The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Johnnie Hoskins v. State of Florida
SC05-28
,
ARRESTED, NOT CONVICTED.
THERE WAS NO MENTION OF
GOING TO PRISON.
THERE WAS NO INQUIRY BY THE
STATE AS TO WHAT THOSE
ARRESTS WERE FOR AND I WOULD
LIKE TO POINT OUT THAT AND
EMPHASIZE THEY WERE ARRESTS,
NOT CONVICTIONS.
THE PRESERVATION ISSUE ON
THAT CLAIM?
I DON'T THINK IT WAS
BRIEFED.
WAS THERE EVER AN OBJECTION?
WAS THE PANEL NOT ACCEPTED
BY COUNSEL?
I, I DON'T -- I AM SORRY.
I SHOULD KNOW THAT, AIM SO
REQUIRE.
I DON'T THINK THAT -- I
CAN'T REMEMBER IF HE UTTERED
THE MAGIC WORD TO ACCEPT THE
PANEL.
I THINK OR WITH THE
EXCEPTION OF THE PRIOR
JUDGES.
HE MADE IT CLEAR AT THE TIME
THAT THERE WERE OTHER JURORS
WHO, WHO WERE ACCEPTABLE TO
THE STATE AN SAID THAT THE,
THEY WERE IN SIMILAR
SITUATION AS MISS HARP YET
THE STATE DID NOT CHALLENGE
THEM AND CONTENDED THE ONLY
REASON WAS BECAUSE OF HER
RACE.
THE RECORD APPARENTLY
SHOWS THAT THE PANEL WAS
ACCEPTED WITHOUT RESERVING
THE OBJECTION.
WELL, I WILL CONCEDE THAT
UNDER THE CASE LAW.
THAT DOES HURT MY ISSUE.
I THINK IT IS VERY CLEAR
THAT, AT THE TIME THE RACE-
NEUTRAL REASON WAS GIVEN.
HE DID OBJECT TO THAT AS
BEING PRETEXT, NOT GENUINE
AND POINTED OUT THE OTHER
JURORS.
IT DOESN'T RAISE THE
PRESERVATION ISSUE BUT IT
CERTAINLY APPEARS IN THE
RECORD THAT THE OBJECTION
WAS NOT RESERVED.
IT IS THE STATE MORAL ARGUE
AM.
CERTAINLY WISH HE HAD NOT
SAID THAT AND HAD PRESERVED
THE ISSUE MORE CONCISELY,
BUT I CONTEND THAT UNDER THE
RECORD THIS COURT HAS, YOU
CAN TELL HE, HE DID OBJECT.
WITH YOU SAYING ON, THIS
LET'S MAKE SURE.
YOU ARE SAYING THAT THE
STATE INSTRUCT THE LONE
AFRICAN-AMERICAN JUROR.
THERE WERE NO OWN
AFRICAN-AMERICAN ON THE
PANEL?
THAT, THE DEFENSE COUNSEL
SAID, I WANT TO POINT OUT,
SHE IS THE LONE
AFRICAN-AMERICAN JUROR AND
THE TRIAL JUDGE SAID, SHE IS
CERTAINLY AFRICAN-AMERICAN.
I AM MT. SURE IF SHE IS THE
ONLY ONE.
THAT IS WHAT THE RECORD
REFLECTS.
WHAT I GUESS, WHAT I -- I
ASK OS IN THE PRESERVATION
ISSUE.
I AM NOT SURE WHAT USUALLY
THE PRESERVATION IS SO THE
JUDGE COULD DECIDE, WELL,
WITH HE SHOULD HAVE INSTRUCT
THAT PERSON OR DIDN'T.
WHAT ELSE -- I MEAN THE
JUDGE COULDN'T HAVE CALLED
THE JUROR BACK IF THEY HAD
REDECIDED THAT THERE WAS --
THAT IS A GOOD POINT.
THANKS FOR THINKING FOR ME.
NA IS AN EXCELLENT POINT.
THAT JUROR WAS GONE.
AT THE TIME THE STATE, THE
PROSECUTOR STATED HIS
ALLEGED REASON THE DEFENSE
COUNSEL OBJECTED AND POINTED
OUT SOME JURORS AND THEY
ARGUED.
THEY POINTED OUT, THEY SAID,
WELL, THAT IS DIFFERENT.
HE JUST HAD THIS, THIS,
THIS, BUFF I GO THROUGH IN
THE BRIEF.
WHEN THAT REASON WAS
GIVEN, AND THE COURT, AND
THE COUNSEL SAID, BECAUSE HE
HAD SEVERAL FAMILY MEMBERS
WHO HAD CONVICTION AN ALL OF
THAT, DID THE DEFENSE
COUNSEL SAY, NO THAT IS NOT
TRUE.
THERE IS ONLY ONE GODSON WHO
SERVED TIME IN PRISON.
THE OTHERS WERE ARRESTED,
BUT NOT CONVICTED.
WHAT THEY DID WAS, THEY,
THE JUDGE ORDERED THE COURT
TO READ BACK THE PERTINENT
TESTIMONY OF MISS HARP
DURING VOIR DIRE WHEN SHE
CLEARLY SAYS ARREST, NO
FURTHER DISCUSSION WAS
POINTED OUT AS TO
DISTINGUISHING ARRESTS FROM
CONVICTION.
HE DID POINT OUT THAT IT WAS
IN ANOTHER STATE.
SHE SAID SHE REALLY DID NOT
KNOW MUCH ABOUT IT.
WHAT SHE KNEW ABOUT HER
GODSON'S CASE WAS FROM
HEARSAY.
SHE DIDN'T FOLLOW THAT
CLOSELY.
LET'S ASSUME, THERE WERE
ARREST AND NOT CONVICTIONS.
THE QUESTION IS NOT WHETHER
IT IS EVEN REASONABLE.
THE QUESTION IS WHETHER THE
PREEM TORRES GENUINE SO WHY
WOULDN'T THAT FACT, THE
STATE MAY HAVE BEEN MISTAKEN
THEY WERE ARREST, BUT NOT
CONVICTION, DOES THAT EFFECT
THE GENUINENESS OF THE
CHALLENGE?
YES, IT DOES.
I THINK THAT WHERE HE STATES
THE REASON AND IT IS NOT
SUPPORTED BY THE RECORD,
THAT IS ONE INDICATION THAT
IT IS NOT GENUINE 6:00.
HE FURTHER ADD NOT OM THAT
THERE WERE CONVICTIONS
INSTEAD OF ARRESTS.
HE SAID BEEN TO PRISON.
HE ADDED THAT FACT.
I MEAN, THAT WAS NOT ON THE
PART THEY READ BACK OR
ANYWHERE IN MISS HARP'S VOIR
DIRE.
EOTHER JURORS WHEN YOU SAY,
IF YOU ACKNOWLEDGED THAT A
PERSON HAS A CLOSE FAMILY
MEMBER OR FRIEND THAT WOULD
BE IN PRISON ON A VIOLENT
FELONY WOULD BE AN
APPROPRIATE REASON TO STRIKE
A JUROR.
YES.
OKAY.
THE OTHER JURORS THAT YOU
SAY, WELL, THIS IS REALLY
BECAUSE THE OTHER JURORS SIT
THAT SIMILAR, MY REVIEW OF
IT, YOU GOT SOME DUIs, YOU
GOT OTHER TYPES OF CRIMES
THAT HAVING A GODSON IN
PRISON FOR PRIOR VIOLENT
FELONY, THAT THERE IS NOBODY
CLOSE TO THAT SITUATION, CUE
TELL ME WHERE IT IS THAT THE
OTHER JURORS WERE, THAT THEY
DID NOT EXCUSE WHO WERE
WHITE, HAD SIMILAR TYPES OF
HISTORIES OF RELATIONSHIPS?
WELL, OKAY.
I WILL.
I WILL START THE WAY I HAVE
THEM LAID OUT, NOT
NECESSARILY GOING IN THE
ORDER OF THE MOST SEVERE.
ONE BROTHER WAS ARRESTED AN
BREAD PLEADED GUILTY TO
BRIBERY AS A POLICE OFFICER.
LOST THE JOB.
THE PROSECUTOR NEVER ASKED
IF SERVED TIME.
HE SERVED ON HOS SKIN'S
JURY.
HE HAD A FRIEND WHO HAD BEEN
CONVICTED OF A FELONY, SHE
SAID, THE STATE NEVER
FOLLOWED UP WITH A QUESTION
OF WHITE WAS VIOLENT FELONY,
WHAT THE DISPOSITION OF IT
WAS.
YOU ARE SAYING, IT GOES
TO THE FACT THAT NO FURTHER
QUESTIONS WERE ASKED OF
WHITE JURORS, THAT IS WHAT
YOU ARE -- THAT IS PART OF
THE ARGUMENT?
YES, MA'AM.
THAT IS DEFINITELY LAY
FACTOR.
THAT IS ONE INDICATION OF
THE REASON BEING PRETEXTUAL.
THE DEFENSE COUNSEL
RAISED AT THE TRIAL, THE
JURY SELECTION RATHER THAN
WAITING THROUGHOUT THE WHOLE
TRIAL AND THEN COMING UP
HERE AND ARGUING.
THE DEFENSE COUNSEL DID.
THE DEFENSE COUNSEL AS
BESTS' COULD, THE ALLEGED
RACE NEUTRAL REASON WAS
GIVEN REELED OFF SEVERAL
JURORS WHICH HE CONTENDED
WERE IN SIMILAR SITUATIONS,
THAT DID NOT, HE DID NOT
SPECIFICALLY ALLEGE THAT THE
STATE FAILED TO INQUIRE
FURTHER AND IN FACT SOME OF
THE FACTS, SOME OF THE
FURTHER DETAILS ABOUT SOME
OF THE JURORS FRIENDS AND
RELATIVE, THEIR BRUSHES WITH
THE LAW WAS ELABORATED ON BY
DEFENSE COUNSEL, AND
FOLLOW-UP TO VOIR DIRE WHERE
THE PROSECUTOR HAD LEFT IT,
WELL, THE TRIAL JUDGE
ACCEPTED THE CHALLENGE AND
THE STATEMENT, I THINK, THAT
MADE A STATEMENT THAT IT WAS
REAL, CORRECT?
YES, SIR.
NOW, WHAT IS OUR VIEW
HERE?
WHAT DID HE SAY IN MEL BURN
THAT THE REVIEW IN COURT WAS
TO DO IN RESPECT TO
REVIEWING WHETHER THE TRIAL
COURT MADE AN ERROR IN
ACCEPTING THE CHALLENGE
WHERE THE TRIAL BOARD MAKES
THE DERL NATION THAT IT WAS
-- DETERMINATION THAT IT WAS
GENUINE REASON?
WELL, WHERE YOU HAVE
DEFENSE COUNSEL CONTESTING
THE GENUINENESS OF IT, THAT,
THAT IS SOMETHING THAT THE
TRIAL COURT MUST CONSIDER.
IT WAS A THREE-PRONG, A
THREE-PRONG TEST THAT THIS
COURT SET FORTH, BUT WE ALSO
MADE STATEMENT THERE AS TO
WHAT THE APPELLATE COURT WAS
TO DO.
YOU SAID THAT, I MEAN,
WANT ME GO THROUGH THE THREE
STEPSS?
I KNOW THE THREE STEPS.
I AM TALKING ABOUT THE
STANDARD OF REVIEWING.
WELL, YOU SAID THAT IF
THE CIRCUMSTANCES
SURROUNDING, GIVEN THE
CIRCUMSTANCES SURROUNDING
THE STRIKE, THE EXPLANATION
IS A NOT A PRETEXT, THE
STRIKE WILL BE SUSTAINED,
AND I BELIEVE THAT THIS
COURT, AND I DON'T KNOW FIT
WAS IN OTHER OPINIONS
INDICATED THAT WHERE THE
RECORD REFLECTS IT WAS NOT,
THAT IT WAS IN FACT
PRETEXTUAL, THEN, AND THAT
IS POINTED OUT TO SOME
EXTENT, AT LEAST, BY THE
DEFENSE COUNSEL, AND HE DID
IN THE CASE, THEN THIS COURT
CAN REVERSE.
AND SHOULD REVERSE.
WASN'T HARP SUPPOSED TO
BE ALTERNATE JUROR?
HAD ALREADY A PANEL, NOW,
THEY WERE STRIKING
ALTERNATES?
I DON'T BELIEVE SO.
I THINK THAT THE JUROR THAT
WAS, WAS SUPPOSED TO BE
ALTERNATE JUROR WAS, UM,
MISS SARO, HER BROTHER HAD
BEEN ARRESTED "MORE TIMES
THAN I CAN COUNT, I CAN'T
EVEN REMEMBER ALL OF THE
CHARGES SHE SAID" DESPITE
THE PROVOCATIVE STATEMENT.
THE PROSECUTOR NEVER ASKED
MISS SAR
THE NATURE OF THE CRIME
NOR THE DISPOSITION.
BUT THE STATE STATE
STRUCK HER.
MISS HARP,, NO I BELIEVE WAS
EARLIER, THERE WAS NO, THEY
DID NORTH, THEY CERTAINLY,
THEY WERE NOT GETTING DOWN
THE NITTY-GRITTY, OKAY, WE
GOT 12, OKAY, THAT IS NOT MY
RECOLLECTION OF THE RECORD.
BUT PERHAPS I AM WRONG.
THE STATE THEN
SUBSEQUENTLY STRUCK THE
OTHER JUROR, THE ONE THAT
SAID MY --, NO THE DEFENSE
DID.
BUT YOU STATED STATE.
I AM SORRY, I MEANT
DEFENSE.
I WELL, I DON'T KNOW.
BUT BOTH THE STATE AND THE
DEFENSE ARE ALWAYS
INTERESTED IN WHAT THE
CRIMINAL HISTORY OF PEOPLE
THAT ARE CLOSE TO THE JUROR
IS AND, YOU KNOW, INTERNALS
OF TRYING TO UNDERSTAND
WHERE THIS WAS REALLY A
RACE, LET ME UNDERSTAND,
SERIOUS, THIS IS THE ONLY
AFRICAN-AMERICAN ON THE JURY
PANEL, TO ME, THAT IS WHAT
THE CASE SUPPOSED TO BE
ABOUT, YESTERDAY, WE HAD A
CASE WHERE, YOU KNOW, WHERE
A WHITE JUROR CHALLENGED
BASED ON THEIR RACE, BUT IF
SOMEBODY DECIDES, I AM NOT,
YOU KNOW, IN MY -- MY
BROTHER HAS BEEN ARRESTED
FOR MORE THINGS THAN I CAN
COUNT, THERE IS A
SENSIBILITY ISSUE, AT WHAT
POINT, WELL, I WANT YOU TO
NOW LIST EVERYTHING YOUR
BROTHER HAS BEEN ARRESTED
FOR AND WHAT HE HAS BEEN
CONVICTED FOR.
I MEAN, AT SOME POINT, YOU
DON'T WANT TO GO IN ALL THAT
MUCH DETAIL ABOUT WHAT, YOU
KNOW, WHAT THAT JUROR'S
HISTORY IS, AND WASN'T THAT
LEGITIMATE AS FAR AS, YOU
KNOW, HOW FAR ARE YOU GOING
TO GO ONCE YOU FIND THIS
INFORMATION OUT.
BECAUSE AT THE VERY LEAST,
THE PROSECUTOR, AS HE DID
WITH MISS HARP, COULD HAVE
AT LEAST ASKED FOR ANY OF
THOSE VIOLENT FELONIES?
WERE THEY MISDEMEANOR
FELONIES IF THEY WERE
FELONY, WERE THEY VIOLENT?
HE DIDN'T DO THAT.
HE DIDN'T DO THAT WITH SORO,
HE DIDN'T DO THAT WITH --
WAIT A MINUTE.
HE DID IT WITH HARP.
HE DIDN'T DO IT WITH THE
OTHERS.
RIGHT.
HE DID IT WITH HARP AND NOT
THE OTHERS.
MR. SALLY SAID HE WAS --
HE WAS ARRESTED FOR
UNDERAGED DRINKING, THEN, HE
HE HAD NEPHEW CURRENTLY
SERVING TIME IN PRISON FOR
BURGLARY AND DRUG OFFENSES.
I MEAN, BURGLARY, THAT, THAT
CAN, DEPENDING ON THE,S,
THAT CAN BE A VIOLENT CRIME.
IT IS A VERY SERIOUS FELONY,
YET THE STATE ACCEPTED
MR. SALLY.
HE SERVED ON MR. HOSKIN'S
JURY.
ALL OF THIS IS CIRCUMSTANCE
EVIDENCE THAT THE RACE-NEUTRAL,
THE ALLEGED RACE-NEUTRAL
REASON GIVEN.
NOW, WE GO BACK TO WHAT
JUSTICE WELLS IS SAYING,
THAT IS THERE BECOME AS TIME
WHERE THERE IS A DUMB CALL
ON WHETHER THERE IS GOOD
FAITH BEING EXERCISED BY THE
PROSECUTOR OR DEFENSE OR NOT.
LOOKING AT THE TOTALITY OF
WHO IS THERE, AND IT DOES
APPEAR THAT THIS JUDGE, YOU
KNOW, WANTED -- HAD THEM
READ BACK AND LOOK INTO WHAT
EXACTLY WAS SAID.
THIS WASN'T SOME KIND OF A
JUST CURSORY I AM DENYING IT
OR I AM ACCEPTING IT, SO HOW
DOES THIS COURT SECOND GUESS
THE SORT OF SHADES OF WELL I
SHOULD HAVE ASKED ONE MORE
QUESTION OF THAT JUROR, THAT
WOULDN'T BE CONTECTUAL AN IN
TERMS OF REALLY GIVING IN
THIS AREA THE TRIAL JUDGE
BROAD DIGRESSION TO MAKE
THESE CALLS AT THE MOMENT
THERE HAPPENING.
WELL, IN A CLOSE CASE,
THAT MAY BE A PROBLEM.
IN THE IS, I BELIEVE THE
RECORD IS CIRCUMSTANTIALIAL
EVIDENCE CONTAINED IN THE
RECORD IS OVERWELL AMING, I
HAVE NOT EVEN ADDRESSED THE
JUROR'S SON WAS ARRESTED,
SERVED SOME, SOME PERIOD OF
TIME, INCARCERATE, SHE SAID,
FOR FELONY, THE PROSECUTOR
NEVER ASKED THINK NATURE OF
THE FELL NIF HER.
THE FELONY OF HER.
OF HER SON, MR. INGHAM WAS A
PASTOR, A MEMBER OF THE
CONGREGATION WAS CHARGED,
APPARENTLY, DID PRISON TIME
FOR SEXUALLY ABUSING
CHILDREN.
AND THE MR. INGRAHAM VISITED
THIS CHURCH MEMBER, A MEMBER
FIVE TO SIX TIMES IN PRSON,
SERVED AS SPIRITUAL ADVISER.
THE DEFENSE COUNSEL
DIDN'T MAKE ALL OF THOSE
ARMINGS? NOT ALL OF THESE.
HE REELED OFF AS BEST AS HE
COULD.
HE SAID MR. INGHAM IS
GONE, HE WAS ACCEPTABLE TO
THE STATE.
YES.
HE HAD CONTACT FROM
SOMEBODY WITH THE CHURCH.
HE IS NOT LISTING ALL OF
THESE THINGS THAT YOU ARE
SAYING.
NOT IN GREAT DETAIL
BECAUSE IT IS ALL CONTAINED
IN THE RECORD ON APPEAL, HE
KNOWS THE QUESTIONS ARE
THERE ON THE RECORD THAT --
WELL, THAT IS MY POINT.
SHOULDN'T -- ISN'T THERE
SOME DEFENSE COUNSEL WHEN HE
BELIEVES THAT THE STATE'S
REASON IS PROTECTUAL TO
OFFER, SPECIFIC POINTS WHY
THAT IS PROTECTUAL AND THAT
NOT TO RELY NONE ON APPEAL
THAT SOMEBODY IS GOING TO
TESTIMONY FURTHER THAN HE
HAS?
HE DID.
I WANT TO EMPHASIZE THAT.
A LOT.
HE DID.
HE DID OBJECT.
HE.
YOU ARE GIVING A LOT MORE
DETAIL.
I AM.
BECAUSE I HAVE THE
PRIVILEGE, I HAVE THE --
THAT IS MY PROBLEM.
THAT YOU ARE EMBELLISHING A
LOT MORE THAN WHAT DEFENSE
COUNSEL DIN HIS OBJECTION.
WELL -- THE JUDGE HAS TO
RELY ON THE STATE'S REASONS
AND THE DEFENSE COUNSEL'S
COUNTERS AND OBJECTIONS TO
THAT AND HIS REASONS WHY THE
STATE'S ARGUMENT IS
PROTECTUAL THAT IS HOW THE
COURT USES HIS DIGRESSION,
IF HE DOESN'T HAVE THE
INFORMATION FROM THE DEFENSE
COUNSEL AT THE TIME, THEN,
WE CAN NOT FAULT THE TRIAL
COURT AND SAY HE ABUSED THE
DIGRESSION WHEN THE DEFENSE
COUNSEL DIDN'T GIVE HIM ALL
INFORMATION.
HE DIDN'T MAKE A PERFECT
RECORD, BUT HE MADE A REALLY
GOOD RECORD.
IT IS ONE OF THE BEST I HAVE
SEEN.
HE DID REEL OFF -- YOU ARE
IN THE HEAT OF JURY
SELECTION, YOU GOT NOTES
SPREAD ALL OVER THE TABLE.
YOU ARE TRYING -- THE STATE
COMES UP WITH THIS ALLEGED
RACE-NEUTRAL REASON, WHICH
WANT TO EMPHASIZE, WAS NOT
EVEN SUPPORTED BY THE
READBACK OF HER VOIR DIRE
TESTIMONY.
IT DID NOT SAY CONVICTIONS.
IT DID NOT SAY LONG PRISON
SENTENCE.
IT WAS THE CIRCUMSTANTIAL
EVIDENCE IS OVERWHELMING, HE
DID OBJECT.
TO THE BEST OF HIS ABILITY
IN THE HEAT OF JURY
SELECTION, HE REELED OFF A
BUNCH.
SOME OF THESE JURORS,
PERHAPS, I CAN'T REMEMBER,
THEY MAY HAVE COME AFTER THE
MISS HARP'S EXCUSABLEAL.
GIVE YOU THE OPPORTUNITY
BECAUSE YOU SAID YOU HAD TWO
ARGUMENTS?
OOCHLS YOU ARE TWHOOL THE
REBUTTAL.
I AM.
20 IS A SHORT PERIOD OF
TIME.
WELL, I THINK, IT IS CLEARLY
PRESERVED ON THE
CIRCUMSTANTIAL EVIDENCE THAT
IT WAS NOT, THAT IT WAS
PRETEXTUAL, NOT GENUINE IS
OVERWHELMING WHEN YOU LOOK
AT THE RECORD PLEASE.
THE SECOND POINT WAS THAT
GORY PHOTOS SPECIFICALLY
DURING JURY SELECTION ANDER
THERE WAS AFTER MR. HOS
SKINS STOOD GUILTY BEFORE
THE JURY OF MURDER, SEXUAL
BATTERY, KIDNAPPING, RAPE.
ANY CASE IN THE COUNTRY
THAT HAS HELD THAT TRIAL
COURT PROHIBITING DEFENSE
COUNSEL FROM SHOWING THE
VENIRE GORE RY PHOTOGRAPHS
OF THE VICTIMS IS AN ABUSE
OF DISKBRETION?
DIE NOT.
BUT I SUBMIT TO YOU, THIS IS
A VERY UNUSUAL SITUATION
WHERE YOU ALREADY STAND
CONVICTED BEFORE THE JURY.
ALL OF THE EVIDENCE HAS BEEN
STIPULATED BY BOTH SIDES AS
ADMITTED INTO EVIDENCE, SO
THAT THEY KNEW, THE JUDGE,
BOTH SIDES KNEW THAT THIS
PHOTOGRAPH WAS GOING TO BE
INTRODUCED INTO EVIDENCE.
THE JURY WAS GOING TO SEE
IT.
THE DEFENSE COUNSEL SAID,
TALKING ABOUT GORY PHOTOS IN
ABSTRACT, THAT IS ONE THING.
THESE JURORS HAVE NEVER SEEN
THIS TYPE OF PHOTO BEFORE.
YOU SEE THESE TYPE OF PHOTOS
ON A REGULAR BASIS, SO DO I.
THE LAY PERSON, THE ONLY
TIME THEY SEE THEM INJURY.
IF THE STATE HAD
ATTEMPTED TO SHOW THOSE
PHOTOS TO THE VENIRE AND THE
TRIAL COURT WOULD HAVE ALLOWED
THE STIT DO SO, WOULD YOU
HAVE AN EXCELLENT ARGUMENT
THAT YOU JUST PREJUDICE THE
ENTIRE PANEL.
MAYBE SO.
THAT IS NOT WHAT HAPPENED.
IN FACT, IN THE CASE, THE
PROSECUTOR DID NOT REALLY
OBJECT.
HE EXPRESSED CONCERN ABOUT
IT AN TOLD THE JUDGE IT IS
UP TO YOU, YOU COULD ALLOW
THIS IN YOUR DIGRESSION,,
YET THE JUDGE EVEN WOULD YOU
TELL A VERY VOCAL OBJECTION
FROM THE STATE DID NOT LET
IT.
UNDER THE RECORD THAT EXISTS
I LAID OUT IN THE BRIEF WHEN
HE ASKED HIM ABOUT IT.
WHEN HE ASKED POTENTIAL
JUROR, THEY SAY, WELL, I
THINK CAN I DO IT, YOU KNOW
WHAT?
I HAVE NEVER SEEN ANYTHING
LIKE THAT.
I DON'T KNOW.
I DON'T MOW IF I GET SICK TO
MY STOMACH OR NOT.
I DON'T KNOW IF I CAN HANDLE
THAT.
I DON'T KNOW IF I WOULD HAVE
EMOTIONAL REACTION OR
PHYSICAL REACTION.
THERE ARE ABOUT SIX JURORS
WHO SAID, I TRIED BUT I HAVE
NEVER SEEN THAT.
THIS WOULD HAVE ALLOWED THEM
TO MAKE SURE THEY WOULD NOT
BE COMPLETELY BIAS BY THAT
PHOTOGRAPH ALONE WHICH THEY
SUBSEQUENTLY SAW IF THEY SAT
ON THAT JURY.
WITH OUR ASSISTANCE, YOU
HAVE EXHAUSTED ALL OF YOUR
TIME MR. QUARLES.
MR. NUNNELLEY.
MAY IT PLEASE THE COURT,
I REPRESENT THE COURT ON
THIS APPEAL.
ON THE ORDER OF DEFENSE THAT
HAS TACK WITHIN RESPECT TO
THE VOIR DIRE CLAIM THAT THE
DEFENSE SHOULD HAVE BEEN
ABLE TO EXIN BIT THE
PHOTOGRAPHS TO THE JURY AS
THIS COURT POINTED OUT THERE
IS NO CASE ANYWHERE ON THE
COUNTRY THAT ALLOWS THAT.
THE STANDARD OF REVIEW FOR A
SO-CALLED LIMITATION ON VOIR
DIRE IS WHETHER OR NOT THE
TRIAL JUDGE ABUSED HIS
DIGRESSION IN WHATEVER HE
DID.
IT WOULD SEEM TO ME,
FRANKLY, THAT EVEN THOUGH WE
ARE SAYING DIGRESSION, I
WOULD BE CONCERNED IF THE
TRIAL JUDGES WOULD HAVE
ALLOWED SOMETHING LIKE THIS.
EX IN BUYS THAT ARE GOING TO
BE IN EVIDENCE.
I THINK WE WOULD BE GOING
DOWN A PATH.
I THINK YOU ARE ASKING FOR
TROUBLE.
I THINK THAT IS ASKING FOR
TROUBLE TO DO THAT.
I THINK YOU FIRST OF ALL --
I THINK YOU HAVE LAW ISSUES.
I THINK YOU HAVE SOME ISSUES
OF WHETHER OR NOT THE PANEL
IS PREJUDGING THE CASE.
THAT IS ALL I WAS
OBSERVING WHEN YOU SAY
DIGRESSION, I DID DEGREES,
WHICH YOU IMPLIES THE JUDGE
COULD HAVE SHOWN IT OR NOT.
I AM NOT REALLY SURE WHETHER
THAT WOULD BE CONTEM FLAT
PLATED.
I DON'T THINK AT THIS
TIME WOULD BE APPROPRIATE.
WELL, CAN YOU HELP ME.
AT WHAT POINT, DID THE
DEFENSE COUNSEL REQUEST
THIS?
WAS IT AFTER SIX OR SEVEN
POTENTIAL JURY MEMBERS SAID
THEY WOULD ENSURE OR WAS IT
OUTSET?
MY MEMORY IS, JUSTICE, IT
WAS EARLY, I DON'T REMEMBER
PRESIGHSLY WHERE IT WAS.
I WAS TRYING TO PICK IT UP
FROM THE RECORD ON THE
BRIEFS ABOUT WHERE IT
HAPPENED.
ALTHOUGH, YOU COULDN'T DO
THAT.
IT WASN'T, IT WASN'T JUST
IN, I WILL PUT IT THAT WAY.
IT WAS SOMEWHERE EARLY IN
THE PROCESS IS MY MEMORY OF
IT.
WITH RESPECT TO THE ISSUE,
THE STANDARD IS WHETHER OR
NOT THE REASONS WERE
GENUINE.
DID YOU TELL ME THIS,
THOUGH, FROM WHAT WE SEE
HERE, AND THE DEFENSE LAWYER
SAID, MISS HARP WAS THE ONLY
AFRICAN-AMERICAN IN THE
PANEL.
ON THE PANEL.
CORRECT?
HE SAID THAT I BELIEVE,
YES.
AND SO IT SEEMS TO ME
THAT WHEN YOU GOT AN ISSUE
OF THE ONLY AFRICAN-AMERICAN
JUROR IS GOING TO BE STRUCK,
THE ISSUE COMES TO, WELL, IT
IS SAID THAT WHETHER YOU
HAVE FAMILY MEMBERS WHO HAVE
BEEN ARRESTED OR CONVICTED
AS A RACE NEUTRAL REASON,
BUT WE KNOW, WE CAN'T DENY,
THAT UNFORTUNATELY GREATER
PERCENTAGE OF
AFRICAN-AMERICANS ARE
INCARCERATED THAN WHITE, MY
QUESTION IS REALLY DID
MR. BROWN ASK THE OTHER
JURORS WHEN THEY WERE
TELLING ABOUT THE ARRESTS,
WHETHER, OR FELONY, DID HE
ASK ABOUT WHETHER ANY OF
THOSE FELONYS WERE VIOLENT
OR IS IT CORRECT THAT
MR. BROWN ONLY ASKED THAT
NEXT QUESTION WHETHER ANY OF
THOSE FELONIES WERE VIOLENT
TO MISS HARP?
JUDGE PARRY ENTITY I AM
NOT TRYING TO AVOID YOUR
QUESTION.
THE RECORD IS WHAT ITH IS.
WELL, SO YOU, BUT IT IS
IMPORTANT, DO YOU NOT THINK
THAT IS IMPORTANT WHICH I
AND I GUESSING WE CAN GO
BACK ON THE RECORD, SINCE
THIS IS ONLY ONE OF FOUR
ISSUES RAISED, I WOULD HOPE
THAT WE WOULD KNOW THE
QUESTION IS:
WAS THAT QUESTION ASKED
ABOUT THE NATURE OF THE
FELONIES, WERE THEY VIOLENT
ASKED TO THE OTHER MEMBERS
THE PANEL?
MY MEMORY JUSTICE
PARIENTE IT WAS NOT
NECESSARY FOR THE STATE TO
ASK THE QUESTION LIKE THAT
ON THE CONTEXT OF THE WAY
THE ANSWER CAME OUT FROM THE
JUROR OF -- BUT AGAIN WHAT
WE COME BACK TO --
LET ME SEE IF I
UNDERSTAND YOUR ANSWER
WILLING.
DOES THAT MEAN, I MEAN,
THERE WAS ONE THAT HAD A
DUI.
SO THE QUESTION IS:
ANY OF YOUR FAMILY BEEN
ARRESTED FOR ANYTHING,
SOMEBODY SAID I HAD A NEPHEW
WITH DUI.
YES, YOUR HONOR.
OBVIOUSLY, ONE DOESN'T ASK,
WELL, WAS THAT A VIOLENT
FELONY?
IT IS NOT A LOGICAL
QUESTION.
IF YOU THINK, IF WE GO
BACK, YOU WILL SEE THAT NONE
OF THE OTHER, LIKE WHEN
ASKED ABOUT THE BROTHER OR
THE BURGLARY, THAT THE
FOLLOW-UP ON THE BURGLARY,
TO ASK WHAT WERE THE
CIRCUMSTANCES OF THE
BURGLARY, IT WOULDN'T HAVE
BEEN APPROPRIATE FOLLOW-UP
FOR ANYBODY ELSE, BUT THE
ONLY AFRICAN-AMERICAN JUROR
ON THE PANEL?
I DON'T REMEMBER
SPECIFICALLY ABOUT THE
BURGLARY, JUSTICE PARIENTE,
WHAT WE COME DOWN, WHAT THE
STANDARD WE HAVE TO LOOK AT
IS TO THE TRIAL JUDGE THAT
WAS SITTING IN THE COURTROOM
AND OBSERVING WHAT WAS GOING
ON AND THE INTERFLAY WAS
TAKING PLACE, DURING THE
JURY SELECTION FIND THAT THE
REASONS WERE GENUINE.
I UNDERSTAND WHAT MELBOURNE
SAYS, AND I THINK AT THIS
TIME IS THINK THAT WE HAVE HAD
YOU KNOW AGAIN WE'VE GOT CASE
AFTER CASE WHERE SOMEONE IS
CHALLENGED RACE NEUTRAL
REASON AND YOU'VE GOT AGAIN
WHITE JURORS BEING
CHALLENGED.
THIS CASE, CONCERNS FIRST OF
ALL A DEATH-PENALTY CASE
SECOND OF ALL, IF IT IS THE
CASE THAT SHE IS THE ONLY
AFRICAN-AMERICAN ON THE JURY,
WE'VE GOT TO MAKE SURE THAT
WE ARE NOT HAVING EITHER
PROSECUTORS OR DEFENSE UNDER
THE GUISE OF ASKING A
QUESTION THAT HAS BEEN
ACCEPTED RACE NEUTRAL USING
IT AS BASIS TO SYSTEMATICALLY
EXCLUDE AFRICAN-AMERICANS,
THAT IS WHY I'M CONCERNED IN
THIS CASE.
I UNDERSTAND ALL OF THAT
DISCRETION, BUT MR. BROWN THE
PROSECUTOR WHEN HE WAS FIRST
ASKED TO GIVE A RACE NEUTRAL
REASON, HE FIRST SAID THE
GODSON HAD A VIOLENT FELONY
THEN SAID ALSO INDICATED A
NUMBER OF OTHER FAMILY
MEMBERS AND FRIENDS HAD BEEN
CONVICTED HAD BEEN TO PRISON
THAT WAS NOT BORNE OUT EHAD
ANOTHER JUROR, CONFUSED.
SO WE GO BACK TO, AGAIN THE
ISSUE OF WHETHER THERE'S A
PRETEXT BECAUSE THAT WAS THAT
SITUATION THAT IS OTHER
FAMILY MEMBERS HAD BEEN
CONVICTED AND SENT TO PRISON,
OR NOT BORNE OUT BY HER
ANSWER SNOOS BUT, AND THE
TRIAL JUDGE DID EXACTLY WHAT
HE WAS SUPPOSED TO IN THAT
CONTEXT HAVE THE COURT
REPORTER READ BACK THE
JUROR'S ANSWERS.
AND AFTER THAT WAS DONE, AND
ANY OF THE CONFUSION, THAT
HAD TAKEN PLACE THAT HAD
EXISTED AND, THIS COURT IS
WAIL WAR WE SEE THIS KIND OF
CONFUSION A LOT.
IN CAPITAL JURY SELECTION
NEVERTHELESS FOUND RACES NOT
PRETEXT!!$$!!!!!!!!!!!!
PRETEXTUAL BUT RATHER WERE
GENUINE REASONS AND THAT IS.
PRESERVATION ISSUE, YOU
DON'T ARGUE THAT APPARENTLY
ON APPEAL.
BUT IS DEFENSE COUNSEL
REQUIRED TO OBJECT TO THE
PANEL THAT IS ULTIMATELY
IMPANELED RENEW HIS
OBJECTION?
I'M NOT SURE I'M FOLLOWING
YOU JUSTICE CANAL TERRO I'M
SORRY.
WAS -- CANTERO.
WERE A IT ADEQUATELY
PRESERVED DEFEND COUNSEL
OBJECTED AT THE TIME DERENEW
OBJECTION LATER THE JURY WAS
EMPAN SNOOELD I DO NOT
BELIEVE THAT HE DID RENEW THE
OBJECTION WHEN THE JURY WAS
IMPANELED, I DO NOT REMEMBER.
ISN'T THAT WOULDN'T THAT
BE A WAIVER?
.
THAT WOULD BE WAIVER.
.
LET'S GO BACK TO, YOU
CANDIDLY, AGREE YOU DIDN'T
RAISE THAT AS AN ISSUE THAT
IS WAS WAIVED BY THE
ACCEPTANCE OF THE JURY.
THAT'S CORRECT, JUSTICE
PARIENTE, EITHER MISSED THAT
COMPLETELY OR AM TOTALLY
CONFUSED BY WHAT'S GOING ON
IN THIS CASE I'M NOT SURE
WHOA IT IS.
WELL --
I WOULD -- IMAGINE I ENEMY
THE STATE HAS NEVER MISSED AN
OPPORTUNITY TO RAISE
PRESERVATION AS AN ISSUE.
MY CONCERN ABOUT IT IS THAT
WHEN OF YOU THIS KIND OF
SITUATION, GIFT TO GO BACK
AND LOOK AT JOYNER AND ALL
THOSE CASES, WHICH IS AS
JURORS ALREADY BEEN STRUCK
PEREMPTORILY THE IDEA OF
JOIRN THAT IS MAYBE BEFORE
THEY IF THEY OBJECTED SAY TO
A JUROR THAT WASN'T STRUCK
FOR CAUSE, IT GIVES THE TRIAL
JUDGE ANOTHER OPPORTUNITY TO
LOOK AT THAT JURY
COMPOSITION, MAYBE GIVE
ANOTHER PREEMPTRY CHALLENGE,
HERE IS MR. HARP WAS ALREADY
STRUCK, WHAT WOULD BE THE
PURPOSE OF SAYING I'M
RENEWING MY OBJECTION.
THEY COULDN'T DO ANYTHING.
I DON'T KNOW THAT THERE
WOULD BE.
MAYBE THAT IS WHY YOU
CANDIDLY DIDN'T -- RAISE THAT
ISSUE.
IF THE COURT IF THE COURT
THINKS THAT SUPPLEMENTAL
BREAKING ON THAT ISSUE IS
NECESSARY BILL MORE THAN
HAPPY TO DO IT.
I'M -- VERY MUCH CONCERNED BY
-- BY THIS OF COURSE AND I'M
WHAT I'M VERY MUCH CONFUSED
-- YOU KNOW, THEY YOU KNOW
VERY CANDID WITH THAT.
LET ME GO BACK TO THE ISSUE
YOU KNOW ON THE MERITS.
THERE'S CASE LAW OUT THERE
ESPECIALLY FROM THE DISTRICT
COURTS OF APPEAL THAT COMMENT
THAT ONE OF THE EVALUATIONS
OF WHEN OR NOT A CHALLENGE IS
PRETEXTUAL IS TO LOOK TO SEE
IF OTHER POTENTIAL JURORS
WERE QUESTIONED ABOUT THE
SAME ISSUE.
OR IF THEY GAVE SIMILAR
RESPONSES TO QUESTIONS AND
WEREN'T CHALLENGED.
AS A RESULT OF THAT.
SO MY QUESTION IF YOU ARE
FAMILIAR WITH THAT CASE LAW?
.
YES YOUR HONOR.
.
DID THE TRIAL JUDGE DO
THAT HERE?
THAT IS, DID THE TRIAL JUDGE
THEN IN ANALYSIS OF WHETHER
THIS WAS PRETESHGSUAL DID THE
TRIAL JUDGE SAY FOR INSTANCE
TO THE STATE WELL IS THAT
CORRECT?
WERE THERE OTHER JURORS THAT
QUESTIONED AND THEY CAME UP
WITH ANSWERS ABOUT FAMILY
MEMBERS,OR RELATIVES, OR
FRIENDS, BUT YOU DIDN'T
CHALLENGE THEM.
YOU ONLY CHALLENGED THIS
AFRICAN-AMERICAN JUROR HERE.
WAS THAT PART OF THE TRIAL
JUDGE'S ANALYSIS HERE OR DID
THE TRIAL JUDGE JUST STOP AT
A DETERMINATION THAT A JUROR
HAVING FRIENDS OR RELATIVES
WITH THE RECORD THAT THAT IS
NOT A PRETEXTUAL BASIS FOR A
CHALLENGE?
DID THE TRIAL JUDGE GO
THROUGH THE ANALYSIS THAT
SOME OF THE CASE LAW
SUGGESTED IT SHOULD.
YES, HE DID YOUR HONOR AND
IT APPEARS PAGES PAGES SZS
50IS SZ PAGES SZS 50IS SZ
THAT TRIAL JUDGE IS SAYINGS
BECAUSE SOMEBODY ELSE HAS THE
SAME FAMILY MEMBERS OR
WHATEVER,THEN THAT IS NOT
REALLY RELEVANT TO MY
ANALYSIS AS TO WHETHER IT IS
PRETEXTUAL FOR THIS JUROR
THACHLT WOULD SEEM TO BE
CONTRARY TO THAT CASE LAW
THAT SAYS YOU DO NEED TO EXAM
WHETHER THE CHALLENGER LEFT
PEOPLE ON THE JURY, THAT HAD
STHAIM WERE SIMILARLY SWAITED
AS FAR AS HAVING FRIENDS OR
RELATIVES THAT HAD RECORDS.
WELL, JUSTICE ANSTEAD WHEN
HE IS TALKING ABOUT SOMEBODY
ELSE SOMEWHERE I THINK THAT
IS CLEARLY WHAT HE IS DOING
THINK HE IS COMPARING THIS
JUROR TO THE OTHER JURORS.
HOW CAN HE DROLL THAT?
KEY -- HE MADE A POINT IN
THIS CASE, OF HAVING READ
THAT WHAT MISS HARP SAID;
CORRECT?
YES, MA'AM.
AND -- THIS ATTORNEY DID
IN FACT WHETHER WE BELIEVE IT
WAS ADEQUATE OR NOT THE
DEFENSE ATTORNEY DID IN FACT
NAME SOME OTHER PEOPLE THAT
HE BELIEVED INDICATED THAT
THEY HAD FAMILY OR FRIENDS
WHO HAD BEEN ARRESTED, OR HAD
CONVICTIONS, NOW DID HE READ
ANY OF THOSE PEOPLE'S ANSWERS
BACK?
I DO NOT BELIEVE THAT HE
DID.
AND SO HOW COULD HE MAKE
ANY REAL DETERMINATION AS TO
WHETHER OR NOT THIS IS --
MRS. HARP AND THOSE OTHER
PEOPLE WERE SIMILARLY SWAITD
IF HE DIDN'T KNOW WITH THE
THEY SAID YET HE MADE A POINT
OF READING BACK WHAT SHE SAID
I THINK WE'VE GOT TO START
WITH ON THE AL AS IS OR THE
REASON FOR HAVING MISS HARP'S
TESTIMONY OR VOIR DIRE
QUESTION AND ANSWER READ
BACK, BEING BECAUSE OF BEING
PRECIPITATED BROUGHT ABOUT
CONFUSION BETWEEN HER AND
ANOTHER JUROR, THAT DO
DOESN'T MEAN TO TRIAL JUDGE.
WHY WASN'T THE OTHER JUROR
THAT THE CONFUSION WAS MADE
ABOUT WHY WASN'T THAT
TESTIMONY READ BACK.
BECAUSE THAT WASN'T THE
JUROR THEY WERE TRYING TO
STRIKE.
-- THE DEFENSE ATTORNEY
HAD MADE THE ARGUMENT THAT
THERE WERE OTHERS SIMILARLY
SWAITED TO MISS HARP.
SO IN FAIRNESS WOULDN'T IT BE
IF YOU WANT TO KNOW WHAT MISS
HARP SAID YOU WANT TO COMPARE
IT TO WHAT THESE OTHER JURORS
SAID WHY WASN'T THEIR
TESTIMONY READ BACK ALSO?
WOULDN'T THAT HAVE BEEN AP
BETTER WAY TO DEAL WITH THAT
SITUATION?
WELL, IT MIGHT HAVE BEEN A
BETTER WAY TO DEAL WITH IT
BUT IT CERTAINLY NOT --
WE HAD REAL KNOWLEDGE AS
TO WHEN OR NOT THESE PEOPLE
WERE SIMILARLY SWAITED.
WELL I THINK WE ARE
PRESUPPOSING THE TRIAL JUDGE
DIDN'T REMEMBER WITH THE THE
OTHER JURORS SAID I DON'T
THINK WE CAN DO THAT BASED ON
THIS RECORD.
BUT HE DID, BUT THE
PROBLEM IS AND THIS IS A THIS
IS A DIFFICULT AREA, AND IT
THAT IS THE TRIAL JUDGE
ACTUALLY AND THE PROSECUTOR,
MIXED UP MISS HARP WITH THE
ONE THAT HAD SOMEBODY WHO HAD
A LOT OF THE ARRESTS SO THERE
WAS ALREADY CONFUSION GOING
ON ABOUT WHO ANSWERED WHAT.
THE DEFENSE LAWYER DID RAISE
THAT HE DIDN'T THAT THOSE
ISSUES THAT OR THE REASON
QUESTION OR FOR CHALLENGING
MISS HARP THAT THERE WERE
OTHER JURORS IN THAT SAME
SITUATION.
SO ALL JUFZ IS ASKING THE
NAUBL THING WOULD BE LOOK AT
THEN AND THERE.
WHAT ELSE WAS ASKED OF THEER
JURORS BY A REEDBACK.
WELL I SUPPOSE THAT BOE AN
ERROR ON THE PART IF THAT IS
AN ERROR I CERTAINLY DON'T
CONCEDE THAT IT I WAS THINK
THAT WOULD BE ERR ON PART OF
THE TRIAL JUDGE NOT SOMETHING
THAT SHOULD BE IMPUTER AS
SOME RACIALLY MOTIVATED
REASON TO THE STATE.
DID DEFENSE COUNSEL
REQUEST OTHER POTENTIAL
JURORS TESTIMONY BE READ
BACK.
NO THIERL DID NOT.
LOOK AT MR. BROWN'S
COMMENT BEFORE THE JUDGES'
STATEMENT, MAY BE HELP FULL
THAT APPEARS TO BE ABOUT THE
ONLY PLACE THAT IT OCCURS,
AND SEE WOULD YOU ADDRESS
THAT.
IT APPEARS JUST BEFORE WITH
THE YOU JUST READ.
AS MR. BROWN'S RESPONSE, THE
DEFENSE COUNSEL, AND ADDRESS
WHETHER THAT IS SUFFICIENT OR
NOT SUFFICIENT IN THIS
CONTEXT THAT SEEMS TO BE THE
CRUX OF THE MATTER.
I THINK THAT IT IS JUST
LEWIS, HE KIND OF LIKE IN THE
PROSECUTOR CONCLUDES THAT
WHEN YOU PUT EVERYTHING
TOGETHER, THERE'S NO ONE ELSE
THAT IS EVEN CLOSE TO THAT
NOBODY ELSE HAS MODERN A
SINGLE PERSON WHO IS STILL ON
THE PANEL, NO ONE ELSE THAT
IS EVEN CLOSE TO HER, AND
IT'S FOR THAT BASES IT
CERTAINLY RACE NEUTRAL THAT
IS THE KIND OF --
THE JUSTICES RAISING THE
STHASH A CORRECT STATEMENT I
THINK THAT IS REALLY WHERE
THAT'S GOING.
AND -- I THOUGHT DOES THAT
IMPACT THE DECISION PROCESS?
I THINK IS REALLY -- WHERE
THE QUESTION IS LEAD SNOOG I
THINK THE TRIAL JUDGE FOUND
THAT WAS A CORRECT STATEMENT
BASED UPON HIS KNOWLEDGE AND
HAVING OBSERVED THE VIRDIER.
THAT DOESN'T REALLY ANSWER
THE INITIAL QUESTION I ASKED
WHICH THAT IS NO ONE ELSE IS
SIMILARLY SWAITED THAT IS
THAT THEY HAVE A RELATIVE WHO
IS IN THERE, WERE A PRIOR
VIOLENT FELONY, IF THE
QUESTION WAS NOT ASKED, THE
WHITE JURORS, AND JUSTICE
CANTERO MAY BE CORRECT THERE
IS A REASON FOR EACH ONE LIKE
THE ONE IF A DUI OBVIOUSLY
THAT IS NOT A VIOLENT FELONY
BUT THAT IS WHAT WE NEED TO
LOOK AT DON'T WE OH, TO SEE
IF THERE WAS MINIMAL
QUESTIONING OF THIS JUROR
BECAUSE THAT PROSECUTOR SAID
I'M GOING TO GET RID OF THAT
JUROR THE YOU KNOW, BECAUSE I
DON'T WANT BLACK JUROR TO SO
INTEREST THIS CASE.
TO SIT ON THIS CASE, WE DON'T
KNOW THAT WAS SAID BUT THE
WAY YOU UNDERSTAND WHETHER IT
IS OR NOT IS SUPERFICIAL
QUESTIONING OF ONE JUROR AND
MORE IN-DEPTH QUESTIONING OF
ANOTHER JUROR IS THAT YOU
KNOW, WE CAN'T GET INSIDE
SOMEONE'S MIND.
SO THAT IS WHY WE NEED TO
WIPED HOPE THAT YOU WOULD
KNOW WHETHER OR NOT THERE
WERE REASONS WHY THE OTHER
JURORS WERE NOT ASKED THE
SAME FOLLOW-UP QUESTION.
.
.
AND I BELIEVE I HAVE
ALREADY ANSWERED THAT
QUESTION, THAT IN THE CONTEXT
OF THE JURORS ANSWERS THAT
SORT OF FOLLOW-ON QUESTIONING
WAS -- NOT PARTICULARLY
NECESSARY.
CANTERO HELPED YOU ON THAT
ONE I DON'T KNOW AND YOU
THINK THAT'S GOING TO BE THE
CASE FOR EVERY JUROR THAT
WOULD BE SIMILAR THAT IS IF
THERE WAS SOMETHING SAID THAT
WOULD SHOW THAT IT COULDN'T
HAVE BEEN AL VIOLENT FELONY?
I BELIEVE THAT IS GOING PROVE
TO BE CORRECT, JUSTICE
PARIENTE WITH THE COURTOE --
WASN'T THERE ONE JUROR WHO
SAID THEY HAD A BROTHER OR
SOME RELATIVE WHO HAD BEEN
CONVICTED AND WAS SERVING
TIME FOR BURGLARY AND, SOME
OTHER OFFENSE I BELIEVE?
BERGRY COULD POSSIBLY BE
ABOUT -- BURGLARY COULD
POSSIBLY BE ABOUT -- THERE
WAS NO FOLLOW-UP ON THAT ONE
WAS THERE
I DON'T BELIEVE THERE WAS
ONCE AGAIN WE COME BACK TO
THE TRIAL JUDGE WHO OBSERVED
THIS PROSECUTOR'S CONDUCT
THROUGHOUT THE COURSE OF
VIRDIER FOUND THESE REASONS
WERE NOT CONTEXTUAL.
--
THIS VOIR DIER.
SIR.
WE KNOW HOW LONG VIRDIER
WENT.
.
I DON'T REMEMBER HOW LONG
IT LASTED OFF TOP OF MY HEAD
IT WENT ON FOR A WHILE.
DID I GOT ON MODERN A DAY.
I BELIEVE IT DID.
IT IS -- FIVE -- FIVE OR 600
PAIMGZ OF RECORD WITH COURT'S
PERMISSION LIKE TO TURN TO
CRIES PALE DEALS WITH PATSCAN
ADMISSIBILITY OF IT.
THE -- ISSUE IS NOT I
DON'T HAVE MUCH TIME THE
ISSUE IS NOT HOW YOU CONDUCT
A PET SCAN FROM A MECHANICAL
STANDPOINT OF INYEKING THE
DYE INTO THE INDIVIDUAL AND
WAITING APPROPRIATE LENGTH OF
TIME THEN IS FLYING
INDIVIDUAL INTO THE SCANNING
MACHINE.
THAT IS NOT THE ISSUE.
NEVER HAS BEEN THE ISSUE.
THE ISSUE IS WHAT DO YOU DO
WITH THE RESULTS OF THAT
PETSCAN,AND HOW CAN YOU
INTERPRET THOSE RESULTS.
THAT IS WHERE THE PETSCAN IN
THIS CASE FAILS TO DEFY AN AL
SOYS.
IS THAT THE ARGUMENT THAT
WAS MADE AT TRIAL.
THAT WAS THE ARGUMENT THAT
WAS MADE NOT THE FRYE
HEARING.
THAT IS THE ARGUMENT AT
FRYE THE ONE YOU ARE MAKE
NOW.
YES.
WE HAVE NEVER CHALLENGED
THE STATE NEVER CHALLENGED
THE WAY YOU ACTUALLY DO THE
PET SCAN THERE ARE A NUMBER
OF PROBLEMS A NUMBER OF
TECHNICAL PROBLEMS WITH WHAT
WE ARE DEALING WITH HERE.
THE --
WHY DON'T WE CUT TO THE
CHASE HERE, WHAT IS IT THAT
SHOULD HAVE BEEN FRYE TEST
SND WITH THE ARE YOU ALLEGING
SHOULD HAVE BEEN FRYE TESTED
THAT WAS NOT.
WHAT A SHOULD HAVE BEEN
FRYE TESTED TWO THINGS FIRST
OF ALL THAT SECOND IN THEP
CHRONOLOGY OF EVENTS IS
WHETHER OR NOT ONE CAN DRAW
CONCLUSIONS ABOUT AN
INDIVIDUAL'S BEHAVIOR, BASED
UPON THE IMAGES GENERATED BY
THE PET SCAN ITSELF, I WOULD
SUGGEST THAT NO COURT TO EVER
CONSIDER THE ISSUE HAS FOUND
THAT THAT PASSES FRYE.
THE SECOND COMPONENT OF FRYE
IS ANALOGOUS TO THE
POPULATION FREQUENCY
STATISTICS THAT ARE USED IN
DNA ANALYSIS, AND THAT IS IN
THE WAY THAT THE RESULTS OF
MR. HOSKINS' PETSCAN WERE
COMPARED EVALUATED TO OTHER
SO CALLED NORMAS WILL
GENERATED ON A DIFFERENT
MACHINE WITH A DIFFERENT
PROTOCOL WITH A DIFFERENT
RESOLUTION, AND A DIFFERENT
PLACE.
THAT IS WHAT NO EXPERT
TESTIFIED IS PROPER TO DO IS
CROSS COMPARING A PET SCAN ON
MACHINE A, WITH NORMALS
GENERATE!!$$!!!!!!!!!!!!!!
GENERATED ON MACHINE B.
THAT IS OUTSIDE THE STANDARD
OF PRACTICE, I WILL ASK THE
COURT TO DECIDE THE PET SCAN
ISSUE EVEN THOUGH SERM NOT
DISPOSITIVE OF THIS CASE
BECAUSE OF THE FREQUENCY WITH
WHICH THE ISSUE SEEMS
TIERISE.
THANK YOU VERY MUCH SIR.
YOU HAVE A -- COUPLE MINUTES.
STARTING WITH PET SCAN,
THE STATE ATEMENTSZ TO
ATTEMPTS TO RELY ON 90.1041B
EFFECTIVE JULY 1, '20 # 03
FOR THEIR FAILURE TO OBJECT
TO THE PET SCAN COMING IN AT
PENALTY PHASE AFTER THE FRYE
HEARING.
IT WAS DETERMINATION OF
ADMISSIBILITY PRETRIAL.
I CONTEND THAT THE RECORDS
SUPPORTS MODERN JUST MORE
THAN JUST FAILURE OF THE
STATE TO OBJECT TO THE PET
SCAN BEING ADMITTED AT THE
PENALTY PHASE, THE STATE DID
OBJECT TO CERTAIN ASPECTS OF
THE TESTIMONY OF DR. WOO, WAS
O POWER POINT SOME OF THE NEW
NONES THAT HE CAME -- KNOWNS
THAT HE CAME UP WITH THAT WAS
RECTIFIED AND HE WENT ON WITH
HIS TESTIMONY AND IN IN FACT
-- IN FACT THE STATE
SPECIFICALLY AGREED ON THE
RECORD THAT THE EVIDENCE
COULD BE INTRODUCED IN THAT
IS VOLUME ONE # ONE, PAGE
968.
AS FAR AS THE JURORS,
SUPERFICIAL QUESTIONING IF
THE ANSWERS ARE NOT
DISPOSITIVE OR NOT REVEALING
OF WHETHER OR NOT THEY WERE
VIOLENT FELONIES,
SPECIFICALLY, IF YOU LOOK AT
THE QUESTIONING OF HE STATE
OF -- MISS CHAMPION'S FRIEND,
THE SON SALLY'S NEPHEW
BROTHER ALTHOUGH COULD HAVE
BEEN VIOLENT FELONIES STATE
DID NOT PURSUE THAT AT ALL IN
SUBSTANCE SOME OF THOSE LEAST
A CALM OF THEM THE DEFENSE
SUBSEQUENTLY ELISE$$!!IT!!$$!!!! ELISITED WHAT
THEY WERE STATE DID NOT,
SUPERFICIAL QUESTIONING IS A
FACTOR THERE IS A
PRESERVATION PROBLEM, AT PAGE
514.
HE SAID HE ACCEPTED THE
PANEL'S MY NOTES REFLECT
HOWEVER AS JUSTICE PARIENTE
HELPFULLY POINTED OUT MISS
HARP WAS GONE THERE WAS NO
WAY TO RECTIFY THAT.
BUT WE HAVE SAID IN OTHER
CASES THAT IT IS NOT
PRESERVED EVEN WHEN THERE HAS
BEEN A PREMENTRY CHALLENGE
THAT WAS CONTESTED, AND, THEY
FAILED TO RENEW THE OBJECTION
AVENT WE IN ZACK AND OTHER
CASES.
OF YOU I THINK WHEN
EXPECTFULLY PETTING 230IR78
FORM OVER SUBSTANCE TRIAL
SECURITY WAS CLEARLY ON
NOTICE DEFENSE COUNSEL
OBJECTED TO RACE NEUTRAL
REASON IT WAS NOT GENUINE HE
MADE THAT CLEAR ON RECORD.
WE HAVE TO RECEDE FROM --
SOME OF OUR CASES --
PERHAPS, BUT MAGIC WORDS
AREN'T REQUIRED AS LOMG AS
THE TRIAL JUDGE IS APPRISED
OF WITH THE THE OBJECTION IS
HE CLEARLY WAS HERE ON THE
RECORD, I THINK THAT IS
SHOULD BE SUFFICIENT.
AND --
HE FEELS THERE IS A NEED A
RESPONSE.
JUSTICE BELL, THE DEFENSE
COUNSEL CONSIDERATELY ASKED
BEFORE VOIR DIER STARTED
BEFORE HE STARTED VOIR DIRTEE
-- COULD USE THIS FEATHSAID I
INTEND TO USE THIS PHOTOGRAPH
BEFORE HE DID ANYTHING NONE
OF THE JURORS THAT THE POINT
EXPRESSED ANY RELUCTANCE
ABOUT GORY PHOTOS HE PUT THE
COURT AND OTHER SIDE ON
NOTICE THAT WAS WHEN
DISCUSSED IN THE TRIAL JUDGE
RULED.
THANKS.
THANK YOU, THANK YOU VERY
MUCH, WE WILL MOVE TO OUR