q. And in that case there was no -- you found that there
6 was no self-defense. There was no defense of another person.
7 There was no defense of property. It was not a mistake. It
8 was not an accident. The Defendant in that case was not forced
9 to commit the murder. Nobody made him do it. And the victim
10 did not provoke the Defendant, nor did the victim deserve to
11 die. You had an innocent victim.
12 A. Okay.
13 Q. So are you following me?
14 A. Yes.
15 Q. All right. Despite whatever evidence you heard
16 concerning those defenses, you and 11 other jurors decided
17 beyond a reasonable doubt that the Defendant acted
18 intentionally and he knew what he was doing. He meant to do
19 it.
20 A. Okay.
21 Q. Just a senseless, cold-blooded killing. And, further,
22 you found that there was -- that no matter what evidence you
23 might have heard or not, you found that the Defendant was not
24 insane, he was not mentally retarded, and it was a murder in
25 which the Defendant was able to form the specific intent or
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1 conscious desire to commit the murder and did so.
2 A. Okay.
3 Q. You also found that he wasn't so drunk that he
4 couldn't act intentionally or he wasn't so high on drugs that
5 he couldn't act intentionally.
6 A. Okay.
7 Q. So no -- there was no -- he has no -- one way to say
8 it is he has no defenses. No defenses and no other
9 circumstances. It was just plain-vanilla, cold-blooded
10 killing.
11 A. Right.
12 Q. Assume that you and the 11 other jurors all agreed
13 beyond a reasonable doubt that all that's true. I'm going to
14 ask you about your feelings. What are your feelings in that
15 hypothetical about the death penalty being the only appropriate
16 remedy for that guilty murderer?
17 MS. YENNE: I'm going to object to the form of
18 the question. It's an improper commitment to an improper
19 hypothetical, injecting a police officer and being the only
20 appropriate. The question is misleading as to the options
21 available. Object.
22 MS. CONN: May we approach, Your Honor?
23 THE COURT: You may.
24 (The following discussion was held at the bench.)
25 THE COURT: We're at a bench conference. The
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1 venire person cannot hear.
2 MS. YENNE: The State is going to object that is
3 an improper hypothetical, improper commitment. It adds a
4 factor -- a specific police officer factor, knowing that this
5 juror's husband is a police officer, and suggests once again
6 what has been attempted to be suggested to every juror, that
7 there is only one appropriate penalty. What are your feelings?
8 It is a unique creative hypothetical; but it suggests, based on
9 emotions in an improper hypothetical, that there is only one
10 appropriate penalty. I would object to this continuous form of
11 this question.
12 THE COURT: Ms. Conn?
13 MS. CONN: Your Honor, it was a proper question
14 under Standefer v. State and Cardenas v. State. And you have
15 the cases, I believe, Your Honor; and if you don't, I'd be
16 happy to provide them again. It was a proper question under
17 the 5th, 6th, 8th, and 14th Amendments. An instruction from
18 the Court to not allow me to ask that question denies effective
19 assistance of counsel to my client, it denies his rights to be
20 heard under the Texas Constitution and, again, violates
21 Standefer and Cardenas.
22 It is the -- I was very careful to say what are
23 your feelings about this issue? This is not wouldn't you
24 agree? I counted no less than 30 or more times Ms. Yenne said
25 wouldn't you agree with this? Wouldn't you agree with that?
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1 So I'm not asking would she agree on this. I'm not committing
2 her at all. I am asking her what her feelings are, and that's
3 the way I asked the question. I was very careful to approach
4 it in that respect.
5 It's Morgan versus Illinois and Standefer and
6 Cardenas versus State. The law is, Your Honor, that a
7 commitment question is proper if one of the possible answers
8 gives rise to a challenge for cause; and automatic death
9 penalty is a possible answer to this question. Then it's
10 proper. It contains no unnecessary facts and tracks the penal
11 code elements and the defenses.
12 Ms. Yenne herself gave a homicide of a police
13 officer as a death penalty as a Capital Murder, and I'm
14 certainly entitled to use the same example she used.
15 MS. YENNE: And we don't believe that "what are
16 your feelings" is an appropriate mechanism to arrive at a
17 challenge for cause. Yet this is what defense counsel is
18 attempting to do by what are your feelings questions; and
19 therefore, it is improper. And the manner in which they are
20 doing it.
21 THE COURT: Okay. I think that I understand
22 under Standefer -- you know, not all open-ended questions
23 are -- I mean, open-ended questions can be commitment
24 questions. And I think it is misleading in the example of the
25 officer, so I'm going to sustain the objection to the way the
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1 question was asked.
2 MS. CONN: Does the Court have a recommendation
3 as to how I can ask the question that would be
4 non-objectionable?
5 THE COURT: I can't. I can't give you
6 suggestions on how to ask them.
7 MS. CONN: I'd like to make a bill.
8 THE COURT: Okay.
9 (Bench discussion concluded.)
10 Q. (BY MS. CONN) Thank you for your patience. I ask you
11 to look further back at Number 157. That would be page 29.
12 A. Okay.
13 Q. You said -- the question is: Do you believe that the
14 death penalty should be a possible punishment for someone who
15 participated in the crime but who did not personally do the
16 actual killing?
17 And you said yes. And you explained, If someone
18 helped plan the crime and/or helped acquire the means for the
19 killing, they should also be held responsible and they should
20 also get the death penalty.
21 Is that your feeling?
22 A. Yes.
23 Q. You said further -- you told Ms. Yenne that if there
24 was doubt in the case, that it would be unfair to send someone
25 to the death penalty. Is that right?
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1 I will present Ms. Cooper to the State for any
2 challenges for cause.
3 MS. YENNE: None, Your Honor.
4 THE COURT: Present Ms. Cooper to the defense for
5 challenges for cause.
6 MS. CONN: Your Honor, I am not prepared at this
7 moment to do that; but I would like to make a bill before I
8 exercise any challenge.
9 THE COURT: You may.
10 MS. CONN: Okay. The question that I asked, Your
11 Honor, that I want to have answered is I asked Ms. Cooper,
12 assuming with me that you sat in a hypothetical death penalty
13 case, not this case, and in that case you were instructed that
14 Capital Murder is an intentional murder where it was the
15 conscious desire of the defendant to kill and he accomplished
16 that desire, along with some other serious crime, for example,
17 a homicide of a police officer. You and the 11 other jurors
18 heard all the evidence and decided beyond a reasonable doubt
19 that the defendant intentionally killed an innocent victim who
20 did not deserve to die.
21 Further, in that case there was no self-defense,
22 no defense of another person, no defense of property, it was
23 not a mistake, it was not an accident. The Defendant was not
24 forced to commit the murder. The victim did not provoke the
25 murder or deserve to die but was innocent. Despite whatever
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1 evidence concerning those defenses that I just discussed you
2 heard during that trial, you and 11 other jurors decided beyond
3 a reasonable doubt that the defendant acted intentionally. He
4 knew what he was doing and he meant to do it.
5 Further, it was not a murder where the defendant
6 was insane, mentally retarded or -- mentally retarded. It was
7 a murder where the defendant was able to form the specific
8 intent or conscious desire to murder and did so. The defendant
9 was not so drunk that he couldn't act intentionally, not so
10 high on drugs that he couldn't act intentionally, and you and
11 11 -- excuse me. Despite any evidence you heard about those
12 things, you and 11 other jurors decided beyond a reasonable
13 doubt that the defendant acted intentionally, he knew what he
14 was doing and he meant to do it and did it. You and 11 other
15 jurors all agreed beyond a reasonable doubt that he is guilty,
16 along with all those other things that we discussed.
17 I'm asking about your feelings. What are your
18 feelings about the death penalty as the only appropriate
19 remedy -- or excuse me, penalty -- not remedy -- for this
20 guilty murderer?
21 This is a proper question under Morgan versus
22 Illinois and under Standefer versus State and under Cardenas.
23 Standefer says that a commitment question is proper in the
24 event that it is one of the possible answers -- excuse me.
25 That one of the possible answers to the question gives rise to
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1 a challenge for cause. An automatic death penalty answer is a
2 possible answer to this question in this case so, therefore,
3 it's a proper question under Standefer.
4 It contained no unnecessary facts and tracked the
5 penal code elements and the defenses. We want to ask the
6 question pursuant to the 5th, 6th, 8th and 14th Amendments, the
7 denial of the right to be heard under the Texas Constitution,
8 right to effective assistance of counsel under the U.S.
9 Constitution, Cardenas versus State and Standefer versus State.
10 And what I'd like to do is get the juror back and
11 ask the question and receive an answer to my ultimate -- to my
12 question to -- to the question at the end that has the question
13 mark, Your Honor, if I may.
14 THE COURT: All right. Does that conclude your
15 bill?
16 MS. CONN: Yes.
17 THE COURT: All right. Do you have a challenge
18 for cause?
19 MS. CONN: Yes, Your Honor. May I have just a
20 moment for that? May I have a ruling on my bill?
21 THE COURT: You made the bill. You requested a
22 bill, and I gave you a bill. It's in the record.
23 MS. CONN: May I ask the question of the juror,
24 Your Honor, before we go further?
25 THE COURT: I ruled on the question you asked
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1 before and you asked to make a bill and you've made your bill.
2 MS. CONN: All right. May I have just a moment,
3 Your Honor?
4 THE COURT: You may.
5 MS. CONN: Your Honor, if I may, initially, Your
6 Honor, I talked with Ms. Cooper about her distractibility. She
7 had said she did not want to sit. I know it was the very end
8 of the questionnaire she said that she was -- Number 161 and
9 also up earlier she talked about she would not be able to sit.
10 She said specifically that it seems really overwhelming. She
11 said she did not want to sit. She said she would be
12 distracted. She said she would be thinking about her work, her
13 obligations at home, and her responsibilities outside of the
14 courtroom. So I believe that's a reason for her not to sit.
15 She said that she considered the death penalty as
16 a deterrent, which is a factor in her applying the death
17 penalty. I asked her that specifically, in those words,
18 whether or not she believed it to be a factor in her
19 consideration; and she said it was. A deterrent is not a
20 proper reason for giving death, Your Honor, in that the
21 Defendant in a Capital Murder case -- you know, death is
22 different. He is entitled to an individualized sentencing
23 based on the individual facts and the other Special Issues in
24 this individual case. And a deterrent or a message to the
25 community is not a proper consideration. It's not a factor for
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1 A. I feel that there are some people within the prison
2 system that have grown used to not having to necessarily work
3 and are actually comfortable with being in that particular
4 society. And therefore it may not be a deterrent.
5 Q. Okay. Do you think life without parole is a
6 substantial penalty?
7 A. Yes, I do.
8 Q. Do you think it's an appropriate penalty for Capital
9 Murder?
10 A. Depending on the case, yes.
11 Q. Okay. You said you live here in Angleton. Is that
12 right?
13 A. Yes.
14 Q. Okay. Do you have a feel for what the community
15 thinks about the death penalty? Do you think most of the
16 community is in favor of it?
17 MS. YENNE: Your Honor, I'm going to object to
18 relevancy and improper form of the question by venire about the
19 Angleton community.
20 THE COURT: Sustained.
21 MS. MALLON: Can we approach, please?
22 THE COURT: You may.
23 (The following discussion was held at the bench.)
24 THE COURT: Your response?
25 We're at a bench conference. The venire person
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1 cannot hear.
2 MS. MALLON: Your Honor, this is not a witness in
3 a case. It's a juror in a Capital Murder case. There is no
4 relevancy objection to determining a juror's feelings on all
5 the issues at stake in this case. Voir dire is intended to be
6 very broad.
7 THE COURT: I agree. But to elicit facts.
8 MS. YENNE: It's her feelings, not a community's
9 feelings, on their perspective in an effort to put pressure on
10 the venireman.
11 THE COURT: I'm going to sustain the objection as
12 to the community's feelings.
13 (Bench discussion concluded.)
14 Q. (BY MS. MALLON) Okay. Ms. Holt, I'm going to talk a
15 little bit about this future danger issue that you spoke about
16 the State with.
17 A. Okay.
18 Q. And that's what we tend to call the short -- to make
19 it short, future danger.
20 A. Yes.
21 Q. But it's this first Special Issue that you looked at
22 when you talked to the State. They had it on a slide?
23 A. Yes.
24 Q. This is the same thing, but we shorten it to say
25 future danger. Now in the guilt/innocence phase of the trial
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