Court of General Sessions, Sixteenth Circuit, Union County, South Carolina
July 28, 1995
Hon. William L. Howard, Judge.
ATTORNEYS: Thomas E. Pope, Solicitor, Keith Giese,
Solicitor, York, For the Plaintiff; David I. Bruck, Esq., Judy Clarke,
Esq., Columbia, For the Defendant.
THE COURT: All right. Is the State ready to proceed?
MR. POPE: State is ready, Your Honor.
THE COURT: Is the defense ready to proceed?
MR. BRUCK: Defense is ready.
THE COURT: All right. Are the shades in the position
that you would like to have them?
MR. POPE: Fine with the State, Your Honor.
MR. BRUCK: Well, we may want to adjust them at the
break.
THE COURT: Okay. Ladies and gentlemen, we are about
to have closing arguments. As some of you may be new to the courtroom,
let me ask you to please take all precautions that you can to be as still
and as quiet as possible. I realize that we all move around a little bit,
but in this courtroom every sound seems to resound and to be heard, and
the voices tend to echo a little bit and it becomes difficult for the jury
to hear. So to the extent it's possible, as many people as we have here
in the courtroom, I would ask you to try to take special steps to be as
quiet as you can.
I would ask each person to please remain in your
seats through the entire argument. We are going to break at the conclusion
of each argument and give the jury a few minutes -- to go back to the jury
room for a few minutes before we have the next argument. So at that point
you will be able to get up. So please do not try to get up and exit during
anybody's argument.
I would ask you all in the back of the room to make
sure that no one tries to come in during the closing argument. Obviously,
if somebody has an emergency situation, that's a different matter.
Very well then. Is there any matter we need to address
before we do have closing argument?
Anything by the State?
MR. POPE: No, sir, Your Honor.
THE COURT: Anything by the defense?
MR. BRUCK: No, sir.
THE COURT: Very well then. If you would bring us
the jury.
Counsel, I'm not going to let them take notes during
closing argument. Anybody object to that?
MR. POPE: No.
MR. BRUCK: No, sir.
(The following takes place in the presence of the jury panel)
THE COURT: Good morning Mr. Foreman and ladies and
gentlemen of the jury. I hope that you all had a pleasant evening.
As you know, at this time we have concluded with
all of the evidence and the testimony that is going to be presented in
connection with this matter. And we will now hear closing arguments. So
if you will, I'll ask you to please give to the attorneys your attention,
your complete attention, as they present to you their closing argument.
I'm sorry that you had to wait this morning. I was working out some legal
issues with regard to charges that we needed to work out before we could
begin.
So at this point we will have closing argument.
Mr. Pope, you may proceed.
MR. POPE: If it please the court, Your Honor.
THE COURT: Yes, sir.
[CLOSING ARGUMENT]
MR. POPE: Ladies and gentlemen, I know that we have all lived
-- this has been a long two, three weeks. Being here in the courtroom with
you, I would have to say from what I have observed, that we could not have
had a better jury. Regardless of what decision that you make, regardless
of what penalty that you impose, I truly appreciate that you represent
this community. You come from all walks of life. And I truly believe that
you will stick with the vow, with the promise, that you gave the court
when you said that you are type that wants to hear everything. And that
you won't come in with any preconceptions about what the penalty should
or shouldn't be, that you would wait until you heard everything, no matter
how painful it was, no matter how difficult it was, that you would hear
everything and then you would make a determination.
This is going to be the last time that you will
hear from the State. You will hear from us and the defense will have an
opportunity to speak to you. During this past two weeks there has been
so many times when Mr. Geise would be up, and Mr. Bruck would be up, and
Ms. Clarke, and the witness would say something and I would want to jump
up and say hey, what about this, what about this, bring it to your attention.
There is no way humanly possible that I can bring back every single thing.
I have tried. I have written notes. I have tried to keep up, every single
point that I would want to make to you. And so there is -- no matter what
I end up saying during my brief time here with you now, there is going
to be things that I miss. You see, my job is not really to stand here and
tell you what to do. If that's the case, I would be sitting on that side.
I would be one of the jurors. But my job is to point out aspects of the
case and just call them to your attention.
No matter how impassionate that I get about what
I'm going to say to you, no matter how forceful I get, I want you to always
know that I respect that you are the people that have to make the decision.
I don't take that lightly. I don't stand over here and rant and rave and
say do this, thinking that it's just simple with me as giving you words
and you doing it. So I want to say that in advance, that I respect your
decision, regardless, and I certainly do not take it lightly.
Now, the reason we are at this stage is because
of the first stage. And as we talked before, the first stage is as to the
guilt.
You went back in the jury room and you took these
two indictments, Indictment 94-GS-44-907, stated that Susan Smith did in
Union County on or about October 24th, 19 -- October 25th, 1994, feloniously,
willfully, and with malice aforethought kill one Michael Daniel Smith by
means of drowning. And that the said victim died as a result thereof.
Indictment 94-GS-44-906, indictment for murder,
that Susan Smith did in Union County on or about October 25th, 1994, feloniously,
willfully, and with malice aforethought kill one Alexander Tyler Smith
by means of drowning, and that said victim died as a result thereof.
These documents are nothing but that. They are just
documents. These words are just charges. These words, by virtue of this
signature, by virtue of this verdict, now have meaning that transcends
these documents, because you as the jury have said that Susan Smith did
feloniously, willfully, and with malice aforethought roll Michael and Alex
into John D. Long Lake. So ladies and gentlemen, that's what brings us
here today. You have made the first decision.
Ladies and gentlemen, again what I intend to do
is go through parts of the evidence that you have heard. And in no way
again am I ever -- if I misstate something, I'm doing it truly unintentionally.
If I recall something that you recall differently, certainly you stick
with what you recall.
Ladies and gentlemen, if there was one theme in
this case factually, it would be about choice -choice to do different things.
Start with the choice that Susan Smith made with Michael and Alex. You
go back. Every single choice, situation. We all have situations that are
thrust upon us. I'm not saying that. But how we deal with situations, how
we handle situations, that's how we make our choice.
Susan Smith chose to drive to the lake. She chose
to send Michael and Alex down that ramp. Then as heinous as that act was,
she carried it even further. She chose to lie. She chose could run away
from it. She chose to brings us in.
Ladies and gentlemen, Mr. Bruck had said early in
the opening of this phase that the one thing that you just can't do, just
must not do is say Susan never loved her children, because that's the worst
hurt that you can inflict upon her, that Susan never loved her children.
What does that tell us, ladies and gentlemen? That the worst thing she's
concerned about is what people think of her. He's not saying the worst
thing that you say about her is that she killed her children, but that
you might say she didn't love her children.
It comes down to who are the victims in this particular
case. Now, at first blush it's easy to state and say well, it's Michael
and Alex. And the defense says it's Susan, but Susan isn't blaming anybody.
I would like to point out why the defense says Susan is the victim in this
case and why the State says she's not.
The first reason Susan is a victim is because of
her father's suicide. And her father's suicide, you have heard about it
from various testimony, various people. But you also heard that Harry,
he might hurt himself, but Harry wouldn't hurt those kids. Harry, when
he chose to shoot himself, thought enough to call for help after it happened.
We didn't see that from Susan Smith out at John D. Long Smith. We didn't
see Susan Smith telling Shirley McCloud that when she got to the house.
Susan Smith, according to Scotty Vaughan, didn't even remember her father's
suicide.
The night that Susan left the house, it was in such
a suicidal state. Yet that night, that afternoon, starting with when they
went back to Conso with Susan Brown, who offered to go home with them,
to be with them, to be with her children? Susan Brown. Susan Smith declined.
Linda Russell calls. Her mother said felt like something
is wrong. Her mother offered to come over to the house with her, to be
with her, to be with the children. Susan Smith declined.
David Smith called. The same night David Smith calls
and offers to come over to the house. And again Susan Smith declined.
Susan Smith has this need to be with people, this
need to surround herself with people, and yet she's had three people offering,
and each time she declines.
Ladies and gentlemen, if that night at the lake,
at the ramp, Susan Smith intended to commit suicide, then changed her mind,
we have been through this before, why not just pull up the brake? Why not
just pull up the brake? If she bales out of the car, like they say, why
are her clothes not dirty? Why are her clothes not torn? The car door wasn't
locked. Do you remember when her car was recovered? She did not intend
to send those children to her death, why didn't she open the car door back
and try to stop the car? She wasn't even wet. She wasn't wet when she got
to Shirley McCloud's house.
Ladies and gentlemen, they talk about -- you have
had doctors, you have had Ms. Bowers, Arlene Andrews, come in and tell
you about depression. I'm not making light of depression. A lot of people,
a lot of families, have to deal with that. But in that depression, it was
ironic that the doctor said that it was intermittent. She's got the perfect
alibi depression. It's the kind that nobody sees. Nobody sees it, unless
-- because she's always lonely. She's around people, there isn't a problem.
Nobody sees it. It's intermittent. And what did the doctor tell her? She's
not depressed when her lonliness is satisfied. And do you remember, I asked
him, I said "doctor, did Michael and Alex satisfy that loneliness? Did
Michael and Alex satisfy that depression?" And what did they all tell me?
"Oh, yes, she loved Michael and Alex. Michael and Alex satisfied that depression."
Michael and Alex were with her at John D. Long Lake. So we are transcending
suicide, we are transcending depression, and moving towards intent.
Another reason Susan Smith is the victim is because
of her sexual abuse. That is a horrible thing what her stepfather did to
her, and it most likely has lasting scars on anybody involved, but it goes
back to choices. Michael and Alex had nothing to do with what went on between
she and Bev Russell. Michael and Alex had nothing to do with her choice
to engage in conduct with Bev Russell - not as a child, but just weeks
before their death. So I ask you again to weigh, weigh that as you will
as far as the pressure of the Bev Russell arrangement on Michael and Alex
being killed.
Susan went through a series of sexual relationships.
And always it was people taking advantage of her in situations, and Susan
is the victim. But, again, I ask you to look. When she has relationships
at work, when she has relationships at Winn Dixie, who did she have relationships
with? Wasn't co- workers. It was the assistant manager. It was the manager.
And she gets to Conso, who does she have relationships with? Not co-workers.
It's the boss. The boss's son.
Again, ladies and gentlemen, I ask you when you
are looking at Susan Smith as a victim to consider that, to consider her
motive, to consider her reasons behind what she did.
The defense is going to tell you that Susan Smith
is childlike. How many times did you hear that from the stand from different
witnesses - she's childlike, she's childlike? The worst thing that you
could say about that child is that she didn't love her children. She has
an incredible need to please, and that gets her in trouble. That came from
Dr. Halleck again.
Do you remember when Dr. Andrews was up at the end,
and I asked her, she told us how childlike Susan was, how childlike. And
I asked her. She told me that a child is the center of her own universe.
And I submit to you to the extent that Susan Smith is childlike, she truly
is the center of her own universe.
Now, finally, they tell you that Susan is remorseful.
Susan showed the greatest remorse that has ever been seen, and she's sorry.
And I submit very well she may be sorry now. She may be sorry for her condition
she's in now, now that things did not work out like she planned. But was
she sorry when she drops that hand brake? Is she sorry when she ran to
the house, supposedly having no premeditated plan, but from the time she
ran to the car to the house she had Monarch, she had a description, she
told them all this information about the carjacking, but now she's sorry.
Now she's sorry. She wasn't sorry for nine days. She didn't appear particularly
sorry when she was riding with Eddie Harris. Do you remember that? She
was riding with Eddie Harris on the way to give the sheriff the statement.
Some twenty to twenty-five minutes before she showed the worst remorse
ever seen, she was talking about Eddie Harris teaching her how to shag.
She was asking how she looked on television. Again, I ask you to consider
that.
Consider her motivation. Mr. Geise said actions
speak louder than words. I ask you to consider that when you are in the
jury room.
And for the most remorse she's ever seen, and she
gets to Columbia after being arrested for murdering her two children, and
she asks Charlie Webber to get her an absentee ballot. Does she think about
those kids? Is she remorseful about those kids? Think about it.
Ladies and gentlemen, the State's position has always
been the position, continues to be our position, that Susan Smith is selfish
and she's manipulative. And you have had people sit here and she's kind
and she's gentle and she's -- she would never manipulate anybody. You heard,
what, for a day and a half, two days of that. She would never manipulate
anybody.
What I would ask you to do when you go back in the
jury room is look at the videos from the nine days. Particularly I would
ask you to look at the ABC, CBS, and NBC morning shows on November 3rd.
Those particular videos, was she manipulative? Oh, Susan didn't want to
be on TV. She -- we had to make her be on TV. They didn't put words in
her mouth, did they.
The biggest tragedy through that nine days or the
saddest thing, and you watch this on every single video, and I'm asking
you -- no, I'm begging you to review these videos. From the first day,
Channel 7, three and a half, four hours after Michael and Alex had been
rolled in the lake, I would like you to take -- this is the video -- the
first one that you saw when they were at the house. And do you remember,
it's like a raw footage video, like the camera is pointing at the wall
a while, and you hear people talking and everything, and then suddenly
they come over to Susan and David and they put the camera on them. I want
you to look at this video. Four hours after those boys -- they are still
in the bottom of the lake out there. Four hours. I want you to look at
this video and watch Susan Smith's face. As the camera turns on David Smith,
they're in shock. And Susan looks back and goes "oh, Lord," and laughs
and looks up. I beg you. I beg you to look at this, because actions speak
louder than words. As soon as she gives that smile, as soon as she looks
back, she's got her game face on. She's in the game.
She tells him about that man in Monarch, and she
tells him about the carjacking. She even tells him oh, I know I should
start locking my doors. She goes through the whole story while David Smith
is standing right next to her in shock. And for nine days she manipulated
David, her family, their family, the community, the nation, the world.
For nine days she manipulated them.
If you look at David Smith in these last three videos,
it's really -- it's kind of embarrassing for him, if you think about it,
because he told you during the nine days that appeared like they might
be getting back together. And he told you how he wanted to be back together
with her. And during those nine days he defended her. He defended her to
her own mother who wanted her to tell the truth. And he sat on national
television. He said I believe my wife totally. He sat there and poured
his heart out saying that he believed her. He supported her. They had nothing
to do with it. And she sat right on that couch and nodded and agreed with
him.
Another thing that I would look that goes hand in
hand with whatever you do, don't say Susan didn't love those kids. You
watch these three videos, do you count how many times Susan Smith said
it hurts that somebody would blame me. It hurts that somebody would think
that I would have anything to do with it. I know the truth. The Lord knows
the truth that I had nothing to do with it. Is that the sweet girl that
-- what was the guy that was the cornerstone of the search process that
said oh, she would never lie. She would never lie. That was of the guy
that was on Larry King Live, I think, Susan would never life. She looked
every one of us in the eye and lied.
Ladies and gentlemen, I submit to you, I continue
to submit to you, that Susan Smith, her love for herself was greater than
her love for those boys.
We went through in my closing last time the incidents
involving Tom Findlay, and I'll touch just briefly on them. October 17th,
first letter she writes to Findlay when they had talked about separating.
"Who knows what the future holds for our relationship?"
Sandra Williams. She told us she was in love with
Findlay, but they could never be together because of her children.
The letter from Tom Findlay to Susan, it says "yes,
I am talking about your children."
Conversation with Susan Brown. "Sometimes I wonder
what my life would be like without kids."
25th -- 24th with Hickory Nuts, and 25th, the whole
day was filled with Tom Findlay.
And when she gets up to Shirley McCloud's house,
she is wearing Tom Findlay's sweat shirt and her kids, because of her failed
suicide, had just rolled into the lake. When David - her husband -gets
there, and they are going to try to see what they could do about the kids
and talking to television and all of that, what did she tell David? That's
something we didn't have in the last closing. What did she tell David?
"David, I hope you don't get mad if Tom Findlay calls." This is scant hours
since the boys have been dropped in the lake. And Tom Findlay is on her
mind.
The next day sends word for Tom to call. Apologizes
when Tom calls. Through the nine days she sends words to Tom.
On November 1st -- and we have gone over this before
and I would like to go over it with you again. November 1st, after all
these days of agony, all this time spent with her family, on November 1st
she tells Pete Logan she had one wish, that she could turn back time --
of all the things she could wish for, if she could turn back time and have
not told Tom Findlay about his father.
Stated that her concerns at that time, and that's
the 1st. Boys would have been in the lake for a week now. And her concerns
at that time, other than Tom Findlay, were not knowing where the children
were, not knowing if they were alive or not, not knowing if they were taken
care of. Would rather know they were in heaven than someone hurting them
or torturing them. That she didn't mind somebody spanking them as long
as they weren't hurting them. And finally not knowing what happened. This
is what she's telling the officer a week after these boys are in the water.
Ladies and gentlemen, you have been through this
nine days numerous times. You have gone through with the videos. And again
I ask you to take a look at them and make your own determination. You have
had the videos for the nine days. Susan never once mentioned anything about
suicide. Never once anything about remorse. Anything other than how she
appeared on TV. Whoever has got the boys, bring them back. Do you remember
David Caldwell, she called him an S.O.B. based on him accusing her of taking
the children. So Susan, it's important to her that everybody knows she
had nothing to do with this while they are in the lake at her hand, with
her hand on the brake.
Ladies and gentlemen, these videos become tremendously
important when you see Susan Smith looks us in the eyes and says the hardest
part is not knowing. She sits there next to David and says "Michael and
Alex, when you get home, we are going to have the biggest celebration."
She says "I was all excited when we got the news about Washington." She
allowed that whole family to be excited about the potential that maybe
they found Alex. Maybe they found Alex. And again with the knowledge that
those boys were in the bottom of the lake.
Ladies and gentlemen, Mr. Geise told you at the
beginning we are going to try to do the best job that we could for a brief
fleeting second to bring Michael and Alex back to life. You have heard
from family members. You heard from family members on both sides. And I
think not one had anything but fond memories for those boys.
You heard David Smith as he looked at each picture,
he would lay it down and he would tell you and this shows what a happy
little fellow he was. And you had David tell us about Alex and Michael
and the game that he's my brother, and I love him. About David telling
us about Michael being a daddy's boy, about Michael looking out for his
little brother. That's the most excruciating thing I think we had to deal
with in this trial is having that father bring those boys back to life
for us. But unfortunately it's important for you to know that in order
to truly realize the horror of this particular crime. Because the same
little boys -- the same little boys playing in the basket, going to John
D. Long -- going to Legion Park Lake and feeding the ducks. Those same
little boys that were happily riding in those car seats that night. Those
same little boys that were strapped in those car seats were rolled into
that lake. It's not some faceless empty car. It's a car with Michael sitting
on this side in his car seat, and Alex sitting on that side.
And their mother, who was there to protect them.
Do you remember several family members said when those boys were at day-care,
Susan Smith would walk in and their eyes would just light up. And you saw
the videos too. When those little boys would run to their momma, didn't
matter who had them. Walt could have them. But if momma showed up, those
boys would run to their momma, because who is going to protect a child
more than their mother? No matter where those boys were, be it at home,
be it at school, be it in that car, they weren't afraid because they had
their mother. And with their mother, nobody could hurt you. Nobody can
harm you. There are no fears when you are comfortable with your family
and your mother.
Susan Smith that night struck at the heart of every
fear that a child had. We seen the videos. You seen the videos of how that
car rolled into the lake. Again, a couple of things that I want to make
clear about the video tapes. This shows how the car floated. This shows
how long the car floated. The State is not putting this in to say that
this is what anybody would have seen that night, because at nine o'clock
that night, on October 9th, it would have been pitch black out there. Once
those boys went down that ramp, went down in through darkness. When you
see the car fill up, that's not what those boys would have seen. That just
shows how the car filled up. Maybe the boys heard the water coming in through
the car. The defense contends that they were asleep. I submit to you that
if they were asleep, which all indications of crying and screaming indicate
that they weren't, but if they were asleep, they weren't asleep after this.
They weren't asleep after this car hit that water.
So the light most favorable to the defense, if they
were asleep, what do they know? What do they see? When they wake up, they
are in the car. And Alex probably knew a lot less. Michael, being a little
bit older, they knew their momma wasn't there. They knew that for sure.
They knew it was dark. They knew they were scared. They knew they were
alone. They probably were crying, probably were screaming, because their
mother put her hands over her ears and ran to Shirley McCloud's house.
She told Shirley McCloud about this horrible incident down in Monarch.
Ladies and gentlemen, if the car fills up with water
-- and you have seen the videos. And, again, I don't want to stand up here
and throw pictures in your face. The car fills up with water, the boys
probably didn't see it. They felt it. As you know, the car floated, started
going up, and Michael and Alex were strapped in them seats. And it goes
up, first water probably hit their feet. Alex was strapped in on this side.
As the water came in, his feet, his legs, and then his face. Mercifully
they probably never truly understood what happened to them, that their
mother had abandoned them and left them floating in the lake. They probably
never truly knew that, because that water in the darkness covered their
faces. And the car was recovered. For nine days Michael and Alex lay in
that tomb of John D. Long Lake, strapped in side by side in their mother's
car.
Ladies and gentlemen, before you even consider any
penalty in this case, you have to make a determination. You have to make
a determination if there are aggravating circumstances. And the judge will
instruct you on this, whether there are aggravating circumstances in this
case.
Two aggravating circumstances that the State is
looking at at this time are the death of a child under the age of eleven.
I submit that State's Exhibit No. 120 and 121, Michael and Alex's birth
certificates, leave undisputed that Michael and Alex were babies. They
were children. So before you ever start deliberating, you go back in the
jury room, as to each indictment and the aggravating circumstance of a
child under the age of eleven, before you even consider what the penalty
would be, each of you can sign to that aggravating circumstance, because
these children and their deaths are undisputed.
Next, the aggravating circumstances, two killed
by one act. You have answered that in your indictments. So that night when
Michael and Alex rolled into the lake side by side, strapped in those car
seats, that aggravating circumstance was satisfied. So I would ask you
again when you go into the jury room that each of you sign for the aggravating
circumstance, two or more killed by one act.
Ladies and gentlemen, I have said from the beginning
that I don't know that I want to try to tell you -- we have had witnesses
that have set up here and said they would like to tell you what to do.
That's not my province to tell you what to do. What I have to do, and what
my job to do, is to ask you to look at the nature of this crime. You have
heard a lot of evidence in this particular case. A lot of it has been difficult.
We can't turn our head in what Susan Smith did. If Susan Smith is the victim
in this case, and I would ask you to give her life. But if after hearing
all the evidence, find your common sense to the various walks of life,
you determine that on October 25th she went to that lake, got out of that
car, rolled those babies into that lake to die that cold slow death. She
did it because she made a choice. Then I would ask you to consider death.
Ladies and gentlemen there a lot ways this case,
not only should it be a murder, it should be a theft. It should be a robbery.
Because Michael and Alex, and David Smith, and that family, and this community,
have had two precious gifts stolen from them. Now there are a lot at firsts
that David Smith related to you. Got a tape of Michael's first hair cut.
A lot of firsts they won't ever see. First day at school. First day riding
a bike. First car. I don't think -- I would be surprised if Walt ever finishes
that car, a car that maybe one day Michael would have driven. Case of a
lot of firsts that have been robbed from them.
Michael and Alex were Union boys, and they will
never be the football player to grow up to be football players in this
community. They will never be the students that grow up to be the teachers.
And never be the children that grow up to be parents.
Because while this is a case of firsts, it's also
a case of lasts, because this young lady here determined those boys last
meal, those boys last car ride, those boys last breath. She made that choice.
For all the selfish reasons, she made that choice to take those two boys
lives.
Ladies and gentlemen, I could stand here and tell
you a hundred times how horrible this crime is, how gruesome this is, how
wretched it is, but you know all that. You have seen all that. So what
you have to do now is to speak, the twelve of you, as the voice of this
community. And as the twelve of you, you have to speak as to what the price
those two children's lives in Union County.
Ladies and gentlemen, this is the most horrible
crime anyone could ever imagine - a mother severing that eternal bond in
favor of her own selfishness. That's the way the State sees the facts.
You see the facts that way and say that this is the most heinous crime
that you could imagine, that this is the type of crime that is envisioned
by the death penalty.
If you in your deliberations -- and I don't want
to insult your intelligence -- but in looking at it in view in your deliberations
determine that Susan Smith did roll those children down the ramp, did choose
to do so, and did choose to lie about it for as long as she possibly could
for her own selfish ends, if you choose that that is what happened in this
case, then this case is the ultimate crime and does deserve the ultimate
punishment.
We don't take lightly what you do, ladies and gentlemen.
You have heard the facts. I would ask you to bring back a verdict that
speaks justice. That's all anybody can ever ask from you. Thank you.
THE COURT: Ladies and gentlemen, we have been going
now for about forty- five minutes, but I anticipate for the next argument
also being an additional forty-five minutes to an hour, that that might
be a little bit long, so let's go ahead and take a ten minute break, and
then we will start with the next argument. Okay. So please don't discuss
this matter. And we will come back in approximately ten minutes. Thank
you so much.
(The following takes place outside the presence of the jury panel)
THE COURT: All right, court will take a ten minute recess. We will start back at five minutes to eleven.
(Proceedings recessed)
(Proceedings reconvened)
THE COURT: Mr. Bruck, are you ready to proceed, and
Ms. Clarke?
MR. BRUCK: Yes, Your Honor. I would like a copy
of the sentencing verdict form and the aggravating factors form, or the
court's copy, in order to --
THE COURT: We have got a copy.
MR. BRUCK: Ready now, judge.
THE COURT: All right. You do have a copy of the
form that shows the statutory instructions, is that correct?
MR. BRUCK: No, Your Honor.
THE COURT: Mr. Pope, let's go over this one more
time before -- I see counsel apparently intends to make reference during
closing argument. And as you know, under our law, it would be error to
fail to include any mitigating -- statutory mitigating circumstance, even
if not called to the attention of the court by one the parties. So let's
make sure.
I have got the defendant has no significant history
of prior criminal conviction involving the use of violence against another
person.
Mark, that was going to be changed to read the defendant
has no prior criminal -- you can change that. That needs to be changed.
LAW CLERK: All right.
THE COURT: It's in my charge, but it hasn't been
changed on that, on the statutory instructions. So we will change that.
But that's No. 1. The defendant has no prior criminal
record or criminal conviction at all.
MR. BRUCK: Whatsoever.
THE COURT: Or whatsoever I think is the word that
we used.
No. 2. That the murder was committed while the defendant
was under the influence of mental or emotional disturbance. And that is
statutory No. 2 as well.
And No. 3.
And here again, I'm happy to hear from either party
on this, but I conclude would not be applicable. That's statutory No. 3.
That's not applicable here.
MR. BRUCK: I concede that, Your Honor.
THE COURT: No. 4, the defendant was an accomplice
in a murder. Obviously that's not applicable here.
MR. BRUCK: No.
THE COURT: You concede that as well?
MR. BRUCK: I concede that as well, yes, sir.
THE COURT: No. 5, the defendant acted under duress
or under the domination of another person.
MR. BRUCK: We do not claim that factor.
THE COURT: All right. No. 6. The capacity of the
defendant to appreciate the criminality of her conduct or to conform her
conduct to the requirements of law were substantially impaired. That one
is included.
MR. BRUCK: Yes, the gender needs to be changed from
his to her.
THE COURT: Right. And then No. 7. You have just
included the mentality part and not the age part, which I will.
MR. BRUCK: If Your Honor please, we feel that the
age also, under all the circumstances of this offense, could be taken as
a mitigating factor.
THE COURT: Well, that's fine too. I had it in mine.
You had taken it out when you presented yours, and that's why I wanted
-- I didn't want to assume --
MR. BRUCK: No, sir. I took that in error. I didn't
realize we had submitted it.
THE COURT: Age and mentality of the defendant at
the time of the crime.
MR. BRUCK: Yes, Your Honor.
Your Honor, I must apologize, but I had understood
that the statutory -- the nonstatutory mitigating factors in the charge
was going to be charged orally, that the court would charge orally, would
also be enumerated. And that's why I enumerated them as they were.
THE COURT: Well, I did intend to charge the jury
that these are things that the defense --
MR. BRUCK: Well, I realize that, Your Honor, but
my concern here is that if the jury gets only the statutory factors in
writing and --
THE COURT: Wait a minute. Before we go to that,
let's finish. No. 8. The defendant was provoked by the victim into committing
the murder. That I do not find under the evidence would be appropriate
mitigating circumstance.
MR. BRUCK: I agree.
THE COURT: You agree with that?
MR. BRUCK: Yes, I do.
THE COURT: No. 9. The defendant was below the age
of eighteen at the time of the crime. That again would not be --
MR. BRUCK: Correct.
THE COURT: -- appropriate.
And then No. 10 deals with a defendant who has a
mental retardation at the time of the crime. That again would not be applicable.
Is that correct?
MR. BRUCK: That's correct.
THE COURT: So then that concludes the statutory
mitigating circumstances. All right.
Now, go ahead, what were you going to say?
MR. BRUCK: Simply that I had anticipated, and I
should have made it explicit when we were in chambers, that the nonstatutory
aggravating factors that you will charge orally would also be included
in the written instructions. If the court were to fail to do that, we would
very much exacerbate the problem of creating the impression that the statutory
aggravating factors have some superior status to the nonstatutory. And
should the jury so conclude, their deliberations would violate the principle
in Loggins v. Ohio. For that reason, I think that -- however, whether the
court wants to simply enumerate them on -- the way I had thought that it
would be done is the same way that it is done in an oral charge, which
is furthermore you may consider any other mitigating circumstances which
are supported in the evidence. The defendant --these may include the following
circumstances which are asserted by the defendant in this case, colon,
and then you would enumerate on the factors which you are going to charge
orally. In this way, the problem of setting up what appears to be two classes
of mitigating factors, ones favored by statute and the other disfavored,
would be somewhat reduced. We still feel that no distinction at all should
be drawn between them. But I appreciate the court's ruling. However, I
think it would make the problem a lot worst if we don't write them both
down.
THE COURT: I'm not familiar with the case that you
are reciting. Loggins versus --
MR. BRUCK: No, Lockett v. Ohio is the general proposition
that's been reiterated a dozen or twenty times since then. Simply that
the State cannot -- that the defendant must have essentially untrammeled
right and consideration of mitigating evidence in a death penalty case.
Hitchcock v. Florida, of course, is the case that
says that the instructions cannot exclude nonstatutory mitigating factors.
These instructions do not exclude it, but I would submit that if they give
them second class treatment, the effect may be the same. The jury will
figure well, they are blowing smoke about these others, but the judge listed
the ones that are in the statute, and those must be the real ones. Anything
else is probably just some lawyer talking. And that's the -- that's the
peril that we want to avoid, because that is not the law, and that is not
what the jury should think.
As I noted in chambers yesterday, there are some
various gaps in the statutory list. Most dramatically is the fact that
almost nothing good about the defendant, except lack of prior record, is
included in the statutory list. And there is a lot of evidence that's good
about this young woman.
So for that reason we think it's very important
that essentially that the oral instructions and the written instructions
be in harmony in that way.
THE COURT: Do you wish to be heard?
MR. GEISE: We would oppose enumerating them. We
would submit the written form that goes to the jury should stay as it is.
You were going to charge the jury as to those, enumerating what Mr. Bruck
wants. We submit the jury would listen to you, listen to what you are saying.
If you start changing the form now, Your Honor,
we oppose that. You are going to charge it. They get the instruction that
they can consider anything. You are taking the step beyond that and enumerating
what Mr. Bruck wants in your charge. We would oppose changing the form
that's submitted to the jury at this time.
MR. BRUCK: I would just note that Mr. Geise seems
to agree that the proposition that I'll argue before is correct and the
jury ought to understand it. I can't see any good reason why we couldn't
make it clearer. If they deliberated ten hours, your charge would be distant
in their memory. These instructions would be before them.
THE COURT: Well, our court has quite often said
that the words should be taken in their plain meaning. And the court --
the statute says the statutory instructions as to aggravating and mitigating
circumstances shall be given in charge and in writing. It doesn't say the
statutory instructions as to statutory aggravating and statutory mitigating
circumstances. So I will just -- where it says "furthermore, you may consider
any other mitigating circumstances which are supported by the evidence
in this case, including the following, if supported by the evidence," colon,
and just put those in at that point.
MR. BRUCK: Thank you.
THE COURT: Okay.
MR. GEISE: Your Honor, that would go in in the written
instructions to the jury?
THE COURT: That would go in in the written instructions.
MR. GEISE: And it will be the defendant's assertion
that --
THE COURT: Well, I'm going to tell them that. But,
you see, I don't want to get too far into that, because I'm not allowed
-- they are allowed to consider any mitigating factors that they find in
the evidence, regardless of who asserts it.
MR. GEISE: I understand that, Your Honor, and that's
why it's our contention that when you say you can consider anything, that
that's what goes on the written form instead of writing down what the defendant's
assertions are so that they can stare at it.
THE COURT: Well, if there is no evidence which would
support the argument of a mitigating circumstance, then I wouldn't include
it. But there is evidence of the things that they are asking you to include.
If the jury chooses to believe it or not believe it, that's for them to
do. But these are things that aren't pulled out of left field. These are
things that have been spoken to and have been addressed. So I think it's
proper for the jury to consider them. And under the way the law is written,
I think it's proper to do it. I'll include it.
MR. BRUCK: Thank you.
THE COURT: Are you ready to proceed at this time?
MR. BRUCK: Yes, sir.
THE COURT: All right. Bring us the jury please.
(The following takes place in the presence of the jury panel)
THE COURT: Mr. Foreman, ladies and gentlemen of
the jury, we will now continue with closing arguments.
Mr. Bruck, you may proceed.
MR. BRUCK: Thank you Your Honor.
CLOSING ARGUMENT
Mr. Foreman, ladies and gentlemen, this is my last
chance to speak to you too. And I may take a little longer than Mr. Pope
did.
Mr. Pope told you that either sentence that you
impose will be acceptable to the State. And that was a very fair-minded
thing for him to say and was the proper thing for him to say, and I wish
I could say the same thing. But as you heard from the stand, I represent
a family as well as a client who cannot accept either verdict. I mean,
they will have to, but they can't. And I feel a lot of responsibility on
me right now.
I identified with what Mr. Pope said, that there
has been a lot of evidence in this case, and there have been a million
points, and we have been writing them all down and saying boy, we got to
remember to tell that to the jury. But I know when I stand up here. I got
my notes, but half of them aren't in there. I'm going to forget most of
them. Probably forget most of the ones that I have written down. And I'm
going to sit down and I'm going to think, oh, I forgot to tell them that.
I forgot to tell them this. And I have to tell you that if Susan should
be sentenced to death, I will carry that with me for --
THE COURT: No, counsel, that's not appropriate argument,
sir.
MR. BRUCK: So I'm going to ask you to bear with
me for a little while. I told you at the beginning that in opening statement
in this penalty phase that I felt a little -- I wish I could just do what
you would normally do when you have a problem, and that is to discuss it.
And instead of me talking all the time, just ask you what you think and
ask you for your thoughts, and we could have a conversation. And I feel
like that even more now. And given the evidence that you have heard, I
suspect that if we could do that, I could then sit down. But we can't do
that, as you know, and so I'm going to have to ask you to bear with me
for a little while.
Mr. Pope talked about the thing that no one denies,
and that is that this was a horrible crime. But that's not the issue any
more. You decided that Saturday night when you decided, all twelve of you,
beyond a reasonable doubt that Susan did what she admitted to doing all
along - rolling her car into John D. Long Lake with her two little boys
strapped inside and drowning them. And when you say that, you have said
all that needs to be said about how horrible this crime was.
But if that was enough to know what the sentence
should be, we wouldn't be here, because the sentence could have been imposed
Saturday night when you returned a guilty verdict.
What more have you learned, really, about this crime
since then, about the crime since then, that you didn't know then? Well,
you have got photos of what it might have looked like in sunlight, at high
noon, on May 24th, maybe. But, of course, that's not what it looked like.
And if the sun had been shining, it never would have happened. Those photographs
do not show you what Susan saw, much less what the children saw. She never
turned around. But if she had, she would have seen nothing but blackness.
And that's what a photograph of this crime would look like, if there was
one.
So you have those. And God knows that it was unbearable
to look at, those cars sinking, or that car sinking in the lake, so close
to rescue. You know, you probably don't need me to tell you this, but those
videos are so deceptive in such a painful way, there are divers hovering
around the car. And you know it's not true, but you see it on video, and
you see it on TV, it must be real. It looks like it would have been so
easy to rescue those children, but divers are using life vests. You heard
the testimony. It was in eighteen feet of water. And that car covered most
of that distance in ten or fifteen seconds.
So the truth of the matter is, just what Susan said
in her confession, I knew it was too late. It was too late the moment that
car rolled away from her. Those children could not have been saved. Not
by her. Not by anyone at Shirley McCloud's house. You heard how quickly
they got down to the lake. And if Susan had run that three-tenths of a
mile to the house, and said my children are in the lake, come help me,
and Rick McCloud, Jr. and Rick McCloud, Sr. had done what they did a minute
or two earlier, and come rushing down to the lake, what would they have
seen? They would have seen a perfectly smooth black surface, without so
much as a bubble or a ripple, and they would not have known where to look.
Could she have chased after the car in the water?
Of course not. It was already halfway to its resting point within ten seconds,
in the pitch black, in deep water. The car may have floated for five, four,
three, five and a half minutes. We don't know how long, because we don't
know that the conditions were really similar on that night. But even assuming
that that re-creation, or simulation, or whatever it was, shows you the
time, how could she have gotten to that car? By the time she reached it,
if she could swim out in the blackness and find the car, then what? The
doors are down in the water. She couldn't have opened them against the
pressure. And if she somehow could have, the car would have immediately
sunk, because then the water would have rushed in. And in eighteen feet
of water, pitch blackness, what would she have done? So the truth is that
those six minutes are awful to contemplate, but they do not mean that she
could have saved those boys after they entered the water.
The issue is not whether the crime was bad. You
decided that last week. The issue is not whether Susan Smith should be
punished, because as I told you in my opening statement, you decided that
last week too. That wasn't what you were there to decide. But you decided
it by your verdict, because now there are only two sentences - life imprisonment
and death.
And you heard Officer Mungo yesterday tell you a
little bit about prison. You know, politicians running for office are always
talking about how the prisons are country clubs. But you found out what
Susan's prison is like yesterday. That wasn't any speech or anybody trying
to make a point. That was reality. That's life imprisonment. And that is
punishment.
That is punishment for anybody under any circumstances.
But it is a special kind of punishment for her, because for her, as everybody
has told you -- Officer Mungo said she's never heard of anybody that's
been on suicide watch for eighteen months -- for eight months. It's usually
seventy-two hours.
Dr. Halleck, Reverend White, Sheriff Wells. What
was the first thing that Susan asked for? His gun so that she could kill
herself. Phony? Phony remorse? A show of remorse? You be the judge of that.
Pete Logan, thirty-five years in the FBI. Fooled
by Susan Smith? On her knees, sobbing so hard that she couldn't get her
breath. They were worried that she was going to hyperventilate.
Carol Allison. You remember the FBI agent who became
too emotionally involved. Phony remorse?
And Officer Mungo, who didn't see Susan Smith for
two or three or six or eight hours, like Agent Logan and Sheriff Wells
and Carol Allison. She's seen her every day, just about, for eight months.
She's seen her at the cell door every fifteen minutes, and she's seen her
on video at a time when Susan didn't even know that the camera was on all
the time. She knows. She told you, and now you know.
But this young woman is in the lake of fire. That
is the remorse, the grief, the shame that she feels. And it's not going
to go away any time soon. That is her punishment if you show her what is
sometimes called mercy. So the issue is not whether or not she is going
to be punished.
The issue, given this crime, and given everything
that you know about Susan, and about her family, and about her life, and
about what took her to the lake, the issue is what is the best thing to
do now. That is the issue before you. And that is what I would like to
talk to you about today.
Now, I want to talk to you for a moment about the
-- about the paperwork that you are going to have in the jury room with
you. And I would like to show you this form. You don't need to read it
now because the judge will read it to you and you will have it, but I want
to show you how it's set up. I'll bring this down in a minute. For each
indictment -- and obviously there is going to be one sentence in this case,
but technically there are two indictments. There are two little boys, so
you are going to have to fill out these forms twice to show what your sentence
was. There are two pages - part one, part two.
The first one is the finding of aggravating factors.
And all twelve of you have to sign if you find that there are one or more
statutory aggravating factor. And Mr. Pope said something, which I agree
with, which is you can sign this before you deliberate. You can sign this
form on both sheets for both indictments before you start talking about
the case, because I agree with Mr. Pope that the statutory aggravating
factors, both of them, that the State rely on are proven, obviously. There
are two victims. That's one. And they were both under the age of eleven.
That's two. So we can fill this part out. You can fill this part out without
a whole lot of discussion, and then get down to work. And that's a -- this
is actually what your decision is about.
Page two has A or B, and you fill out one of them.
One of them is a decision that reads "we, the jury, in the above-entitled
case decide that the defendant Susan Smith be imprisoned in the state penitentiary
for the balance of her natural life." And it must be signed only by the
foreman. That's one choice.
And the other is death. And that must be signed
by all twelve, and so there are twelve lines.
I mention this now because, you know, jurors naturally
think -- people naturally think there is a punishment for each crime. And
so punishment for murder is death or life. The punishment for aggravated
murder must be death. And although the judge says that it's not that simple,
it would be easy to suppose that the law expects you to impose the death
penalty when you find a statutory aggravating factor, or that the death
penalty is usually imposed, or it's probably imposed, or that that's --
you know, that you impose it unless you can find some really strong reason
not to. None of that is the law. All the finding of aggravating factors
-- and Judge Howard's charge will make this very clear to you. All it means
when you fill out that first form is that you have a decision to make.
All it means is that we have this hearing that we have had for the last
week, and that you must decide on the penalty. It doesn't mean anything
more than that. And that's just another way of saying what I told you at
the beginning of the week, which is that what the right thing to do is
is entirely up to you. The law does not tell you what to do. It doesn't
even give you much of a hint. It leaves it up to you.
Now, each of you are on this jury because you assured
Judge Howard that you could consider everything - not only the facts of
the crime, but also the facts about the person who committed it, and all
of the circumstances about her, and all of the circumstances about her
family and about this community, and everything that has been testified
to from this witness stand. But Mr. Pope, when he made his very capable
closing argument to you a moment ago, really tried to pull back from that
and just tell you over and over again what we all already know, which is
that the facts of the crime are so horrible that they call out for the
death penalty, and that's how your decision should be made. And the point
was made, as I expected it would be, that the fact that we have brought
you evidence about Susan Smith amounts to the claim that Susan, poor Susan,
is the real victim, that you should think of everything that you have heard
from us and Judy Clarke and me as some kind of claim that Susan is a victim
and you should feel sorry for her and therefore you should give her life.
Well, I don't know I need to dwell on this too much, but I do want to remember
with you what the reason was why we presented the evidence about Susan
Smith's entire life, going all the way back generations to show you her
bloodline and her genetic inheritance and her susceptibility to pressure,
and coming all the way forward, right up to October 25th, and beyond.
We told you about her early childhood, about the
discord and the chaos and the bitterness that was having such disturbing
effects on twelve year old Michael Vaughan when he was sent off -- had
to be sent off to a residential facility. He was twelve. His personality
-- and you heard he had never lived an independent life. He still lives
at home with his mother and he's had terrible problems. His personality
at that time was pretty much set. Susan was two, and hers was not. That
was -- she was wet clay at that time, and she was drinking and you know
how little kids do. Everything that was going on in the family. And at
first Dr. Andrews described it as just not too different than what happens
in really, really bitter divorces. But it began to get worse, and it began
to assume -- it began to assume an atmosphere or reality of violence, a
threat of death, a threat of suicide, a threat of murder, of Susan's mother.
And that was the atmosphere when she was three, and she was four, and she
was five.
Two parents, one of whom we know was depressed.
The other whom was described by the counselors at the time Linda as depressed,
a house ruled by depression and the threat of violent death and disaster.
That was her formative environment. And that was the environment that formed
the young girl whom the neighbor Iris Rogers described as anxious and sad
at aged five, at aged six.
Then we told you about her father's suicide. And
I'm not going to go over all of the evidence you have heard about suicide,
but I think we have all learned a great deal. It is not just a death. As
David Cox, the therapist, told you yesterday, it is a kind of death that
sows misery and heartbreak ever afterwards. You heard Tomi and Junior Vaughan
on the witness stand seventeen years after Harry Vaughan's death still
struggling to cope with the guilt and the grief that that death left on
them, and they were grown up. They were grown. But Susan was six and a
half that morning when Iris dropped her off into an empty house. And she
began the struggle that goes on today to deal with how her father left
her.
And we told you about Susan's growing depression
in early teens and her obsession with suicide and her primitive childlike
suicide attempt. And we told you about the sexual abuse by her stepfather.
And right now I would like to say a word about Beverly
Russell. We heard a great deal about that sexual abuse incident, the incidents,
the series of incidents, and how it was handled. And I have to say how
it was mishandled. And the reasons that you can draw as to why it was covered
up and hush hush the way it was. But I would like -- at least like to say
about Mr. Russell is that yesterday he did what a father should do. There
has been so much heartbreak in this family. And I want to make it very
clear that no one who did anything that had an effect on Susan's life deserved
the trouble that this family is in now. And that is one of several reasons
why we do not blame anyone else.
And we told you about the -- something about the
circumstances of this -- of her marriage to David; how it began so happily
and with such great hopes, and how it turned into turmoil and something
of a replay of the marriage between Harry and Linda. And we told you about
her love for the children. From witness, after witness, after witness,
without a single discordant note.
And we told you about the deepening chaos of her
life during the last weeks, and especially the last days, and the last
hours before she and her children were at John D. Long Lake.
And we told you about her bottomless grief and remorse
now.
And we didn't tell you any of that to make you feel
sorry for her. The point of all of that was that those were the facts that
you needed to understand what led her to the lake, to understand this crime.
That is why we presented that evidence. And if the State had had any evidence
about that to present, they could have done so too, but they did not.
Now, part of the terrible puzzle of this case is
something that we all know, and it doesn't have to be proved by witnesses.
And that is that mothers who love their children don't just up and kill
them for a passing fantasy. That is something about people that is true.
We all know that. We start at that. That is a given. That is common sense.
So it was a very important fact to determine, as
best we are able to determine, what is inside somebody whether she loved
her children or not. And we began heartbreakingly with the autopsy testimony.
And as Dr. Conradi found two well nourished, well cared for, beautiful
little boys.
And then we went back to every single person that
either side called, including David Smith. Remember what he told Katie
Curic on the Today Show. Dr. Andrews read you verbatim his description
of Susan, of Susan, as a mother. They were her heart, just like they were
mine. They were her life, just like they were mine. And what David said
about Susan and her mothering of those boys is exactly what every single
other witness who knew them has said. And if there was anybody to say differently,
these very competent prosecutors would have found them and brought them
in here. There isn't, so they didn't.
Now, still, you know, I mean, Dr. Andrews life has
been given over to looking at things like this and trying to prevent things
like this. You heard she worked at the institute where the donation in
memory of Michael and Alex went when money was given to the university.
This is her work. This is her field. This is what she does. And so the
first thing she looked for was a disturbed mother-child relationship. And
she gave you a long list of the sorts of things that an expert like her
who has seen hundreds and hundreds of child abuse situations of one sort
or another would look for, and she didn't find any of them.
So you have to answer the question not why would
Susan Smith kill her children, but why would Susan Smith kill her children
whom she loved, whom she loved dearly, because those are the facts that
have been established in this courtroom. The judge will tell that we do
not have to establish any facts that we rely on beyond a reasonable doubt.
But for that fact, her bond with those children has been established beyond
a reasonable doubt.
So that's the mystery. And to try to solve that,
we brought you Dr. Halleck. And, of course, all of the testimony that was
introduced -- and I explained to you at the beginning of this phase why
we introduced so much background testimony and so much testimony about
Susan's mental state at the guilt phase. It was simply that when the claim
of motive that she killed these children in order to improve her chances
of snaring Tom Findlay, when that was raised at the guilt phase -- it didn't
have to be. It had nothing to do with whether she was guilt of murder or
not. But the State says that's what they were going to prove. And we could
not let that go unchallenged, because it is not true. So we introduced
a lot of the sentencing information at the guilt phase. But that information,
as the judge will tell you, is still before you and can still be used by
you, just as much in this phase as if we had introduced it beginning this
past Monday.
Dr. Halleck looked at the whole history of Arlene
Andrews found -- do you remember, Mr. Pope did a lot of cross-examination
of Dr. Andrews. We put her on just to establish the genetic information
before Dr. Halleck. And she said that she had provided all her findings
to Dr. Halleck. And it was all this cross- examination about in, other
words, if you have given information that's in error to Dr. Halleck, then
his evaluation will probably be wrong too. And she said yes, of course,
as he relied on it. I'm sure you were waiting to find out what the information
was that Dr. Andrews had that was wrong. So was I. And we are still waiting.
The only attack on Dr. Andrews information were those little courtroom
tricks that I talked to you about, and I won't go back over the cross-examination
about did you talk to so and so, did you know that so and so said thus
and such, Ann Campbell and Billy Shaw, and it turned out they hadn't said
thus and such at all, and Dr. Andrews was right. And you never heard any
more about it. And that -- so the facts that Dr. Andrews relied on and
that amazing investigation she did, more than a hundred people and volumes
of documents, is unchallenged. That is all the evidence in the case. As
I say, we don't have a burden of proving that then. It's the State that
has to prove their version beyond a reasonable doubt. That even if we did
have that burden, we would have met it, because all the evidence in this
case is as I am saying to you now.
The question in the case and in a way, to some extent,
certainly the difference between the State's version last week, at any
rate, and what Susan said in her confession is that Susan said she went
to the lake in a suicidal crisis, and that she went to the ramp to kill
herself, and at the last minute she jumped out and the children were left
alone. And the State said no, no, it was all a plot. She schemed the whole
thing up. She cooked up a story about some black guy carjacking her, and
she did all this to cook up with some theory about Tom Findlay who she
had just told about that she was sleeping with his father would turn around
and have completely different feelings for her when she was a carjacking
victim. That's the State's motive. And they expect you to believe that
a woman with a relationship that she had with her children and the unstable
and obviously dead-as-a-doornail relationship she had with Tom Findlay
would have made that trade in a calculated way. Now, the State doesn't
get to just say that. They have got to prove it. They have to prove it
by evidence, by witnesses, by things that make sense. And it is your job
to determine whether they have.
Who is Dr. Halleck? He's the only psychiatrist or
psychologist that has testified in this case for either side, which is
an interesting thing, and I'll get to in a moment. But first of all, who
is he? It's obvious from his qualifications that he talked to you about.
He's not a vain person at all when I pulled it out of him. He's sixty-six
years old. He's been a doctor for forty- three years. And although he works
on court cases, and clearly is one of the most distinguished forensic -
that is, courtroom - psychiatrists in this country, he treats people who
are sick all the time.
The most revealing thing about Dr. Halleck to me
was that at age sixty-six, or up until a few weeks ago, he was running
an emergency room service. He was working in an emergency room, with people
coming in in all kinds of desperate shape. That's what he chooses to do.
He chooses to help people. He would be the doctor that would see eighteen
year old Susan Vaughan when she's taken too many pills in her suicidal
crisis. He knows that kind of practice. And yet he's someone of such achievement
and distinct and impartiality that when somebody came very close to murdering
President Reagan, and the guy who did it - John Hinkley - claimed to be
insane, both sides within twenty-four hours - you heard his testimony -
called Dr. Halleck and said will you evaluate John Hinkley for us and testify.
And that's pretty impressive. I mean, he must be quite an expert, when
both the United States Government and the defense in the insanity case
of the century both called him and asked would you be our expert. But what
happened next is even more impressive. He said no. And the reason was that
he thought both sides wanted him to say Hinkley is insane, or Hinkley is
not insane, and to testify to that in court. And he doesn't think that
a doctor should do that. He thinks the doctor should say what his condition
is and let the jury decide. And so both sides said well, never mind, we
don't need you. And he passed on the insanity case of the century. And
the next year the United States Congress changed the law so it would be
like Dr. Halleck thought it should be. That's who he is. I don't know how
we could have brought to you anybody more objective, more thought of, more
able to help you do your job than Seymour Halleck.
And he went about things in a very smart way. I
mean, obviously he was dealing with a young woman who is about the most
famous liar in the United States, and he couldn't take her word for anything.
But that didn't mean that he could just say I won't talk to her, because
she's the only one that was there at the ramp that could possibly say what
was going on. So he had a problem. And he described to you in a lot of
detail how he figured out whether she was telling the truth about her condition,
about her thoughts, about her mental state, about what was going on. And
the biggest thing he told you -- I mean, clearly he was drawing on forty-three
years of experience, and he was -- he was going about it based on his training.
But he was able to explain in very common sensible way how he concluded
that she was being truthful. And the biggest thing he told you, and the
most important thing, was that he gave her so many chances to help herself
and to make herself look crazy. She knew, or she knew by the time he was
finished, that all she had to say was I heard voices telling me to do it.
And he probed and he probed. Were those really voices, or was that just
you having a debate with yourself? And she knew that if she did said oh,
those were really voices, that that would be -- that could be a symptom
of major mental illness, schizophrenia, which is the disease that most
people have when they are found to be legally insane. But she didn't say
that.
What about dissociation? Do you remember he explained
the idea of your mind leaving your body and sort of you are doing things,
but your mind is completely somewhere else, split off. He gave her a chance
to say that. That could be insanity. And, of course, if she were found
insane, she would be in much better shape. She wouldn't have to serve a
life sentence, much less the death penalty, but she wouldn't say that either.
Why wouldn't she? Because it wasn't true, and she wanted to tell him the
truth. And that is how Dr. Halleck -- that is among the ways that Dr. Halleck
concluded that she was being truthful with him.
Another way was that she was always trying to make
herself look better than she was really feeling at the time. She was even
then, and in all the trouble she was in, knowing that this was a psychiatrist
that I had asked to see her, to help us defend her, she still wanted him
to think that she was doing better, that she was wasn't as depressed, she
wasn't as miserable, or she wasn't as suicidal as she really was. And that
all led to him to conclude, as I think it would anybody using their common
sense, that no matter what lies she told during those terrible nine days,
she was being truthful now. And Dr. Halleck concluded after reviewing the
whole history, everything that I have just passed over quickly now, that
she was in a depressive crisis, in a depressive episode. And in the irrationality
of that moment she made the irrational choice of suicide.
Now, Mr. Pope says choices, choices, choices. Yes,
she made choices. But the choices did not make any sense. They were irrational.
Harry Vaughan made a choice, too, to kill himself. Put that shotgun between
his legs and prop it up against his heart and blow his chest out. That
was his choice. He chose to do that, but it didn't make any sense. This
is who he left behind. His heart. And he knew that, I suppose, in a way,
somewhere in his mind, when he pulled the trigger. And as he was dying
with his chest in shreds he changed his mind, like Susan changed her mind.
Suicide is often that way. It is ambivocable. The body of the person wants
to die but wants to live at the same time. The choice of a depressed person
in crisis, in a suicidal crisis, does not make sense, and there is no point
in trying to hammer that square peg into any round hole to make it fit.
It doesn't make sense. It was irrational. And so was the terrible tragic
thought that took over her mind that if she was going to die, her children
needed to die with her, and then they would all be in Heaven together.
That does not justify what she did. It doesn't make it, as you found by
your verdict, as Judge Howard instructed you, any less murder. But it's
what happened. That's what happened.
Why did she leave? We will never know. Dr. Halleck
gave you his best estimate, his best guess. And some of it is common sense.
It is easier to roll a car down a hill than it is to make yourself sit
in it while you do it in the dark, no matter what your state of mind is.
The mind wants to die but the body wills to live. We all know that. That's
common sense.
Why in the state of mind she was in did she think,
as she sometimes told Dr. Halleck, that when she jumped out the children
were with her, and of her, and her heart, and her life. That when she jumped
out, that the children were safe too? Sometimes she told them that she
thought that's what she thought. And other times she didn't know. She didn't
say that. And he concluded perfectly logically not that she was trying
to hide that or conceal that, but that she truly does not know what she
was thinking at that moment. If she had wanted to make herself look better,
if she had wanted to lessen her guilt or to get people to feel sorry for
her, it would have been so easy to say I didn't know the children were
there. I was under the illusion that the children were somewhere else,
or that they were coming out with me, and it wasn't until somewhere or
some other point that I realized that they were gone. Who could have said
any different? She was the only one there, but she didn't say that. In
the end she just acknowledged, and Dr. Halleck found that that memory is
not there. That the turmoil and the confusion and the fear and the anguish
blotted all that out. You were left piecing together the clues.
Well, Mr. Pope gives you a theory about mental state,
about intent, about what Susan meant to do, what was in her mind, what
her intention was. But now that all the evidence is in, that theory is
really just a lawyer talking. Where is the evidence of that?
We presented Dr. Halleck, who explained psychiatry
behind these conclusions and explained --he talked about depression. He
talked about suicide. Who did the State call?
There was a crucial moment in this case that went
by so quickly that if you blinked you missed it. There was a break yesterday
afternoon about 5:30. And when you came back in, I stood up and said that's
the case for Susan Smith. And you may not have realized this at the time,
but at that moment the State had an opportunity to call as many witnesses
as they wished to rebut everything that we had presented over the last
two or three days. They could have started calling witnesses that moment,
gone on until the end of the day, and we could have come back this morning,
and they could still be calling witness. And they could be calling witnesses
tomorrow, if they had any to call. And if they had a psychiatrist, whether
it was Dr. Halleck's attainment or not who could go through this evidence
and show where he was wrong, and where the facts he relied on pointed somewhere
else, if they had a psychiatrist, or a psychologist, or any sort of expert
who has seen a lot of these cases before and could say no, when you look
and you piece these things together, it could really be that she did it
for Tom Findlay, and that there wasn't any suicide about it, that was their
chance to call that person and have you hear what he or she had to say
and evaluate their testimony. If they had any ordinary people, not experts,
but people who have known Susan Smith who had any different information
than what you heard from all those defense witnesses, that's was their
opportunity. It's called rebuttal or reply. We wouldn't get to present
anything more normally after that. That was the last chance, and the State
has it, under our law. And you saw what they did with it. Mr. Pope stood
up and you could barely hear him. He said no, that's all the State has.
And the case was over, and the State had rested without any reply at all.
Now, you know, I have been talking to you about
we have shown you this and we have shown you that, but it's the State that
is supposed to do the showing before someone gets sentenced to death. And
what new did they show you in this case, in this phase of the case?
Mr. Geise, at the beginning of his opening statement,
told you with great confidence and vigor that the State was going to prove
to you this motive, this Tom Findlay -- that she killed the kids for Tom.
But by the time even that phase of the case was over, and we had presented
just some of the evidence about who Susan Smith really was, and what was
really likely to have been going with her that night, it was -- Mr. Pope
was very careful to back away from that and say well, actually, we don't
have to prove a motive, and the motive doesn't matter, and don't worry
about the motive. And, indeed, he was right, and Judge Howard charged you
that the State is not required to prove motive. But they are required to
prove it now. I don't mean legally they are required to. They are required
to by common sense, because they are required to prove to you that this
crime, and this young woman, and this disaster that happened at John D.
Long Lake that night should be punished by death. And they still haven't
proven it. And they haven't proven it, not because the lawyers didn't do
anything or they didn't do their homework. The State has prosecuted a wonderful,
wonderful case. These are two excellent lawyers. And the State has spent
a huge amount of money presenting every bit of evidence that could possibly
be presented to you. They have done everything that they could do. The
reason they haven't proven it is that it ain't so. And when the truth isn't
there, there is a limit to what a lawyer can do. That's why they haven't
been able to prove to you that she did it for Tom. Instead they take little,
little bits and pieces of evidence out. They are still telling you about
that comment that Susan Brown made on October the 17th, the sort of the
comment that every single mother with two tiny little children is sure
to have said out loud dozens of times during a week I wonder how my life
would be different if I hadn't married so young and had kids. There is
still flogging that now, even though Susan Brown told you last week that
it didn't mean anything to her then, and it doesn't mean anything to her
now.
And then they go through this selective chronology.
What else did they have? A great deal of attention about this one remark
that Susan is supposed to have made to David. He remembered it as being
on the way over to Toney Road from Shirley McCloud's house about don't
get mad but, you know, Tom would be calling, something like that. Well,
this is the -- Tom is someone she knew from Conso. Friends from Conso had
already come to be with her at Shirley McCloud's house. She knew that people
were going to be coming around. People were going to be gathering. This
is a small town, and that would be normal. But one of her friends from
Conso was somebody that David knew, because his girlfriend, as you heard
from Dr. Andrews, had actually been following and stalking Susan. Susan
was seen. And what about the last boyfriend that David caught with Susan?
He beat him up. So what would be more natural than to first of all expect
that among the people that she is working with day in and day out that
Tom Findlay would also, along with everyone else from Conso, be calling,
and that he might ought to say something early on to David before something
ugly happens. And this is proof of a plot to murder her children?
And I could go on. Judy Clarke talked already with
you, and I don't want to bore you by going through the same points again.
I think you could see what was wrong with this theory then. And it certainly
hadn't gotten any stronger now. The State really -- I mean, they tried.
They certainly took a shot at it. There was the wedding album and the clothes.
And I think the theory originally was that, you know, this was sort of
a coffin for her life as a mother. She was going to throw everything -the
wedding album, the maternity clothes. It turned out they mostly weren't
maternity clothes. They belonged to all different sorts of people. And
it really proved is the wedding album was, you know, something that she
brought to work, and with all the other young women they were passing around
that wedding album. She tosses it in the trunk and never takes it out.
Her car was a rolling junk yard, like a lot of our cars, I suspect, are.
And, you know, that sort of -- these sort of fits and starts of trying
to prove something, and, as I stated, kind of petered out. In the end they
never even mentioned it. In the closing argument, they didn't mention it
again today. This is all known as circumstantial evidence. You had an instruction
on circumstantial evidence from Judge Howard before, and he's going to
charge it to you again, because the same rules apply.
I would like to tell you a little bit about what
that charge means, because it's given in sort of legalese, and it's really
not entirely clear what he's saying. I mean, I don't blame Judge Howard
for that. These were just the instructions that people give. But what he's
going to tell you is that there is a test for circumstantial evidence.
To make it clear with an example, you are driving along late at night and
you really tired and you pull over to the side of the road to go to sleep,
because your eyes are beginning to close and you are afraid you are going
to fall asleep at the wheel. And the next thing that you know as time goes
by, you have been asleep, there is a policeman at the door and shining
a flashlight in your face and he's arresting you for drunk driving, and
you haven't had anything to drink, and you can't figure out why. And you
ask him, and he shines this flashlight over on the shoulder of the road
and there is some beer cans on the shoulder where people toss them. Evidence
of the crime. Circumstantial evidence that you pulled over and went to
sleep because you had been drinking and there are all the beer cans to
prove it.
Now, we don't convict people in a court of law,
much less sentence them to death, on circumstantial evidence like that.
And that's what Judge Howard is going to tell you.
The test is this. That when the State relies on
circumstantial evidence to prove something about the circumstances of the
crime, they first of all have to prove the circumstances itself; that is,
the beer cans were really there. But they also have to prove that there
is no other reasonable explanation for why those circumstances are the
way that they are. No other reasonable explanation.
Now, in the beer can story, there is an obvious
explanation, which is that people litter as they drive down the highway,
and somebody else could have thrown those beer cans there. But the really
important part of what Judge Howard is going to tell you is not that. All
of that is self evident. It's that when a reasonable explanation can be
found that favors the defendant, you don't just give those circumstances
less weight, or downgrade them, or sort of move them to the back of your
mind. You are required by law to throw them out of the case completely
and give them no consideration whatsoever. That is the instruction. You
cannot rely on circumstances for which there is an innocent reasonable
explanation. You cannot rely on them at all.
Now, I want to underscore that rule, because the
State's case is entirely circumstantial for why Susan Smith should be sentenced
to death. It is all based on little stuff, like wedding albums, and chance
remarks, and Susan thinking that Tom Findlay would call and not wanting
David Smith to be mad. Even though her interest in having Tom call seemed
to have faded out almost immediately and was never mentioned again over
the nine days. She did it for Tom, and she had certainly forgot about it
pretty quick. Those are circumstances for obvious alternative explanations.
Now, this rule about circumstantial evidence reflects
a lesson that our legal system in England and here has learned the hard
way over centuries, which is circumstances can lie, and innocent people
can be convicted, or even executed, in error based on circumstances like
that. And that's why the law says that if the circumstances don't really
prove anything, you throw them out of the case. They are dangerous. You
don't mess with them. You leave them alone. And that is what the circumstantial
evidence charge that Judge Howard will give you requires you to do.
Now, Mr. Pope talked about choices. And, of course,
for whatever reason and no matter how tangled and irrational and hopeless
her thinking, she did make some kind of choice. And that choice will haunt
her for the rest of her life, which, if you show her some mercy, will be
spent in prison. We don't deny that a choice was made, and that it is a
choice for which she's responsible. Susan has never denied that. Who is
the doctor that said she was not insane? Our doctor. She has never denied
responsibility for this crime. And yes, she made choices.
But the person that made the choices that the State
wants to describe - the manipulator, the callous schemer, the person who
constantly craves attention this strong willed person, the person that
moves people around like pieces on a chess board -that person has been
invented out of whole cloth. The State has not found one single witness
to put their hand on the Bible and swear that they ever laid eyes on such
a person - certainly not such a person in the form of the Susan Vaughan
Smith. That person is an invention of a couple of very good trial lawyers.
And that's all she is.
You have this chronology here, this map, but there
are this huge gaps in it. This is -- you know, the State's job is to present
the evidence that will really help you make an accurate choice. But we
get onto the night of October the 20th, and according to this, nothing
happened. Well, what do we know really happened? That was the night when
Susan fell asleep on the bed with Michael while David was there, and David
went into her purse and found the letter from Tom Findlay. And he and his
girlfriend, who had been following Susan, took that letter out, made a
xerox copy of it, and snuck the letter back into the purse. So that's what
happened here in this blank.
Now, David, I'm sure, at some level -- I mean, David
loved Susan and Susan loved David, and maybe in some way in his memory
he thinks now that he really hoped to get back with her at that time. But
the truth of the matter is that he was having his girlfriend follow her
to get evidence on her at that time. And that's -- those are the facts.
And the next morning another blank. Nothing happened,
according to this prosecution exhibit. But we know what really happened
was that David came over, was nice to her, although he had -- she didn't
know, but he had the letter from Tom Findlay. And he was nice to her, and
he cleaned the carpet, and then he had sex with her, and then he began
to bring up what he knew from the letter, that she didn't know he had seen,
and led her to believe that her phone was tapped or that he was somehow
spying on her or spying on her thoughts, and tricked her into admitting
much more than he knew and much more that was in the letter. She admitted
to him that she had had a sexual relationship. And you can construe it
however you want - that she was being used sexually by the head of this
big company, or that she had snared him in some way, whatever it was -
and use your common sense about the nature of that relationship. But whatever
it was, she admitted it. And ah-hah, he had her good then, and he was going
to tell.
A lot Susan's problems were somewhat imaginary in
the sense that she thought they were bigger than they really were. But
this was a problem that was really pretty big in reality. She was going
to lose her job. She was going to be disgraced. What would happen to her?
She had two little children. She would, she felt, be all alone. And this
is when panic begins to set in.
Now, please don't think that what I am telling you
in relating these facts that are in evidence is that David Smith shares
any of the blame for the deaths of these children, because I do not think
that. God knows Susan doesn't think that. And I am not saying it. Like
everything else, I'm only talking about these things, because we have to
understand, if you are going to make the right decision, what led Susan
to the lake.
Okay. So this is the day when nothing happened,
according to the prosecution. You know now from the evidence that this
is where this --really where this crisis really started.
And then we have Sunday, another day that nothing
happened. Nothing happened that fits the State's theory. But this was the
night that Tom had this conversation with Susan, who was really becoming
unglued. She thought that David had tapped her phone and knew what she
was thinking, and he knew all kinds of things. She wanted to tell Tom that
she had made this terrible admission to David about Tom's father. But,
of course, Tom didn't know anything about this. So in the end what she
ended up saying was that she had a relationship with her own stepfather,
which Tom had -- because Tom was saying well, what is it? What is it? What
are you concerned about? So she admits about Bev Russell. And her world
is further unraveled and closing in on her and started to blast.
On Saturday, a day when nothing happened, she had
called the phone company and wanted the phone company to come and check
her line. This was real. She didn't just say later on that she suspected
her phones were tapped. She thought that then, and you heard proof of it.
And then Monday, a day that nothing happened, except
it says Hickory Nuts, the phone man actually came. Of course, there was
no tap, because David knew all about Susan's life from a letter that he
had stolen from her, that she did not know anything about.
And then we come, of course, to Tuesday. That was
what was unraveling. That was what was weighing on her. And by Tuesday
she is in such distress and so unable to cope and so unable to make sensible
decisions, but knowing that it wouldn't be long now before everybody knew
what a mess she had made of her life, the kind of mess as you heard from
witness after witness it is not very surprising among survivors of incest.
Does that justify it? Does that mean she didn't make a choice? No. But
she made the sort of senseless pathetic choices that young women who have
been where she has been through often make. Is that a defense? No. Is that
something that you need to know? I think probably so.
And so we are coming up on Tuesday night, and she
makes one desperate inane attempt after another to somehow seize control
of the situation, first telling Tom that she slept with his dad. He reacts
the way any person normally would. Then going back and wanting comfort
from him, and he repels her. Again, it's pretty much the way that you would
expect someone to under these weird circumstances -trying to give her some
reassurance, but at the same time the message is get away from me. And
then one really helpless attempt to come back and say I was just kidding,
as if you can ever take words like that back. And by this point it's like
get away from me. Those weren't the words he used, but that clearly was
the message he gave. And at this point she begins to snap - not yet on
the outside, but on the inside.
Mr. Pope had made a big point about sort of how
convenient that she was only depressed when she's alone or she's only --
or she has this mask. I think you know that there is nothing implausible
about that at all. Toni White, the reverend who is here because she knows
Susan, but gave you such a good description of what it is to be depressed
and to have a competent happy face in the world, and you think that everyone
is as miserable as you are and they also are just putting on an act. Because
when it's inside your own mind, and you don't know what's wrong with you,
and you don't know that anything is wrong with you, and you have never
had treatment, and you have never had medications, how are you supposed
to know that something is wrong? You just think that you are supposed to
struggle. You just think that's what life is - a sad, miserable, scary,
wretched world, and everyone else seems to be coping better than you, so
that really proves how wretched and miserable and unlovable you are. Well,
that's where -- that's where she lived. That's what it was like to be Susan
Smith. And now the very valiant nature of her struggle, that heroism, you
know, that she -- that she mustered to put on that face and to be cheerful
and outgoing and loving to people is wrapped around her neck as proof that
she wasn't depressed.
So Mr. Pope keeps saying she could have reached
out, she could have reached out, she could have reached out. Why didn't
she. Well, as a matter of fact, she did. Did she reach out to David? Well,
no. I mean, granted, he said can I come over. But this is the person with
whom she had had this horrendous conflict on Friday, and he had gone away
mad the night before because he had come back over and wanted to sleep
with her. And this time she said no. Is that where she is likely to have
gone for the comfort that she needed? That's probably understandable that
he said -- she said I can't talk to you about it.
Her mother called, and she did not turn her mother
away. Her mother said she would come over, and there was back and forth
about what to do. And in the end it was decided that she would go to her
mother's house for what she needed, which was what she often does, because
she is so dependent on her mother, just like a little kid. Dr. Andrews
said she stopped developing at the point. She grew up, but in many ways
she never grew any older than she was when she had her kids. And she still
goes to momma's all the time. And that is what she started to do this time.
And there is the pictures of the diaper bag. She packed the stuff for the
kids. She was going to bathe the kids at her momma's house, and those things
are in the car. They are in the car. That's where she was going. She was
not going to murder her children. She was going to her momma's. But her
momma wasn't going to be there for her yet because she had to go to a T-ball
game of one of Scotty's kids. So there was a time gap. Susan waited a little
while and then she started driving, and then she was crying, and the tears
were streaming down her face, but she didn't want her momma to see her
like that, so she kept driving. And the blackness came down upon her, and
her world collapsed inside her mind, and we know what happened after that.
Then she lied. Now, if Susan hadn't lied, you could
imagine how this case would have been different. We would not be here.
She's on trial for her life. Horrible as this crime was, it is not the
crime why she is on trial for her life. It is the lie. We have told you
several times that no one justifies or excuses this lie. It was hurtful,
and it was wrong, and she should not have done it.
But it is something else that you must got to understand,
as best you can. And it is not that hard to understand. This is a family
that puts a premium on privacy, on keeping things secret. And there it
turned out to be a lot of secrets. Little six and a half year old Susan
Vaughan had this whole sense that there was something secret about what
had happened with her father's death. It was not talked about. She cried
alone. She mourned her father alone, just as she would soon mourn her children
alone, in secret. Bev Russell described going into that room and finding
her collapsed on the toys over at the Russell's on the first day after
the children died. She was mourning those children.
Do you remember the cry that Margaret Gregory heard
when she first arrived at the house, this mournful, most mournful wail
that she had ever heard. It was Susan in the bedroom mourning her children,
but she could not help. Why couldn't she help? Well, I mean, she could
have, and she eventually did, but why would it have been so hard? Well,
it would have been hard for anybody to say what she had done. It would
have been harder for someone who loved your children so much and were so
enmeshed, that they were the only success in her life. They were all of
her identity. They were all she was. It is wasn't ugly and awful and disgusting
and hateful, according to her. And she had just destroyed that. What was
she to do? Well, what was she to say?
And remember the times she told before. She told
on her stepfather. The State would have you believe that that was some
kind of manipulative thing to get attention. But what was the real effect?
It was humiliating. It was embarrassing. It was a nightmare for her. She
brought shame upon her family. She was told by her mother that she would
ruin his political career, that the whole thing was hushed up. To a remarkable
extent you heard from Jenny Ward, it was hushed up. She told, and nothing
but terrible shame and pain and guilt and heartbreak came down on her.
That was Susan Vaughan Smith's experience about telling the truth.
And then there was a much stronger reason for why
it was so hard to tell. And you see that reason from the witness stand
in witness after witness. Susan could not bear to do anything to hurt her
family. And she had just done something that would reduce all of them to
a rubble of pain and heartbreak, such as neither you nor she could possibly
imagine, and what was she supposed to do? I told you, I used the analogy
in opening statement that it was like she was standing on the end of a
diving board over -- twenty feet over a concrete --an empty swimming pool
that had no water in it, and she knew that she was going to have to do
a dive face first into that concrete. She knew she had to to do it, but
she didn't want to, and she waited as long as she could. But when I listened
to these witnesses in the last couple of days, I realized that that isn't
quite the right picture, because the real picture is that every person
that she loved in the world was standing ahead of her on that diving board.
And in order for her to dive off, she had to push them first. And that
was what telling meant. And that was not disordered thinking. That was
not cognative distortion. That was not mental illness there. That was real.
That was really the situation. And is it any wonder that she hesitated
and hesitated and hesitated? And while she hesitated, she had to do something,
so she went into the happy face, or in this case, the victim face mode.
She told a story that had so many holes in it that within minutes law enforcement
knew it was fishy, and within hours knew it was really fishy.
If the country, if the people watching on TV, had
known what the people close to Susan, the law enforcement folks had known,
no one would have been fooled more than overnight. This wonderful story,
this tremendous ruse, this fabulous hoax. She had no explanation for why
she -- no explanation that made sense for why she was on that road that
night. She had thought it out ahead of time, she would have been carjacked
on the way to her mother's, where she was supposed to be, instead of on
the way to Mitch's, even though she was coming and he wasn't home, and
on and on. Things that Judy pointed out to you at the last phase of the
trial.
This thing was indeed thought up as she ran up the
road to Shirley McCloud's house. And that's exactly where she thought of
it. And that's why it had so many holes in it. That's why it was so easy
to see through so quickly.
The Wal-Mart. She picks the only store that has
greeters, as you heard from the sheriff, and it turns out that greeters
knew her and knew her kids. She had had ten minutes to think this thing
up, ten calm minutes, she would have been a little better than that. But
she made choices and now she's going to have to pay for them.
And I guess the last thing I want to say about that
is that you have a choice too. You have a choice too. But your choice is
made on the different conditions than hers was. The one thing, your choice
is made in daylight. And it's made with the help of eleven of your neighbors.
And you have as much time as you need to make your choice. If Susan had
had five clear minutes to think, if she had sixty seconds of clear thinking,
she would not have made the awful choice she made. You have as much time,
as much help, as you need.
One of the most unbearable things about this trial
to me was the moment when Dr. Halleck said she's on Prozack now, which
is an antidepressant drug. It's been very effective in treating depression,
and it has somewhat alleviated her symptoms of what's now major depression.
And he said had she been on Prozack then - and millions of people are -
this probably wouldn't have happened. This probably wouldn't have happened.
You have a choice, but you can make a better choice
than she made. I guess that's what it comes down to.
Now, David Smith testified. And I agree with Mr.
Pope that that was about the most unbearable thing that any of us have
seen in this courtroom. Of course, the victims' families sit on both sides
of this courtroom. And it's not going to help David for his family to crush
what's left of the hearts of the people on the other side.
But I still want to say something about David's
testimony. If any of us who have children have the experience, when you
have a child, your heart is no longer your own. It goes out in the world,
and it is helpless. It is as vulnerable as your little helpless children.
And that experience of having a child, having children, is the greatest
joy in life, but it is also the greatest fear, because your heart is so
easily hurt and it is so hard to protect it. And when David was on that
stand who in this courtroom didn't feel that anguish for him when he said
"I didn't know what I would do." Who hasn't had that thought about their
own children. If something happened to my child, I don't know what I would
do. I don't know of anyone that wasn't moved by that.
But now you have to ask what do you do with that?
Did you understand him to say -- did you understand the meaning of that
terrible pain to be that he would feel better, that it would help the situation,
the best thing to do for him, the way to comfort him, would be to sentence
Susan to death? That's not what I heard. I heard something different, which
is that this was his chance to remember Michael and Alex in a way that
meant something. And he was entitled to that moment, as painful as it was,
and it was right and proper and fitting that we should all have been there
to witness it. In a way, I felt, on the other hand, that there was something
else very important going on to which we are all intruders, because on
another level the person who needed to hear David was Susan. I don't know
if you were able to take your eyes off of him long enough to look at her
during that testimony. But if you did, you know what I'm talking about.
It was as if there was no one else in the room but those two. And David's
testimony was not so much about her punishment as it was part of her punishment.
And a part of her punishment that she will carry back to her prison cell,
regardless of what your verdict is, and that she will carry it with her
as long as she lives.
I could talk to you more about the evidence. I have
been talking to you a long time already. You heard it just as well as I
did. So I think I'm through with that part, with the facts that you heard,
but I do want to talk to you a little bit about how to approach from your
decision.
This Bible has sat on that desk for the whole trial.
And each one of you put your hand on it before voir dire, and every single
witness put their hand on it. And I would submit to you that it may be
time to look inside and see if there is anything in here that bears on
the decision that you have to make. You may not have realized this before,
but there is a death penalty sentencing proceeding in the Gospel. It was
reported by a court reporter whose name was John. Now, he didn't have a
machine like Mr. Watts does. It's not a verbatim record, but he took down
enough so that we have a very good picture of what happened in this trial,
and I would like to remember it with you. I think you probably all know
it by heart.
And John's record of that trial reads like this.
Jesus went unto the Mount of Olives. And early in the morning he came again
into the temple and all the people came unto him and he sat down and taught
them. And the scribes and pharisees brought unto him a woman taken in adultery.
And when they had set her in the midst, they say unto him master, this
woman was taken in adultery in the very act. Now, Moses in the law commanded
us that such should be stoned, but what sayest thou?
And then John drops out of the verbatim transcript
and explains what was going on. He says this they said tempting him that
they might have to accuse him. And the background to that is that the law
that governed -- the criminal law of the City of Jerusalem at that time
was the Old Testament, and it was written as a Bible. And it was written
in the Bible that the penalty for adultery was death by stoning. And if
anybody said otherwise, they were committing the crime of heracy, a blasphemy.
And that was a capital crime. And the people that had asked him that question
wanted him -- they thought they had him pegged. You see, they thought that
Jesus was -- I guess nowadays we would call it a bleeding heart liberal
- somebody who doesn't have any concern for the rights of society but only
cares about the poor criminal. They thought they knew --they thought they
could predict what his response would be. It would be something along the
lines, or maybe he was one of the members, one of these organizations that
doesn't believe in the death penalty, like a social worker. And that he
would say something like well, I know it says that in the Bible, but that's
really a kind of a steep punishment for adultery. And I don't really know
if that's -- if that would be the right thing to do. Why don't you just,
you know, do something else, or give her another chance. And had he said
that, that would have been a capital crime. That would have been blasphemy.
That would have been denying the law in the Bible. But that's not what
he said at all.
Instead of contradicting what you law required,
he said this. The first thing he said after they put this trick question
to him -- the first thing he did, he stooped down and with his finger wrote
on the ground as though he heard them not. So they pressed on. So when
they continued asking him, he lifted up himself and said unto them he that
is without sin among you, let him first cast the stone at her. And then
he stooped down and wrote on the ground. And they which heard it, being
convicted by their own conscience, went out one by one, beginning at the
eldest, even unto the last, and Jesus was left alone and the woman standing
in the midst.
Now, of course, we know the rest of the story of
Jesus. But we don't know the names of any of those people that he spoke
to that day, the ones with the rocks in their hand ready to carry out the
death penalty that was commanded by law. We don't know who they are. We
don't know their life stories. We don't know a thing about them. They are
vanished in the midst of time. And we only can guess. But we can guess
what happened next for them, because they had gone to the temple to stone
this woman, and they hadn't done it, and they had gone home presumably
that night and they saw their friends and they saw their neighbors. And
don't you know that people probably asked them what happened? I bet you
really gave it to her. And the response would have had to have been well,
no, actually we didn't. And then the next obvious question would be well,
why not? Didn't she really do it? And the response would have had to have
been oh, no, it wasn't that. Wasn't that. She was caught in the act. It
was beyond a shadow of a doubt. She did it all right.
Well, what's up? Why didn't you do it? And then
you can imagine the sort of the awkwardness that was followed, how hard
it would be to explain. Well, I don't know. We were going to do it, and
everybody was ready to do it, and -- well, there was this, you know, preacher
there, and he said some things and it didn't really make that much sense,
but he wrote on the sand and everything. I don't really remember what happened.
But it's just --everybody just kind of changed their mind and it didn't
seem like that good of an idea. And anyhow, look, we didn't do it, okay?
Don't you think that's sort of how the conversation
went? And that was that. And those people probably went through their lives
wondering if they had done the right thing; wondering if they had maybe
failed in their duties as good citizens for the City of Jerusalem, whether
they stood up for law and order like they should have, maybe whether they
assured their duty as citizens and jurors. Of course, we know that they
didn't. They didn't at all. We know what happened. We know who touched
their hearts, and how, and why. But they didn't know that. They were just
ordinary people. There was no explanation of what was happening that they
could have. It would be years before the Gospel was written.
Well, there were some differences between the procedure
that was followed and the law that had to be applied at that sentencing
hearing in the City of Jerusalem nearly two thousand years ago and the
law that Judge Howard will give to you in a moment. And I would to mention
them, a couple of those differences. One is that your decision must be
unanimous. At the temple that day everybody had their own rock, and anybody
who chose to do it could throw that rock at that woman and smash her with
it. And, therefore, it was -- in order for her to live, everybody had to
decide not to do that.
Your responsibility is a little different, because
your verdict for death, for death, must be unanimous. In other words, you
each have a stone. There are twelve in all. But no stone may be thrown
unless all twelve agree. And what that means as a practical matter, you
know, each of the people in front of the temple that day were tested for
each of them. Individually all by themselves passed that test.
The test that the law imposes on you is a little
bit different, because death cannot be imposed unless each of your names
appears on this verdict form. Which means that, unlike the people there
that day, it may not be that all twelve of you will be tested. It could
be -- I don't think this will happen, not from the evidence that we have
heard, but it could - it could happen - that the form will come to you
with nine names already on it, already signed for death, or ten, or eleven,
and only your name is needed to write the verdict for death. That could
happen. And if that does happen, then perhaps the other jurors are not
being tested with you at all. And perhaps only you will be tested and the
other eleven will be part of this test.
Now, I guess could you say that wasn't really much
of a test, and they knew who on earth could think that you should be stoned
to death for committing adultery? Well, that may seem obvious to us today,
but it wasn't obvious then. It wasn't obvious then. And there may come
a day when our understanding of mental illness, and of suicide, and of
depression, and of what's fair and what's not, advances to the point that
it will be obvious that Susan Smith should not have been sentenced to death.
But apparently it's not obvious to everyone now. And that's why this is
a test. If it was easy, it wouldn't be a test.
One thing that's not present in the transcript,
according to John, of that trial is any indication that a prosecutor was
there, much less the prosecutor of the ability of the one that you just
heard. And who knows had there been one reminding people of the harm to
the community and the terrible heinousness of the crime and horror of what
had been done. Who knows if the results might have been different and that
that woman would have died under the pile of rocks. The whole episode would
have been just one more millions of episodes of man's inhumanity to man
never would have made the Bible and none of us would have ever heard about
it.
But what all this means as a practical matter has
to do with the instructions that you will hear from Judge Howard. He will
give you the aggravating factors. And you will have this both in writing
and orally from him. He will list the aggravating factors which you know
about, and he will list the mitigating factors. Mitigating is just a word
that says in favor of life. It means in favor of life for whatever reason.
He will tell you that you are not limited to the mitigating factors that
he and I have been able to think of in the evidence. But you can consider
any reason for life at all that you think is fair.
And then he will also tell you that you can impose
life for no reason at all. That is the law. It doesn't really mean for
no reason at all, because no one would do something for no reason at all.
It means for the sort of reason that you can't express, except you feel
in your heart that it's not the right thing to do. The law recognizes that
now as it did not in Jerusalem two thousand years ago. The instructions
in a way give you permission to do what those jurors that day did. They
didn't have facts of the crime that made them think that the law didn't
apply or that death shouldn't be imposed. They just realized because they
had heard a lesson about humility and the limits of human judgment, and
they saw this woman, and they knew in their hearts that that lesson applied
to this situation and they didn't take her life. And they couldn't have
said why. They couldn't have explained it, but it felt wrong.
What that instruction that you will get from Judge
Howard means is that if it is nothing more than the prompting of your conscience
and the dictates of your heart that makes you hesitate, that makes you
doubt, that makes you wonder whether the death penalty is the right thing
to do, then you are to listen to that, and that is your decision. That
is not violating the law. That is not violating your oath. That is following
the law. That is being faithful to your oath.
I've talked much longer than I thought I would and
I'm almost done. I apologize. I just want to say one more thing to you.
I've been Susan Smith's lawyer for a few months now, along with Judy Clarke.
And as you know from the witness stand, it's been our responsibility to
try to guide through a family in the worst sort of trouble that any of
us could ever imagine a family being in. And anybody who has been anywhere
near this awful disaster cannot help but have the overpowering desire to
do something --to do anything to lift these peoples burden just a little
bit. But most of us can't. There is really not anything that we can do.
I have to say that, although you didn't ask for
this job, and it's been long, and it's been hard, and I know it's been
draining, but I have to say that I do rather envy you, because the twelve
of you can do something. You cannot make things very much better, but you
can bring them a little bit of blessed freedom by your verdict. And that's
not something that really anyone else could do, much as so many people
in the courtroom wished that we could. But you can.
Judy and I have watched over Susan, and now it is
time to entrust her to you.
I would like to ask you to watch over her family,
whose broken hearts are now in your care.
I would like to watch over Wendy, who told you yesterday
how she does not know how she will tell any more bad news to her little
boys.
I would like you to watch over Iris Rogers, who
still wonders about the day she let Susan off to an empty house.
I would like to ask you to watch over Billy Shaw
and Debby Green and Kay Dillard, who still wonder if there was something
-- do you remember Kay Dillard yesterday? If there was something different
they could have done.
I would like you to watch over Jenny Ward, who did
her job, but it turned out that just her doing her job was not enough -
the DSS person.
I would like you to watch over Leigh Harrison, that
very poised young woman - Susan's cousin, really more of a sister - who
testified in the first phase of the trial, and talked about how she had
always worried about Susan. But when she had children, she thought she
would be okay, because the children at last were the anchor for her. And
don't you know that now Leigh wonders what could I have done.
I would like you to watch over Officer Mungo, who
is a professional, who is a correctional officer, who is not going to come
in here and give you her opinion. But you knew from listening to her she
hopes for Susan. She hopes for the best for her. And Susan, whatever your
verdict is, will go back into her custody. And it will be her job to help
carry out whatever you decide.
I would like you to watch over Hedy Harrison, who
testified through her tears - that's Susan's aunt - about the agony that
all of this has been for the family, and who relived that terrible moment
when Susan said to her during that nine day period "I wish I could take
back time." And Hedy now knows that she was trying to tell her, but she
couldn't bring herself to do it. And if she had told Hedy first, it maybe
could have done something to protect her as the legal system unfolded.
Not to get away with this, but to protect her a little bit so that when
all the truth came out that she would not have been so, so, so alone.
I would like you to watch over Walt Garner, who
loved these boys as much as anyone, and who still goes home, and will go
home tonight, to his house with that shop out back and Michael's little
fingerprints still stuck on that old car that Walt can't bring himself
to go back to working on any more.
And I would like you to watch over Scotty, and over
Linda and Susan's mother.
And despite everything that you have heard, I'm
going to ask you to watch over Susan too. She doesn't know that she can
go to the people who care about her. That, as you heard, is part of what
is wrong with her. That is part of her illness. She said in her confession
"I never felt so lonely and so sad in my entire life." Her judgment is
impaired, but yours is not. Yours is not. So this time you go to her.
She will be all alone again soon. You remember Officer
Mungo's description of her cell. She will be all alone soon to resume her
awful, awful struggle with suicide. Just do this for her. Don't leave her
just yet. Stay with her just a little while. Watch over her.
THE COURT: Ladies and gentlemen, I have a legal
issue that I need to take up for just a couple of moments. And it also
appears, in view of the time, that we should order in lunch for you. I
think what we will do is let you order lunch now. And then I will give
you my charge, because normally it takes them about thirty-five to forty
minutes to actually get lunch here. And during that time I can give you
my charge, and then you will be able to eat and begin your deliberations.
So I'm going to ask you to go to the jury room at
this time. Again, please don't discuss this matter. And you all have --
I guess they are back there. You have the menus for them to look at, and
we will let you formulate your lunch.
We will begin again in about fifteen minutes.
Everyone else please keep your seats.
(The following takes place outside the presence of the jury panel)
THE COURT: Now, under South Carolina law Section
16-3-10, et sec, the defendant herself, Susan Smith, has a right to address
the jury.
And I would like to ask, first of all, if you know
counsel - Mr. Bruck or Ms. Clarke - if Ms. Smith has indicated to you --
first of all, you had an opportunity to talk with her about that?
MR. BRUCK: Yes, Your Honor, we have talked to her
about it.
THE COURT: So you know what her decision has been
with regard to that?
MR. BRUCK: Yes, I do.
THE COURT: What is it?
MR. BRUCK: She does not wish to address the jury.
THE COURT: All right, sir. And you have gone over
her right to do so with her. And in your opinion she understands that right?
MR. BRUCK: Yes, sir, Your Honor.
THE COURT: She has indicated to you that she does
not wish to address the jury.
MR. BRUCK: That's correct.
THE COURT: Ms. Smith, under our law you have a right
to address this jury, to tell them anything that you would like to tell
them. And that right that you have you can exercise at this time.
Now, just as with your right to testify or your
right to remain silent, you can, through the advice of your attorneys,
seek their advice, but ultimately, of course, it's your decision as to
whether or not you exercise the statutory right that you have.
Mr. Bruck has told me that he has gone over this
with you, and that it has been up to you. At this point his understanding
of your decision is that you did not wish to address the jury?
THE DEFENDANT: That's correct.
THE COURT: But I need to make sure that indeed that
is your decision. Is that your decision?
THE DEFENDANT: Yes, sir.
THE COURT: And, again, I say, just as I have said
earlier, that I don't want you to ever come back and say that I wished
I had spoken to the jury, and I didn't really know I had a right to, or
somebody else talked me out of it, or anything of that nature, because
it is your decision. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And, again, your decision to what?
THE DEFENDANT: That I do not wish to make any comments
to the jury.
THE COURT: Very well then. Okay.
Well, I find that your decision in that regard is
knowingly and intelligently, voluntarily made based upon our discussions,
based on what counsel has told me and has represented to the court.
MR. BRUCK: Your Honor, in view of that, unless it's
been added, the last draft that I had, the charge does not include instructions
on the failure of the defendant to speak on her own behalf or testify,
and I would ask that instruction be given.
THE COURT: Right. And I would include that, based
upon my understanding of the law, so we will add that at this time. That
instruction also did not have added in about the meaning of life and death,
which is being added at this time as well.
So we will take an additional ten minutes while
we include that instruction. And then hopefully the jury will have finished
their lunch order, and then I'll give my instructions at that time. So
let's take fifteen minutes. We will start at twenty minutes after eleven.
(proceedings recessed)
(proceedings reconvened)
THE COURT: Is the State ready to proceed?
MR. POPE: State is ready, Your Honor.
THE COURT: Is the defense ready to proceed?
MR. BRUCK: Yes, sir.
THE COURT: All right, sir, if you will bring me
the jury.
MR. BRUCK: If Your Honor please?
THE COURT: Hold on one second for me, please.
MR. BRUCK: I don't think we have yet seen the final
version of the statutory instructions to be submitted in writing to the
jury.
THE COURT: Do you want to take a moment to look
at them?
MR. BRUCK: If I could.
THE COURT: Yes, sir.
MR. BRUCK: I didn't know they were ready.
THE COURT: I believe you have seen them, haven't
you, counsel?
MR. GEISE: Yes, sir.
THE COURT: Is there anything on them that you see
that we need to --
MR. BRUCK: No, sir, they appear to be --
THE COURT: Doesn't comport to anything that you
see that --
MR. GEISE: No, sir.
THE COURT: All right. Very well, if you will bring
me the jury.
(The following takes place in the presence of the jury panel)
(Whereupon, at 1:24 p.m., the jury was charged by the Court)
THE COURT: Mr. Foreman, ladies and gentlemen of the
jury, it now becomes your duty -- now that you have heard the evidence
and the arguments of counsel, it now becomes your duty to decide what sentence
to impose upon the defendant, Susan Smith. However, you are asked to determine
the existence or nonexistence of any statutory aggravating circumstances
first. You see, under our law, you can only consider whether or not to
impose a sentence of death if the State has proved an aggravating circumstance
that is set forth statutorily - what we call a statutory aggravating circumstance
- beyond a reasonable doubt.
In this case, the State has asserted two statutory
aggravating circumstances. And they are set forth in an instruction that
will go with you to the jury room that's in writing called Statutory Instructions.
I'm going to give you my instructions orally, tell
you what the law is in South Carolina orally. I also will send into the
jury room at the appropriate time for you to have with you this document
called Statutory Instructions. And it sets forth what I'm about to go over
in terms of these statutory aggravating circumstances. And it also sets
forth some other things called mitigating circumstances, that I will tell
you about in a few minutes.
You will also have in the jury room with you two
documents, each of which has two pages. Actually these are the same documents.
And, as I say, each of them have two pages. These are the actual sentence
sheets by which you will tell us what your verdict is with regard to the
findings as to the statutory aggravating circumstance and also as to the
sentence that shall be imposed.
There are two sets, because of the fact that there
are two indictments. And so from a legal standpoint, you will actually
be rendering two sentences, because there are two indictments and two charges.
So you will be sentencing as to each of those two charges.
So as we go through this, when I refer to giving
a sentence, I'm actually talking about two sentences and two sets of documents,
because there are indeed two charges of murder for which Susan Smith has
been found guilty.
Now, as I stated, in this case the State has asserted
two statutory aggravating circumstances. These are listed on the form that
I'm now holding in my hand called the Statutory Instructions. You will
have this form in the jury room with you. So you don't need to memorize
this.
The State has asserted the following two designated
statutory aggravating circumstances. They are as follows:
No. 1. Two or more persons were murdered by the
defendant by one act or pursuant to one scheme or course of conduct.
And then the second aggravating circumstance, statutory
aggravating circumstance that the State has asserted is, that the murder
was of a child eleven years of age or under.
Now, these are the only two statutory circumstances
or the only two circumstances, rather, that you may consider as "aggravating
circumstances.".
What is a statutory aggravating circumstance? Well,
it is a fact, an incident, a detail, or an occurrence which the General
Assembly - that is our legislature - has declared by statute would make
worse, that is, would aggravate the offense of murder when the two of them
occur together. In other words, it's something that increases the enormity
of the crime, or adds to the injurious consequences of the events.
If you find the State has proved one or both of
those statutory aggravating circumstances beyond a reasonable doubt, then
there are two sentences that you are to consider in this case. One is the
death penalty. And the other is life imprisonment.
Now, upon this sheet of paper that I hold in my
hand are written the word Statutory Instructions. You will have this paper
in the jury room with you during your deliberations.
The body of this form states, "in determining whether
the defendant, Susan Smith, be sentenced to life imprisonment or death,
you - that being you the jury - shall first determine whether the State
has proven the existence of one or more the following statutory aggravating
circumstances beyond a reasonable doubt.
1. Two or more persons were murdered by the defendant
by one act or pursuant to one scheme or course of conduct.
2. The murder of a child eleven years of age or
under."
If you do not find unanimously the existence of
one or more of those two alleged statutory aggravating circumstances, then
you would indicate that on part A of the sentencing verdict form, which
is entitled Jury's Verdict On Proof Of Aggravating Circumstances. It has
that title right on the top. And at that point, Mr. Foreman, you would
then sign the form and that would end your deliberations, because you cannot
consider the death penalty as a sentence in the case if you have not found
one of those two statutory aggravating circumstances.
Now, if, however, you unanimously find the existence
of one or more of the alleged statutory circumstances, aggravating circumstances,
that I have just listed for you, then you would have to fill out part B
of that first sentencing form or verdict form. And that reads as follows:
"We, the jury, in the above-entitled case unanimously find beyond a reasonable
doubt the existence of the following statutory aggravating circumstance,
or circumstances." And it then has a blank lines. Whichever, or both, if
you have found both, that you find, you would then write that out on those
lines.
Now, in that instance then all twelve members of
the jury sign. In other words, if the jury should find that the State has
failed to prove one, or both, of those aggravating circumstances beyond
a reasonable doubt, then you just sign, Mr. Foreman, on the first part,
because that's where it says we, the jury, find that the State hasn't proven
them.
However, if the jury has found that the State has
proved one, or both, of the aggravating circumstances, then you write in
which one, or which ones, the State has proved beyond a reasonable doubt,
and then all twelve of you sign it. And that would then end your filling
out of the first verdict form, part 1, as to that particular indictment.
Now, when I say as to that particular indictment,
as I explained to you, there are one set of these forms for each indictment.
And as you will see, it has up at the top Case Number 94-GS-44-906. And
then the other one says 907. If you look on the indictments, you will see
those numbers as to which case applies to which. So that's why you fill
out one for each of the cases.
Now, as I say, if you have found that the State
has proved one or both of the statutory aggravating circumstances beyond
a reasonable doubt, you would then go on to deliberate upon the question
of sentence and to decide what sentence Susan Smith should have.
The second part of the verdict form then is called
the Jury's Verdict On Sentence To Be Imposed. By this form, which I hold
in my hand now, part A, that is the first part, you, the jury, could sentence
the defendant to life imprisonment. Let me read the text of this verdict
form to you.
It says "complete either A or B as appropriate.
"A: We, the jury, in the above-entitled case decide
that the defendant Susan Smith be imprisoned in the state penitentiary
for the balance of her natural life." And then a place for you to sign,
Mr. Foreman.
If it is the verdict of the jury, then only you,
Mr. Foreman, need sign if life imprisonment is the verdict of this jury.
Now, in deciding whether to sentence the defendant
to death, or to life imprisonment, you are to understand each of these
sentences in their plain and ordinary meaning. That is to say, if you sentence
the defendant to death, she will actually be executed. If you sentence
the defendant to life imprisonment, she will actually be imprisoned in
the South Carolina Department of Corrections for the rest of her natural
life.
That is what these sentences mean. And that is how
you are to understand them during your deliberations. You are not to speculate
that these sentences mean anything other than what I have just told, because
what I have just told you is exactly what will happen to the defendant,
depending upon the sentence you impose.
Now, the second part of this form then is the part
of the form to be filled out in the event the jury has decided unanimously
to sentence the defendant to death.
By this form which I hold in my hand, is Part B,
you, the jury, can sentence the defendant to death. Please understand and
observe that immediately below the body of the verdict there are twelve
lines. And this is where, should you decide to sentence the defendant to
death, each one of you would have to sign your names. It has a place for
you, Mr. Foreman, and then the remaining jurors to sign their names. It
is the law in this state that a sentence of death must be unanimous. It
must be a unanimous verdict, and that each and every juror sign his or
her name to that sentencing form.
I'm now going to instruct you -- I have gone over
this form. And as I say, it's the same form for each of the two charges.
The first page, as I say, is where you tell us what decision the jury has
made as to aggravating circumstances that the State has alleged, the two
that the State has alleged. Again, the State has to prove those beyond
a reasonable doubt. And if the State has failed, then you would fill out
Part A, and that would end your deliberations.
If on the other hand, they have proved one, or both,
beyond a reasonable doubt, you would fill in which one, or both, and then
all twelve of you would sign. That would then mean that you now are to
--or at that time are to then consider which of the two sentences shall
be imposed against the defendant.
You would then turn to the jury's verdict upon sentence
to be imposed, as I have explained that to you. And we will come back to
these again at the conclusion.
Now, I want to take a moment and instruct you on
what you may consider in making your decision.
As I stated to you earlier, the statutory aggravating
circumstance is a fact, or an incident, or a detail, or an occurrence which
the General Assembly has declared by statute would make worse, that is,
would aggravate the offense of murder when the two occurred together. In
other words, it's something that increases the enormity, or adds to the
injurious consequence, of the offense.
If you find the existence beyond a reasonable doubt
of a statutory aggravating circumstance, then you are permitted - you are
not required - but you are permitted to sentence the defendant to death.
The law also requires, though, that you consider
any mitigating circumstances which are supported by the evidence. You must
consider mitigating circumstances, because if you are to make an individualized
assessment of the appropriateness of the death penalty in this, the defendant's
case, which the law of this state requires you to do, then evidence about
the defendant's background and character is a relevant consideration. In
this regard, it is also relevant for you to consider any positive attributes
of the defendant's character in mitigation of punishment.
Now, there are certain mitigating circumstances
which are set out by statute. That is, again the General Assembly has recognized
these in the sense of setting them forth in the statute.
What is a statutory mitigating circumstance? It
is a fact, an incident, or a detail, or an occurrence which the General
Assembly has declared by statute would reduce, that is, would mitigate
the offense of murder.
In other words, it is a circumstance recognized
by statute as one which in fairness and mercy may be considered as extenuating
or as reducing the moral culpability for the commission of the act of murder.
A mitigating circumstance is neither justification
nor excuse for the murder. It simply lessens the degree of one's guilt,
that is, makes her less blameworthy or less culpable.
The statutory mitigating circumstances you may consider
in this case -- well, again, I have set forth statutory mitigating circumstances
which you may consider, should you find them to be support evidence.
This reads as follows:
"In determining whether to sentence the defendant
to life imprisonment or to death, you may consider any of the -- I'm sorry,
"you may consider any -- "you may consider any of the following statutory
mitigating circumstances:
No. 1. The defendant has no prior criminal record
whatsoever.
No. 2. The murder was committed while the defendant
was under the influence of mental or emotional disturbance.
3. The capacity of the defendant to appreciate the
criminality of her conduct or to conform her conduct to the requirements
of the law was substantially impaired.
4. The age or mentality of the defendant at the
time of the crime.
Furthermore, you may consider any other mitigating
circumstances which you find are supported by the evidence in this case,
including the following:
No. 1. That prior to the offense, the defendant
was a competent, loving mother, hard worker, and contributing member of
her community.
No. 2. A sentence of death will bring further grief
to many of the surviving relatives of the victims.
No. 3. The defendant is remorseful.
No. 4. The defendant has experienced the effects
of depression, parental suicide and incestuous sexual abuse.
No. 5. The defendant has demonstrated that she will
be a cooperative and complying inmate.
You may consider any one, or all of these, if you
find them supported by the evidence. Those latter ones are what we call
nonstatutory mitigating circumstances. And this is one which is not provided
for by statute, but is one which serves the same purpose. In other words,
there are some which the General Assembly just simply could not contemplate
in advance, because they may be specific to particular cases. But it does
not mean that they are any less important for your consideration because
they have not been set out under the statute, specifically.
Now, while there must be some evidence which supports
a finding by you that a statutory or nonstatutory mitigating circumstance
exists, you need not find the existence of such a circumstance beyond a
reasonable doubt.
Furthermore, although I have instructed you that
any finding that a statutory aggravating circumstance has been proven,
if such a finding is made by you, that it must be made unanimously and
it must be proved beyond a reasonable doubt. As I explained a moment ago,
no such requirement exist for you to consider mitigating circumstances.
Therefore, in deciding the appropriate punishment in this case, each individual
juror must consider each mitigating circumstance which he or she finds
to be supported by the evidence. It is not necessary that the entire jury
unanimously agree on the existence of any mitigating factor before you,
as jurors, may consider that fact. Rather, the existence of mitigating
circumstances, and the weight to be accorded to any such mitigating factors,
are matters which each juror may determine for himself or herself.
Nor, as I told you a moment ago, is it necessary
for the existence of any mitigating circumstance to be proved beyond a
reasonable doubt before each of you may consider it. The defendant does
not bear the burden of proving the existence of any mitigating circumstances.
Rather, you are to consider each and every mitigating circumstance which
you find from the evidence, regardless of what part or what source in the
evidence it comes from.
In reaching your decision as to the sentence, you
will consider the aggravating and mitigating circumstances. While an aggravating
circumstance must be found before you can even consider the death penalty,
once such a finding is made beyond a reasonable doubt, you may sentence
the defendant to death, even though you find the existence of a mitigating
circumstance or mitigating circumstances. In other words, the existence
of an alleged mitigating circumstance is not a bar to the imposition of
the death penalty.
Finally, if you should conclude that a statutory
aggravating circumstance exists, you may consider whether the defendant
should be sentenced to life imprisonment for any reason, or for no reason
at all. This is what has been traditionally referred to as a sentence based
upon mercy or a sentence of mercy. And should such be your decision, then
you would so indicate by returning to the court the sentence of life imprisonment
form, which would be signed again by the foreman alone.
In other words, you can choose to sentence to life
imprisonment if you find a mitigating circumstance, or you can choose to
sentence to life imprisonment even if you find no mitigating circumstance,
or for no reason at all. That is as an act of mercy.
In any instance, should you choose to sentence to
life imprisonment, as I explained, the foreman alone would be required
to sign the sentencing form.
In deciding whether to impose a sentence of life
imprisonment or death upon the defendant, you are not to speculate on which,
if either, of the sentences is more likely to deter other persons from
committing similar crimes in the future.
There is no evidence before you as to whether the
death penalty will deter crimes like the one in this case any more effectively
than will life imprisonment. Therefore, you should disregard anything that
you may have heard one way or the other on this subject, and should set
aside any preconceived opinions which you may hold as to whether life imprisonment
or the death penalty is a more effective deterrent to murder. Such questions
cannot be resolved in a trial of this nature. Therefore, they should play
no role in your deliberations, and you should not even mention that subject
in the jury room. I instruct you that your sentencing decision must be
based only on the evidence that has been presented in this case pertaining
to the particular circumstances of this crime and the character and background
of this defendant.
In considering the punishment to impose, you may
consider any evidence before you concerning the victims' personal characteristics
and the unique loss to the victims' family, that the defendant acts of
murder have caused. Likewise, you may consider any evidence of the impact
of this entire matter upon the surviving family members of the victims,
including the family of the defendant, as well as on the community as a
whole.
To the extent that you are called upon to make decisions
regarding factual issues, I again remind you that you are the sole judges
of the facts, and that the State must prove the aggravating circumstances
and the particular circumstances of the crime which they assert or rely
upon beyond a reasonable doubt.
In making your determination, of course, as I explained
to you earlier in this trial, you may consider the credibility, which simply
means the believability, of those who have come and testified here before
you. And, again, you can ask yourself certain questions:
How did they appear? Did they appear straightforward
or were they hesitant?
What was the ability of that witness to have seen
or heard or experienced with their senses what they say they saw, or heard,
or experienced?
Is their testimony consistent with what they have
said before? Is their testimony consistent with what others have said?
Is there any reason for that witness to favor one
side or the other? Any bias or prejudice, that is, on the part of that
witness?
All of these things you may consider, keeping in
mind that you must give to the defendant the benefit of every reasonable
doubt. And, of course, you certainly do not determine the credibility by
counting up the number of witnesses for either side. You may believe all
of what a witness says or a portion of what a witness says. You may believe
one as opposed to several, or several as opposed to one.
Now, let me remind you again about circumstantial
evidence. And as I have said to you before, we have two different categories
or types of evidence. And there is no real magic to it. We just break them
down into direct evidence and indirect evidence.
Direct evidence is the proof of the existence of
something directly, as where someone comes into court and testifies that
they saw something or that they heard something or that she experienced
with one of their senses that something. That's direct evidence of that
something.
Circumstantial or indirect evidence would be the
proof of a chain of circumstances which points to the existence or to the
nonexistence of a particular fact which is at issue.
The State may prove a matter which is at issue through
the use of circumstantial evidence, provided that it meets the legal test
or requirements. You see, to the extent that the State relies upon circumstantial
evidence to prove something that is at issue, the State must prove each
of the circumstances that they rely upon beyond a reasonable doubt. And
those circumstances must point wholly and conclusively to that which the
State seeks to exclude, to the exclusion of every other reasonable explanation
or hypothesis.
If there is another explanation for such circumstances
which the State cannot exclude beyond a reasonable doubt, then you cannot
sentence the defendant on the basis of such evidence, because you will
have then found that there was a reasonable doubt.
Now, again I want to instruct you on a very vital
and basic rule of law in this country and in this court, and that is, that
the fact that a person who is on trial in a criminal case does not testify
in their own behalf is not a factor which may be considered by the jury
in any way, shape, or form during your deliberations. It must not be considered
by you in any manner whatsoever against the defendant. You may not allow
it to mitigate against her in any respect. A defendant has a Constitutional
Right to remain silent. And the assertion of such a Constitutional Right
cannot and must not be considered by you in your deliberations. Indeed,
it would not even be proper for you to mention that during your discussions
and your deliberations. And that is, as I have explained to you, because
the burden of proof is upon the State to prove those parties that the State
must prove beyond a reasonable doubt. And again, because the defendant
never has an obligation to bring matters before you. The burden of proof
is upon the State.
Now, let me summarize for you what I have just told
you.
You will have in the jury room during your deliberations
three forms. The first form is called Statutory Instructions. It sets forth
the instructions on how to fill out the form regarding the statutory aggravating
circumstance finding. Again, it sets forth what the two statutory aggravating
circumstances are that have been asserted by the State.
It then goes on to tell you what the statutory mitigating
circumstances are that you may consider, and the statutory non -- I'm sorry,
nonstatutory aggravating circumstances which you may consider, if you find
that they are supported by the evidence.
Now, again with regard to your verdict, you first
must determine whether or not the State has proved one or both of the statutory
aggravating circumstances beyond a reasonable doubt. If they have not,
then on your first page, that is Part 1, where it says Jury Verdict On
Proof Of Aggravating Circumstances, Part A is what would be filled out,
and that would simply require the signature of you, Mr. Foreman.
On the other hand, if the State has proved one or
both, then you would write out in Part B on those blank lines which one,
or both, the State has proved beyond a reasonable doubt, and all twelve
of you would sign.
You would then turn to Part 2 of the form, which
is the sentence. You may only consider a sentence of death if the State
has proved one or both of the statutory aggravating circumstances beyond
a reasonable doubt. If upon your consideration of which verdict shall be
rendered in this case, the jury decides that the defendant should be sentenced
to life imprisonment, then only you need sign the form, Mr. Foreman, and
that's the first part.
On the other hand, if the jury decides unanimously
that the defendant should be sentenced to death, then all twelve of you
must sign the form.
As to that verdict, as to the sentence of death,
I tell you that that verdict must be unanimous, and that again all twelve
of you must sign it.
Now, both the State and the defendant have a right
to expect that each of you will comply with your oath to carefully and
impartially consider all the evidence in this case, and that you will follow
the law as I have explained it to you. That is what we ask of you, and
that is what we ask you to do.
Now, ladies and gentlemen, at this time I'm going
to ask you to go to the jury room for me for one moment while I go over
this charge very briefly with the lawyers to make sure that I have included
everything that I need to include. If I bring you back out to tell you
again about an area of the law, to a point of law, then please don't attach
any special significance to that. It just simply means that I forgot to
include it initially or that I told it to you incorrectly.
On the other hand, if you receive a knock at the
jury room door and the bailiff hands in to you the statutory instructions
and the forms for the verdict on proof of aggravating circumstances and
the verdict on sentence to be imposed as to each of the two indictments,
along with the evidence that's been presented in this case, that would
be your signal to begin your deliberations.
Once you have arrived at a verdict, and you have
completed these forms, if you will knock on that door and tell the bailiff,
and the bailiff will let me know, and we will probably keep you waiting
for a few minutes in order to allow people to reassemble, and then we will
hear the verdicts.
Now, make no mistake about it. Your verdict will
be the sentence in this case. That's how the law works. So y'all will be
making these decisions.
At this time I will ask you to go to the jury room.
And don't begin your deliberations quite yet.
(Whereupon, at 1:55 p.m., the jury retired to the jury deliberation
room)
THE COURT: Any exceptions or additions, by the State?
MR. GEISE: No, sir.
THE COURT: Any exceptions or additions, by the defense?
MR. BRUCK: None except the exceptions noted in chambers,
was the request to treat the statutory or nonstatutory mitigating factors
similarly without identifying which was statutory or which was not.
I understand the court had overruled that request,
and I would just like the record to reflect that we had asked that the
charge not differentiate between statutory and nonstatutory on the grounds
of Lockett principle and of the Eighth Amendment.
THE COURT: Very well, we will note your exception.
All right. Then the jury can be begin their deliberations.
And with regard to that exception, by the way, you
will note that I did tell the jury that just because it's not set forth
statutorily does not lessen its importance.
MR. BRUCK: Yes, sir.
THE COURT: All right. With that in mind then, we
will allow this jury to begin their deliberations.
Counsel, if you would like for one last moment review
these three forms before they go into the jury room, since we have had
several drafts of it, to make sure that there is a not a word on there
that should be, or shouldn't be, or vice versa.
MR. POPE: Your Honor, we are also going to need
to go through the evidence to make sure we have got everything going back.
THE COURT: Right.
Before we break, a couple of matters. This has been,
I guess, a legal proceeding that started for me in January with counsel.
And I just want to commend all four of the lawyers who have been involved
in this case for your professionalism throughout this entire matter. And
I commend all four of you in that regard.
I also would like to take a moment just to thank
all of the people at South Carolina Enforcement Division, and the sheriff's
office, as well as the city police department for all of their work in
maintaining the court security and the jury during this proceeding, handling
the security matters for the courthouse before we ever arrived, including
all of the unusual concerns that everyone had to take into account. These
folks have worked very hard to assure that we would be able to try this
case fairly and impartially. And they are to be commended for all their
work, and I want to thank them. All right.
We will be at ease with regard to this matter. I
have had a request that I give some period of time. I will in view of the
number of people who will need to get back into the courtroom. I'm anticipating
the jury is going to go out to eat, and it would be awhile. I can't tell
how long. I don't want to wait a long period of time. Once they have arrived
at a verdict, I don't think that that should be done. However, I will wait
fifteen minutes from when we know what the verdict is to allow people time
to come into the courtroom.
The court has one other proceeding to address. I'm
going to take ten minutes at this time. And Mr. Bender, are you out there?
MR. BENDER: I am, Your Honor.
THE COURT: So you had asked to discuss this case
or this matter, and we will do so at this time, and then the court will
come back in approximately ten minutes to address that, that matter.
MR. BENDER: Thank you Your Honor.
THE COURT: All right. As far as the trial of this
case, we will be at ease while the jury is deliberating.
(Whereupon, at 2:00 p.m., proceedings recessed pending the verdict
of the jury)
(Whereupon, at 2:10 p.m., jury instructed to begin deliberations)
(Whereupon, at 2:14 p.m., proceedings reconvened)
THE COURT: Mr. Bruck and Mr. Pope. Mr. Pope here?
MR. POPE: Yes, sir.
THE COURT: Okay. With regard to the TV and the video
and all the tapes, I'm going to allow those into the jury room because
they're all actually evidence. They are not testimony.
MR. BRUCK: Yes.
THE COURT: Okay. Very good.
Mr. Bender, good afternoon, sir.
MR. BENDER: May it please the court, Your Honor.
THE COURT: Ms. Decker.
Yes, sir.
MR. BENDER: At this time what I would like to offer
to the court, as we discussed in chambers, is material in support of the
position that -- in conformity with your earlier rulings in this case,
there would be no need to call Ms. Decker to the stand. It's our belief
that she has in fact presented an affidavit to the Supreme Court that would
purge your contempt finding of May 26th.
THE COURT: Okay. Now, you took that affidavit back
with you as we left chambers.
MR. BENDER: I have another copy.
THE COURT: I'm not sure if I have got my copy.
MR. BENDER: Here is a copy, Your Honor.
THE COURT: Let's go back a little bit in time and
then I'll tell you where I might be confused about what is in the affidavit
that can be clarified --
MR. BENDER: Yes, sir.
THE COURT: -- or whether indeed we are at an impasse
as to that particular issue.
I know that my initial order as to the privacy of
the mental health evaluation, in my view of it, extended to the state hospital,
the solicitor's office, the defense office, and my office. I know directly
from personal knowledge, of course, that nobody saw it at my office except
my law clerk and myself and where it was and that sort of thing.
And my purpose at the time, as you know, was to
ascertain where the leak was, because at the particular time in question
I was very concerned about what might happen in the ensuing days and weeks
that might affect a fair trial.
Now, your affidavit -- or your client's affidavit.
I'll address this to you, counselor, the affidavit says in the pertinent
part "no source for my May 25th, 1995 story was a person ordered by the
May 16th, 1995 order to maintain the confidentiality of the report, in
that none of my sources was quote, the solicitor, defense counsel, or any
witness to whom the report of the information was divulged."
So, as I understand, the affidavit is saying that
it wasn't a solicitor, it wasn't a defense lawyer, and it wasn't a witness.
MR. BENDER: That's correct, Your Honor.
THE COURT: In the trial of this case?
MR. BENDER: That is correct.
THE COURT: And that's where we have a problem. Because,
my initial order --
MR. BENDER: When you say initial order, are you
referring to May 16th.
THE COURT: Let me get it.
In paragraph four, "the report and its contents
are not to be made public pending the further order of this court. No copies
of the report are to be made without the express written authorization
of the court."
Now, a copy of this order was served upon the state
hospital, state hospital having been ordered to do the report by the court
under the code sections that are applicable, and I don't happen to have
them in front of me at this time.
So if Twila Decker is saying in this affidavit that
nobody who is employed by or has any connection to the South Carolina state
hospital provided any information -- you know, gave her the information,
then that's fine.
I take it the rest of it is saying that no solicitor,
no defense counsel, and that -- included in that are their offices, if
that's what she means people in their offices.
So if that's what you mean by this, then that's
fine. I just can't -- I can't let y'all make the decision as to -- legally
how this is interpreted. I know how it's interpreted from my viewpoint.
But I don't mean to limit you factually, if indeed factually that's what
the situation is, then that's all I need is an affidavit to that effect,
and that ends this matter.
I'm not asking Twila Decker who her source is. I
respect very much the confidentiality of the press sources to the press.
My problem is if it is somebody who has got a connection
with, employed by the state hospital, or is in the defense lawyers' office,
or the prosecution's office, or for that matter were it my office, one
of those four places, which are the only four places that I know of that
the report was, I need to know. And so that's where we are at.
So if you can clarify that, either with sworn testimony
or by affidavit, then that solves the problem and Ms. Decker can go home,
or stay here as she chooses, for the rest of the trial.
MR. BENDER: We may be able to address that issue.
But with regard to the interpretation, I would direct the court's attention
to the Supreme Court's substituted opinion of July the 11th. I have an
extra copy.
THE COURT: Okay, I think that's in front of me.
MR. BENDER: In the statement of facts in the first
paragraph, the Supreme Court seems to be interpreting your report -- your
order of May 16th rather, to require disclosure only to the defense counsel
and the solicitor, both of whom were ordered to maintain the confidentiality
of the report.
And I would take the position that based on the
Supreme Court's view of it, that the order of May 16th in confined to the
specific language as to the persons who are bound by it in the ordering
part.
THE COURT: Well, but the first part of that sentence
correctly reflects what the intent of that order was, which was "due to
the extensive pretrial publicity, the Circuit Court issued an order on
May 16th requiring the report to be disclosed only to defense counsel and
the solicitor." Obviously, if I were ordering that as to them, I wouldn't
be -- I mean --
MR. BENDER: Well, I guess it's that last clause,
both of whom were ordered to maintain the confidentiality of the report
there.
THE COURT: That's right. Yeah, they were both ordered
specifically to maintain the confidentiality.
But the order itself specifically says that it's
confidential and shall not be disclosed, and a copy was served on the state
hospital, which as you will notice in the footnote that it specifically
refers to the end of that phrase you are talking about, how the Supreme
Court also notes the report was also required to be kept confidential pursuant
to South Carolina Code Annotated Section 44-22-100, which carries criminal
penalties of up to one year in jail for a violation.
MR. BENDER: Right, except that I don't believe that
Dr. Morgan's testimony substantiated that these were patient records under
the act, because he said specifically that Susan Smith was not a patient
of his and these were not patient records. So I --there is a factual dispute
as to the applicability of that statute.
But I can discuss with Ms. Decker your question
about --
THE COURT: Yeah, let's deal with that, because we
may not have a problem.
MR. BENDER: Give us a minute, Your Honor.
THE COURT: Yes, sir.
(off the record)
(back on the record)
MR. BENDER: With that clarification, Your Honor,
we can provide you with an affidavit.
Then in addition to the affidavit submitted to the
Supreme Court, which we have submitted to you today, described as you have
described it, that the source was not an employee of the department of
mental health and not of your office, if you want us to say it wasn't from
your office.
THE COURT: Okay. And in addition to that that it's
not in the solicitor's office or the public --or the defense lawyer's office.
MR. BENDER: That's correct.
THE COURT: Right.
MR. BENDER: That's what I say. The affidavit we
previously submitted as you have described it. I mean, that's what way
you described it as being their -- not just the individuals but their offices.
THE COURT: All right. So you are saying then --Ms.
Decker, why don't you just stand there and let me swear you and you can
just tell me. I'll ask you specific questions, and you just give me your
specific answers, and hopefully we will have resolved this issue.
TWILA DECKER, having been first duly sworn, testified
as follows:
THE COURT: You can stand right there if you would
like.
TWILA DECKER: Okay.
THE COURT: Ms. Decker, am I correct then that your
source of the information that you reported in your May article about the
mental health evaluation of Susan Smith was not, A, an employee of the
South Carolina state hospital; B, neither a solicitor, nor an employee
of the solicitor; C, neither one of the defense lawyers or an employee
of their office; and D, no one connected with my office?
TWILA DECKER: Yes, you are correct in saying that.
THE COURT: Very well then.
Counsel, I don't think that I have a right under
our Constitution to ask Ms. Decker to tell me who her source is, if it
is not somebody that is protected under that order, or who must -- and
has the obligation to protect the information under the order.
MR. BENDER: I agree with that, Your Honor, and may
we --
THE COURT: I guess the proverbial question is why
did we need to go through all that? It's ever present on my mind, but perhaps
--
MR. BENDER: I think timing had a lot to do with
it. Had we talked on May the 26th, perhaps before we got into this issue,
we might have been able to steer a course through it.
THE COURT: Very well then.
MR. BENDER: I appreciate your entertaining us today.
THE COURT: Very good then.
MR. BENDER: I would take it that your --
THE COURT: The reporter, Twila Decker, having related
to this court under oath that the source of her information, whoever it
may have been, is not connected with one of those four entities - those
four entities having been the only entities that the court knew of that
had access to the information, and those four entities being covered by
the court's order, and the source not being one of those four, then that
concludes the inquiry of that matter by this court with Ms. Decker. And
the prior order of contempt is hereby rescinded.
MR. BENDER: Very good, Your Honor. Thank you.
THE COURT: Mr. Bender, if you would like to draw
an order for me to that effect, I'll be happy to sign it.
MR. BENDER: I'll be happy to, Your Honor. Thank
you.
THE COURT: All right. That concludes this matter.
Court would be in recess while the jury is out.
(Whereupon, at 2:25 proceedings recessed pending the verdict
of the jury)
(Whereupon, at 4:37 p.m., proceedings reconvened)
THE COURT: Ladies and gentlemen, we have received
notification that the jury has arrived at a verdict in both of these cases.
You will recall at the earlier stage, I asked everyone
to please not only remain in your seats, but to remain quiet at the sounding
of the verdict. It's difficult on a jury to have to be called upon to make
these decisions. And so if there is anyone who feels that they cannot control
their emotions, I would ask that you leave at this time, because I cannot
have any outbursts.
Very well then. If you will bring me the jury.
(Whereupon, at 4:38 p.m., the jury returned to open court to
report its verdict)
THE COURT: Mr. Foreman, has the jury arrived at
verdicts in each of these two cases?
JURY FOREMAN: We have.
THE COURT: Have you filled out those sentencing
forms?
JURY FOREMAN: We have.
THE COURT: If you will, you can hand them to Ms.
Miller for me.
All right, you may publish the verdict.
THE CLERK: Docket 94-907, State versus Susan Smith,
indictment for murder. "We, the jury, in the above-entitled case
unanimously find beyond a reasonable doubt the existence of the following
statutory aggravating circumstances.
1. Two or more persons were murdered by the defendant,
or by one act, or pursuant to one scheme or cause of conduct.
2. The murder of a child eleven years of age or
under."
And it's signed by the foreman and all the jurors.
THE COURT: Go ahead and publish the verdict. Just
the second sheet.
THE CLERK: "We, the jury, in the above-entitled
case decide that the defendant, Susan Smith, be imprisoned in the State
penitentiary for the balance of her natural life." Albert Epps, Foreman.
Docket No. 94-906, the State versus Susan Smith,
"we, the jury, in the above-entitled case unanimously find beyond a reasonable
doubt the existence of the following statutory aggravating circumstances:
1. Two or more persons were murdered by the defendant
upon an act or pursuant to one scheme or course of conduct.
The murder of a child eleven years of age or under."
Signed by the foreman and all the other jurors.
"We, the jury, in the above-entitled case decided
that the defendant, Susan Smith, be imprisoned in the state penitentiary
for the balance of her natural life."
Signed by the foreman.
THE COURT: You may have a seat.
Mr. Foreman, ladies and gentlemen of the jury, was
this your verdict?
(JURY PANEL): Yes, sir.
THE COURT: All right. If it was your verdict, will
you please your right hand?
(Whereupon, the jury panel raised their hands)
THE COURT: Very well then. Thank you.
Before you leave, there is a couple of things that
I want to say to you on behalf of myself and on behalf of all of the people
involved in this process.
In the 1970s the United States Supreme Court made
a decision that the death penalty could not be imposed unless the jury
determined by considering all of the factors in each individual case whether
or not it was the appropriate penalty. And only then was it a just and
not a cruel and unusual punishment. That is, only then is it not arbitrary.
Under our system here in South Carolina, in essence,
the jury becomes not just the fact finders but the soul searchers, if you
will, of the community, who really have to make the tough decisions on
a moral and all other levels as to what a judgment should be.
Placing that kind of a burden on the jury is perhaps
placing about the largest burden upon another human being that could be
asked. And I want you all to leave here knowing that you have fulfilled
your duties to the upmost. I have noticed a United States flag flying out
that window throughout this trial. And every now and then I have looked
out at it, and it's given me faith in our system and faith in your ability
to do what you were called upon to do. And no one could have performed
their duties any better than you did. You all were asked intensive questions
about matters that you probably never had to think about before in your
lives. I know that your hearts were torn throughout this two weeks emotional
trial, as I think everyone's hearts have been torn. And I want you to know
on behalf of myself, and on behalf of the citizens of Union County, and
of this state, and of this nation that your work is not going to be forgotten
or taken lightly.
We oftentimes say that being on a jury, service
on a jury, is probably the most important thing that you could ever be
asked to do, save and except perhaps service to your country in a time
of war. But in thinking about that on the way here today, I began to think
that in some ways in this kind of a case, particularly, is even a tougher
assignment in many instances, because no one is shooting at you when you
have to make the decision of whether somebody else should have the death
penalty or life imprisonment. And that's probably the toughest moral decision
that you could ever be asked to make.
I know that your community is proud of you. And
I know the people in this courtroom are proud to have been here with you
during your service.
Now, at this point I am going to take a fifteen
minute break and ask you all to come into the back for just a moment. I
have a couple of other things to make mention to you, and then I will have
sentence.
So, if you will, I'll ask you all to come into the
back for just a moment.
Everyone else please keep your seats while the jury
is taken out.
(Whereupon, at 4:45 p.m., the jury was dismissed)
THE COURT: All right. I'll have sentencing at fifteen
minutes to five. Court will be in recess until that time.
(proceedings recessed)
(proceedings reconvened)
THE COURT: On Indictment 94-GS-44-906 and Indictment
94-GS-44-907, both of those being indictments for murder, the jury has
returned verdicts of guilty and has returned a verdict which under the
statute is a sentence of life imprisonment.
Is there any matter upon which the -- that is --and
let the record also reflect that the jury has unanimously found beyond
a reasonable doubt the existence of both of the statutory aggravating circumstances;
that was, that two or more persons were murdered by the defendant by one
act or pursuant to one scheme or course of conduct.
And No. 2, that the murder of a child eleven years
of age, or under. And that's as to each indictment.
Mr. Solicitor, is there any other matter that the
State needs to bring to my attention or that we need to do on behalf of
the State before I pass sentenceing?
MR. POPE: No, sir, Your Honor.
THE COURT: Thank you. Is there anything by the defense?
MR. BRUCK: No, sir.
THE COURT: All right. Very well then. We will have
sentencing at this time.
In the normal course of either a guilty plea or
a verdict of guilt, it is at that stage where the judge would hear from
anyone connected with the matter before imposing sentence.
In a death penalty setting, of course, that is the
whole purpose of the proceeding, that the Court and the jury hears from
both sides.
So that having been accomplished as a part of the
proceeding, I assume that both Mr. Bruck and Ms. Clarke, that you all have
said what you needed to say, but I don't want to assume that. Is there
anything further that you wanted to say on behalf of the defendant?
MR. BRUCK: No, Your Honor.
MS. CLARKE: No, Your Honor.
THE COURT: Okay. Ms. Smith, the jury having found
you guilty, and the verdicts having been published, is there any matter
that you would like to address? Is there any anything that you would like
to say before I impose sentence?
THE DEFENDANT: No, Your Honor.
THE COURT: Very well then. On Indictment 94-GS-44-906,
and on Indictment 94-GS-44-907, it is the sentence of this court that you,
Susan Smith, shall remain in the custody of the Department of Corrections
for the State of South Carolina for the balance of your natural lifetime.
And pursuant to South Carolina law, that there be
no parole eligibility until after the service of thirty years, in accordance
with South Carolina law, in view of the finding unanimously of the statutory
aggravating circumstances. And that is the sentence of this court.
THE DEFENDANT: Thank you.
THE COURT: Yes, ma'am.
That having been concluded, I would like to say
to Mr. Pope, Mr. Geise that -- you may regain your seats now.
You have tried this case in a very thorough professional
manner. I can understand the reasons why you brought this case to this
courtroom and tried it to this jury. I think that a part of each person
in the courtroom was swayed by the nature of this crime and the impact
upon the victims.
In a proceeding of this type, it is difficult to
understand all that goes into it, unless you are able to go through all
the pretrial proceedings and see all that goes into the preparation. But
I commend you all for a job well done and by carrying this forward as you
deemed in your judgment was required, and I certainly understand that.
Mr. Bruck and Ms. Clarke, I too want to tell you
again that you have conducted yourselves in a most professional manner
as well, and have been, as Mr. Geise and Mr. Pope, prepared at all times
in this case. Both sides have provided me with excellent argument and excellent
law on all the issues that have come up. And there have been some that
were somewhat unique to this case. And I'm very proud of all four of you
for the jobs that you have done, the judgment that you have shown, the
argument that you have made, and the positions that have advocated very
ably.
And with that, this court stands adjourned.
(Whereupon, at 5:12 p.m., proceedings concluded)
Michael R. Watts, Circuit Court Reporter
source: 1995 WL 789245