The opinion
James Harris Appendix Page 000001
February 3, 2015
NO. AP-77,029
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
JAMES HARRIS JR.
Appellant
VS.
STATE OF TEXAS
Appellee
APPEAL FROM THE 149TH DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
AT
ANGLETON, TEXAS
TRIAL COURT CAUSE NO. 67063
APPELLANT’S APPENDIX
Jimmy Phillips, Jr.
P. O. Drawer 29
Angleton, Texas 77516-0029
Tel: 979-849-8511 Fax: 979-849-1409
email: jimmy@jpjlaw.com
SBN 15953000
Attorney for Appellant
JAMES HARRIS JR.
February 2015
James Harris Appendix Page 000002
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE
Appendix - Attachment 1 ( Reporter’s Record Vol 73, Pg. 5 to 42). . . . . . . . . . . . 3
Appendix - Attachment 2 ( Reporter’s Record Vol 73, Pg. 125 to Pg. 129 ). . . . 41
Appendix - Attachment 3 ( Reporter’s Record Vol 74, Pg. 60 to 61). . . . . . . . . . 46
Appendix - Attachment 4 ( Reporter’s Record Vol 74, Pg. 152 to 153) . . . . . . . 48
Appendix - Attachment 5 (District Clerks Record Vol 4, Pg. 115).. . . . . . . . . . . 50
Appendix - Attachment 6 (Reporter’s Record Vol. 74, Pg. 10, line 6 to 17). . . . 51
Appendix - Attachment 7 (Reporter’s Record Vol. 26, Pg. 48 to 139 ). . . . . . . . . 52
Appendix - Attachment 8 (Reporter’s Record Vol. 27, Pg. 112 to 213 ). . . . . . . 144
Appendix - Attachment 9 (Reporter’s Record Vol. 29, Pg. 48 to 253 ). . . . . . . . 246
Appendix - Attachment 10 (Reporter’s Record Vol. 32, Pg. 34 to 109 ). . . . . . . 352
Appendix - Attachment 11 (Reporter’s Record Vol. 49, Pg. 201 to 232 ). . . . . . 428
Appendix - Attachment 12 (Reporter’s Record Vol. 32, Pg. 101 to 102 ). . . . . . 459
Appendix - Attachment 13 (Reporter’s Record Vol. 27, Pg. 190 to 195 ). . . . . . 461
Appendix - Attachment 14 (Reporter’s Record Vol. 27, Pg. 204 to 207 ). . . . . . 467
Appendix - Attachment 15 (Reporter’s Record Vol. 23, Pg. 99 to 100 ). . . . . . . 471
James Harris Appendix Page 000003 5
1 DECEMBER 9, 2013
2 THE COURT: We're on the record. The record will
3 reflect that counsel for the State, counsel for defense, the
4 Defendant are present. The jury is not present.
5 Do I understand we have another 705 examination
6 before the next witness?
7 MR. WOOTEN: Yes, Your Honor.
8 THE COURT: All right. Are you ready to proceed
9 on that?
10 MR. WOOTEN: Yes, sir.
11 THE COURT: Ms. Yenne, are you ready to proceed?
12 MS. YENNE: Yes, Your Honor.
13 THE COURT: All right. Call your witness.
14 MR. WOOTEN: We call Dr. Raymond Singer.
15 (Witness duly sworn by the Court.)
16 THE COURT: Have a seat, please.
17 You may inquire when you're ready.
18 RAYMOND SINGER,
19 having been first duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. WOOTEN:
22 Q. Would you state your full name for the record, please?
23 A. Raymond Singer.
24 Q. And how are you employed, sir?
25 A. I am a neuropsychologist and a neurotoxicologist.
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1 Q. Okay. Could you tell us a little bit about your
2 educational background?
3 A. Sure. After graduating high school I attended the
4 University of Rochester in Rochester, New York, where I
5 received a Bachelor's degree in psychology.
6 Following that I was accepted and attended
7 graduate school in psychology at Washington State University
8 where I received a Master's degree and a Ph.D. degree in
9 psychology.
10 Following that I went to New York City and I
11 accepted a National Institute of Health postdoctoral fellowship
12 in biological psychiatry at New York University School of
13 Medicine.
14 Following that I accepted a postdoctoral
15 fellowship in environmental epidemiology, which is the study of
16 diseases among -- in the population. This program was a
17 National Institute of Environmental Health Sciences program
18 administered through the Mount Sinai School of Medicine,
19 Environmental Sciences Laboratory, and Department of Community
20 Medicine. I studied under the direction of Dr. Irving J.
21 Selikoff, who was the world's premier public health doctor who
22 was devoting his energy and time and resources to studying the
23 effects of toxic chemicals, particularly the effects of low
24 level chronic exposures. And this work was pioneering work and
25 has set the standard around the world concerning how to
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1 evaluate these types of exposures.
2 Q. Okay. So hang on. And I know we're going to talk a
3 little more about neurotoxicology in a minute. Are you -- but
4 let's get through.
5 So you have a Ph.D. in what, sir?
6 A. In psychology.
7 Q. Okay. And are you board certified?
8 A. Yes.
9 Q. In what?
10 A. In neuropsychology with added qualifications in
11 forensic specialization.
12 Q. Okay. Now is there a board certification for
13 neurotoxicology?
14 A. No.
15 Q. Okay. And so you said that you have added additional
16 training. Is that in the area of what? Neurotoxicology?
17 A. Yes.
18 Q. All right. Can you tell us a little bit more,
19 continuing with what you were saying before, about the
20 specialized training that you've had in neurotoxicology?
21 A. Sure. At Mount Sinai School of Medicine I was -- I
22 was within the group of people that was tasked with assessing
23 the effects of neurotoxicity. My work at that time included
24 evaluating patients at the Environmental and Occupational
25 Health Clinic of Mount Sinai School of Medicine as well as
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1 developing methodology to evaluate the effects of
2 neurotoxicants. Such methodology included nerve conduction,
3 velocity assessment, which I studied and which I practiced and
4 which I taught at Mount Sinai School of Medicine to other
5 doctors and other personnel. We applied this technique to
6 studying Agent Orange and the results of that that we published
7 was very helpful, apparently, to the Veteran's Administration,
8 ultimately, when they were --
9 MS. YENNE: Objection. Nonresponsive at this
10 point in time, Your Honor.
11 THE COURT: I'll overrule it for purposes of this
12 hearing.
13 Q. Is there any other further training that you've had or
14 work you've done in the area of neurotoxicology?
15 A. Well, yes. I was there for approximately four years,
16 and I could talk about the work I did there or I can continue
17 on after that.
18 Q. Well, so you were there four years. Was it -- was
19 that four years of work done specifically in the area of
20 neurotoxicology?
21 A. Yes. With regard to neuropsychological and
22 neurophysiological and statistical applications to study
23 neurotoxicology.
24 Q. Okay. And then after those four years, what other
25 training did you have or education in the area of
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1 neurotoxicology?
2 A. Since that time I have become a member of the Society
3 of Toxicology. And to become a member of that society, you
4 have to get a recommendation from other toxicologists, as well
5 as show that you are a toxicologist through publications and
6 through your work. And they accepted me as a full member.
7 I've been a full member for over 25 years. I've attended a
8 number of their conferences. I've made presentations at their
9 conferences.
10 I became a member of the Roundtable of Toxicology
11 Consultants, which is a subgroup of the Society of Toxicology,
12 of toxicologists that have an independent professional practice
13 in toxicology. And there is maybe a hundred, 150 members of
14 this group.
15 Q. Okay. Any other training or education in this area?
16 A. Well, I just wanted to just elaborate a little more.
17 And in that organization I have been elected an officer a
18 number of times, and I've taught at seminars sponsored by the
19 Roundtable of Toxicology Consultants.
20 Q. Okay. Any other courses or presentations that you've
21 taught that you haven't already covered, either as a
22 neurotoxicologist or as a neuropsychologist?
23 A. There are numerous presentations that I've made in
24 both of those fields that's cataloged in my vitae.
25 Q. Okay. And have you -- you've already talked about
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1 publishing several articles. Have you published any other
2 articles?
3 A. One of the -- yes, I have published several articles.
4 And one of the -- one of my early, I might say, achievements in
5 neurotoxicology was that I got a call from Van Nostrand
6 Reinhold, which was one of the larger publication sources for
7 toxicology and industrial hygiene, and they asked me to write a
8 book on neurotoxicology, which I did at that time. And they
9 published, and that was one of the first books by a single
10 author on the field of neurotoxicology.
11 Q. And what is the name of that publication, sir?
12 A. Neurotoxicity Guidebook. And one of the peer
13 reviewers was --
14 MS. YENNE: Objection. Nonresponsive at this
15 point in time, Your Honor.
16 THE COURT: I agree with you it is; but for the
17 purposes of this hearing, I'll go ahead and allow him to
18 elaborate. But we're not before the jury at this time.
19 Q. Could you tell me -- I'm sorry. Could you continue
20 about the peer review?
21 A. Yes. I just wanted to mention that one of the peer
22 reviewers was -- is actually the editor in chief of the journal
23 Neurotoxicology and is a prominent neurotoxicologist in the
24 Society of Toxicology.
25 Q. Okay. Now other than the professional organizations
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1 that you've already spoken of, are you a member of any other
2 professional organizations?
3 A. Yes. I'm a member of the American Academy of Clinical
4 Toxicology. And again, they had admission requirements where
5 you had to show that you're a toxicologist to get admitted
6 there.
7 I was a member of the American College of
8 Toxicology. I'm no longer a member of that group. But that is
9 another group where you needed to present credentials to be
10 accepted.
11 In addition, I'm a member of the National Academy
12 of Neuropsychology. I'm a fellow of that organization. My
13 work in neurotoxicology has been recognized there as well.
14 Q. Now have you testified as an expert witness before?
15 A. Yes.
16 Q. In what areas?
17 A. In neurotoxicology and neuropsychology.
18 Q. Okay. Let's take those separately. How many times
19 have you testified in neuropsychology?
20 A. I think the most of the times that I testify I'm
21 testifying in both fields, neuropsychology and neurotoxicology.
22 Q. Okay.
23 A. I'm not recalling that to be separate.
24 Q. Okay. Well, let me ask a better question then.
25 How many times have you testified in both those
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1 areas?
2 A. It's difficult for me to say exactly. I tried to
3 review my testimony records last night. And I used to be
4 testifying about six times year, and now it seems like I'm
5 testifying about four times a year since approximately 1983.
6 Q. Okay. And is that in state court or federal court?
7 A. Both.
8 Q. Okay. And have you testified only in one state or
9 many states?
10 A. A number of states.
11 Q. Now what exactly is a neurotoxicologist?
12 A. A neurotoxicologist is a scientist who studies the
13 effects of poisons on the nervous system.
14 Q. Okay. And what is a neuropsychologist?
15 A. A neuropsychologist is a scientist who studies the
16 nervous system substrates of psychological function.
17 Q. Okay. Now what -- let's take one at a time.
18 A. I would say they focus on the brain behavior
19 relationship. That will be a more cogent way to describe it.
20 Q. Okay. Now what does a neurotoxicologist actually do
21 if they are asked to work on a case?
22 A. There are many, many types of neurotoxicologists; and
23 they -- it can range from looking at neurochemistry to looking
24 at neuroanatomy or, in my case, I look at the nervous system
25 function.
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1 Q. Okay. Does this field of expertise rely upon accepted
2 scientific principles in the scientific community?
3 A. Yes.
4 Q. Has it been recognized as legitimate science by the
5 scientific community?
6 A. As far as I know it has. We have our journals. We
7 have meetings.
8 Q. Okay.
9 A. We get referrals from doctors and other professionals.
10 Q. Okay. And what about neuropsychology? Is it based on
11 accepted principles in the scientific community?
12 A. Yes.
13 Q. It has been recognized as a legitimate field of
14 science?
15 A. Yes. As far as I know it is recognized.
16 Q. Okay. Now can you tell me a little bit about -- well,
17 let me just ask you this. You were retained to work on the
18 James Harris case?
19 A. Yes.
20 Q. Okay. What, in fact, have you done -- what work have
21 you done on the James Harris case?
22 A. I've reviewed records in the case. I reviewed the
23 neuropsychological findings of Dr. Kasper. I conducted my own
24 evaluation of Mr. Harris. I've seen him on two occasions prior
25 to today. I studied the research literature on pesticides and
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1 other toxic substances to which Mr. Harris had been exposed. I
2 reviewed the latest thinking on the effects of toxic substances
3 on developing nervous systems of children and adolescents. I
4 reviewed records including Mr. Harris' educational records and
5 other cognitive testing that he underwent. I reviewed
6 information regarding the types of pesticides that had been
7 applied to agricultural fields at the time Mr. Harris was
8 working in those fields as a child. And I probably did other
9 things, too.
10 Q. Okay. Now when you reviewed Dr. Kasper's work in the
11 case, did you form opinions as to her work?
12 A. Yes.
13 Q. Okay. And did you accept her findings?
14 A. Yes.
15 Q. Did you form an opinion as to Mr. Harris', for lack of
16 a word, mental health from a neurotoxicological and a
17 neuropsychological basis?
18 A. Yes.
19 Q. And what, if any, are those opinions?
20 A. I think he suffers from brain injury from exposure to
21 numerous toxic substances, particularly from childhood,
22 resulting in major neurocognitive disorder.
23 Q. Okay. Now what substances are we talking about?
24 A. Organophosphate pesticides, organochlorine pesticides,
25 hydrogen sulfide, lead, mixture of solvents, mercury, carbon
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1 monoxide. I may be missing some there in the occupation. But
2 as well I considered cocaine neurotoxicity.
3 Q. Okay. And in your work on this case did you form an
4 opinion as to whether James Harris was exposed to the toxicants
5 that you just listed?
6 A. Yes.
7 Q. Okay. And what is that opinion?
8 A. I don't understand.
9 Q. Well, I asked you if you had formed an opinion. Are
10 you saying that your opinion is that he was?
11 A. Yes.
12 Q. Okay. Sorry.
13 A. My opinion was he was exposed to numerous neurotoxic
14 agents that ultimately resulted in a brain injury.
15 Q. Okay.
16 MR. WOOTEN: May I have a moment, Judge?
17 THE COURT: You may.
18 MR. WOOTEN: Judge, just so the Court knows,
19 because we've tried to accommodate the Court's directives on
20 the record, we brought -- we had sent a bunch of CD's to
21 Dr. Singer. He brought those CD's back to us. We've handed
22 those exact CD's to the State. Also -- and this is me learning
23 internet or whatever. There is also something called the
24 Dropbox where we put stuff on the Dropbox and Dr. Singer would
25 go to the Dropbox and retrieve. We downloaded that material to
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1 this stick. Now -- and so we brought those to court.
2 Now -- and we don't mind doing this, but now what
3 we're going to have to do is go and, I guess, print all that
4 out. But this is going to be, basically, all the records that
5 are in this case. We don't mind doing it, but we don't have
6 any high speed --
7 MS. YENNE: I would simply ask for a little bit
8 of time.
9 MR. WOOTEN: I'm just letting you know where we
10 are at.
11 THE COURT: That's fine.
12 MR. WOOTEN: And I'm not objecting to what they
13 are asking us to do.
14 THE COURT: All right. So we'll recess -- are
15 you passing the witness at this time?
16 MR. WOOTEN: Yes, Judge. I'm sorry. For the
17 record we pass the witness.
18 THE COURT: All right. Then let's recess. Get
19 the records printed. We'll give Ms. Yenne some time to look at
20 that.
21 Dr. Singer, you may step down. The Rule has been
22 invoked in this case. I assume since you've testified many
23 times you know what that is.
24 THE WITNESS: Please remind me, Your Honor.
25 THE COURT: Okay. You cannot discuss anything
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1 about this case with anyone except the lawyers. You're free to
2 talk to the lawyers or you're free to talk to their
3 investigators if you want to. You can't read any notes or
4 transcriptions that anybody may have taken about the case. You
5 can't ask, you know, what has somebody else testified to
6 concerning this case. Do you understand that?
7 THE WITNESS: Yes, sir.
8 THE COURT: All right. Thank you. You may step
9 down.
10 We'll be in recess until the State has had the
11 opportunity to review the records.
12 (A short recess was taken.)
13 THE COURT: We're on the record. The record will
14 reflect that counsel for the State, counsel for the defense,
15 the Defendant, as well as Dr. Singer are all present and seated
16 in the courtroom. The jury is not present.
17 Ms. Yenne, have you had time to review the
18 records?
19 MS. YENNE: Oh, yes.
20 THE COURT: All right. You may proceed.
21 CROSS-EXAMINATION
22 BY MS. YENNE:
23 Q. Just a few questions, Dr. Singer. You talked about
24 there is no license for a neurotoxicologist. Is that a fair
25 statement?
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1 A. Yes.
2 Q. Okay. Oh, by the way, my name is Jeri Yenne. It's a
3 pleasure to meet you. I'm the District Attorney here,
4 Dr. Singer. If I ask you a question that you just don't
5 understand, just tell me, I don't understand what you're
6 asking.
7 A. Sure.
8 Q. You won't be the first person who says that.
9 But there are licensed toxicologists in various
10 states, are there not?
11 A. Not to my knowledge.
12 Q. Okay. So there is no licensed toxicologist in New
13 Mexico? You don't have to have a license or a credential or
14 certified by the state to be a toxicologist?
15 A. That's correct. Let me just add. Perhaps forensic
16 laboratories might be licensed.
17 Q. Okay?
18 A. But other than that, no, there is no license for
19 toxicologists.
20 Q. Okay. So that's my point. So if I were a
21 toxicologist performing duties as to determine if some of these
22 substances were present, you would have to be licensed?
23 A. You know, I'm uncertain about that.
24 Q. Okay. But labs have to be licensed and accredited?
25 A. I know labs have to be accredited. I'm not sure if
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1 they have licensures.
2 Q. Okay. So let me go a little further. You're a
3 psychologist, correct?
4 A. I'm a neuropsychologist and a neurotoxicologist.
5 Q. Okay. My first question was you are a psychologist,
6 though, correct?
7 A. Yes.
8 Q. Okay. You're not a medical doctor, correct?
9 A. Correct.
10 Q. Okay. So you're not a radiologist, correct?
11 A. Correct.
12 Q. Okay. And you're not a neurologist, is that correct?
13 A. Yes.
14 Q. Okay. Let me go -- Mr. Wooten, I think, probably
15 meant to ask you but forgot. You are coming here today for
16 compensation. Is that correct? You're getting paid for your
17 services?
18 A. I came here to testify, and I'm getting paid.
19 Q. Okay. And what is your hourly rate for your services
20 as a neurotoxicologist?
21 A. $350 an hour.
22 Q. Okay. And when were you first contacted? And by the
23 way, were you contacted by the defense in this case?
24 A. Yes.
25 Q. Okay. Who from the defense contacted you?
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1 A. I believe it was Mr. Wooten.
2 Q. Okay. And when, please?
3 A. I don't recall.
4 Q. Okay. All right. And approximately -- when you say
5 I'm getting compensated for my time and my testimony, that
6 would be at the $350 an hour rate, correct?
7 A. Yes, except for travel is --
8 MR. WOOTEN: Jeri?
9 Q. Okay. So I guess I'm asking for the financial
10 arrangements made with the defense in this case. There are
11 times you have different hourly rates as defense counsel is
12 passing to me here, correct? Your average rate, maybe, is 350.
13 Is that a fair statement?
14 A. Well, 350 is my rate for most of my work.
15 Q. Okay. Fair enough. Fair enough. And how many hours
16 do you have in this case, preparation time? How many hours do
17 you have to date, Doctor? Let me be a little more specific, if
18 I could.
19 A. Roughly, 85 hours.
20 Q. Okay. So what does that calculate to? And you are
21 authorized up to the sum of $30,000 in this case? Is that what
22 I'm --
23 A. Yes.
24 Q. Okay. All right. For preparation and testimony. Is
25 that a fair statement? Your cap is up to $30,000?
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1 A. For preparation, testimony, and expenses.
2 Q. Okay. And right now it looks like you're at 29,750.
3 Is that a fair statement?
4 A. Yes.
5 Q. Do you intend to bill for any remaining hours over
6 $30,000?
7 A. Yes.
8 Q. Okay. Hoping that maybe the Court will authorize the
9 same. Is that a fair statement?
10 A. First it goes to the defense attorneys --
11 Q. Sure.
12 A. -- and then they -- if they feel it's worthwhile, they
13 present it to the Court.
14 Q. Okay. But I guess what I'm saying is right now you're
15 at 29,750. You are here today. I would take it that you're
16 almost at the 30,000 cap. Is that a fair statement?
17 A. Yes.
18 Q. I'm not the greatest in math, Dr. Singer; but you
19 do --
20 A. I'm over the 30,000.
21 Q. Okay. You're over the 30,000. At some point in time
22 you will submit additional hours hoping that they are
23 considered for compensation. Is that a fair assessment?
24 A. Yes.
25 Q. Okay. You have two offices. Is that one in New York?
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1 A. I have an office in New York, but that is -- I'm not
2 there very often, and I don't have to maintain that office.
3 Q. Okay. But that office exists. Is that a fair
4 statement?
5 A. Yes.
6 Q. And your other office is in New Mexico?
7 A. Yes.
8 Q. Okay. Now I see that there was an MRI forwarded from
9 St. Luke's Hospital. Are you qualified yourself to read an
10 MRI?
11 A. No.
12 Q. Okay. When did you receive the MRI?
13 A. I don't recall.
14 Q. Okay. Did you get the same report of that MRI that
15 Dr. Kasper did from St. Luke's? It's the little one-page
16 report?
17 A. I believe that I did.
18 Q. Okay. Thank you.
19 What do you base your opinion on that you've
20 testified to about the -- I believe that the Defendant has been
21 exposed to -- has had some effects of neurotoxicity. Is that a
22 fair statement?
23 A. I don't understand the question.
24 Q. Okay. Well, refresh my memory. It's been an hour,
25 and I'm old. How does that sound? Okay? You gave an opinion
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1 to counsel about something that you believe has happened to
2 Mr. Harris, the Defendant?
3 A. Yes.
4 Q. What is that opinion? And then I'm going to ask you a
5 little further, please.
6 A. Okay.
7 Q. It's been an hour, Dr. Singer.
8 A. Uh-huh. My opinion is that Mr. Harris was exposed to
9 numerous neurotoxic chemicals over his lifetime. I am
10 particularly concerned about and I think -- I'm particularly
11 concerned about the pesticide exposure when Mr. Harris was a
12 child and its deleterious effect on his neurocognitive
13 development. As well, he had further exposures as a child and
14 as an adult, including exposure to cocaine.
15 Q. Okay. Could I ask -- when you talk about numerous
16 exposures, can you list them for me? Because I want to make
17 sure -- I saw your report. I want to make sure I understand
18 it, Doctor.
19 A. Okay.
20 Q. So besides the pesticides, if you will, the crop
21 dusting, the effects of crop dusting -- are those the organo --
22 help me. What do you call them?
23 A. Organophosphates and organochlorines.
24 Q. Thank you. Hang on just a minute. That will be the
25 crop situation. Is that a fair statement? Crop dusting
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1 situation?
2 A. Yes.
3 Q. Okay. That's what -- I just want to make sure. The
4 agriculture exposure as a child. Fair enough?
5 A. Yes.
6 Q. But you listed numerous other exposures. One of those
7 is cocaine, correct?
8 A. Yes.
9 Q. But there is a lot of others in your report. Can you
10 tell me the other exposures that you believe this Defendant has
11 been subjected to?
12 A. The occupational exposure to hydrogen sulfide.
13 Q. Okay. Where was that?
14 A. That was when he worked at the New Gulf Sulphur Plant.
15 Q. Okay.
16 A. Lead -- occupational lead exposure and solvent
17 exposure as a child working at the New Gulf Sulphur Plant.
18 Q. Okay. Thank you.
19 A. His work in the refinery, the Phillips 66 refinery --
20 Q. Okay.
21 A. -- where he was exposed to -- where I have knowledge
22 that he was exposed to welding fumes.
23 Q. Where did that knowledge come from?
24 A. That comes from Mr. Harris.
25 Q. Okay. Thank you.
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1 A. And sandblasting of paint. Exposed to the dust of the
2 sandblasting of paint.
3 Q. Where was that?
4 A. This is while working at Phillips 66 refinery.
5 Q. Okay. Thank you.
6 A. Also at the refinery he had an exposure to
7 something -- and we don't know what it is, and it made him sick
8 for a day -- or a few days.
9 Q. Okay. And is this information from Phillips 66, the
10 sandblasting and that, does that all come from Mr. Harris, the
11 Defendant?
12 A. A lot of the information comes from Mr. Harris.
13 Q. The exposure of what you don't know what it is, some
14 exposure, came from Mr. Harris?
15 A. Yes.
16 Q. Okay. Fair enough. And the welding -- welding fumes
17 is the Phillips plant? Is that accurate?
18 A. Yes. Welding fumes is the Phillips plant.
19 Q. Any other exposures, please? I see pesticide exposure
20 as a youngster, correct, Doctor?
21 A. Yes.
22 Q. I see chemical exposure as an adult. Okay. Besides
23 the Phillips 66 and what you described, any other adult
24 chemical exposure, please?
25 A. Okay. I'm checking my notes.
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1 Q. Thanks, Doctor.
2 A. The only other significant exposures that I found were
3 that to cocaine.
4 Q. Okay. There was some other exposure that you put to
5 food, though. Likely unrelated exposures. That's the
6 beginning of your report. Letter H, food pollution.
7 A. Right.
8 Q. Okay. And what did that consist of?
9 A. I don't think there was any.
10 Q. Okay. All right. When did you visit with Mr. Harris
11 about -- when did you interview Mr. Harris, and when was the
12 first time you met Mr. Harris?
13 A. The first time I met Mr. Harris was when I interviewed
14 him November 27th, 2013.
15 Q. Where was that?
16 A. That was in the county jail.
17 Q. Okay. So you physically traveled to the county jail
18 and interviewed him November 27th, in the last couple weeks?
19 A. Yes.
20 Q. Okay. And how long did you spend with him then?
21 A. All day.
22 Q. Okay. And how about the second time you met with him?
23 A. That was last night.
24 Q. Last night? Okay. How long did you have a chance to
25 spend with him?
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1 A. About an hour.
2 Q. Okay. When you say all day, how many hours the first
3 time, November 27th?
4 A. About seven hours.
5 Q. Thank you. All right. The jail was very
6 accommodating, weren't they?
7 A. Yes.
8 Q. Very polite, courteous over there?
9 A. Yes.
10 Q. Okay. Let me ask you just a couple other questions.
11 Mr. Wooten indicated that you have testified before in other
12 courts, right?
13 A. Yes.
14 Q. And that would be regarding various types of
15 neurotoxicity, correct?
16 A. Yes.
17 Q. Okay. And he asked if your testimony -- if courts had
18 accepted your testimony, correct?
19 A. Yes.
20 Q. Okay. It's true, also, that courts on more than one
21 occasion have excluded your testimony, finding it to not be
22 scientifically reliable. Is that not true, Dr. Singer?
23 A. It's true that my testimony has been excluded.
24 Q. Okay.
25 A. But I'm -- I would not characterize it as
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1 scientifically unreliable.
2 Q. Okay. But courts have excluded it when you were
3 offering scientific testimony. Is that a fair statement?
4 A. It's fair to say that an extreme minority of courts
5 excluded my testimony.
6 Q. Okay. Let's talk about how many occasions that's
7 happened. How many times, Dr. Singer?
8 A. Approximately, five times.
9 Q. Okay. And let's talk about the five times, please.
10 Okay? Some of those have been in federal court. Correct?
11 A. I'm uncertain.
12 Q. Okay. Well, can you tell me the locations that
13 occurred, please, Dr. Singer?
14 A. One was in Virginia.
15 Q. Okay.
16 A. But I'm not sure if that counts because I don't know
17 what happened.
18 Q. We'll talk about that later.
19 A. Okay.
20 Q. So it was excluded in Virginia. Civil suit, correct?
21 A. Actually, I'm not certain what happened in that case.
22 Q. Okay. You know your testimony was excluded, correct?
23 A. Well, I know that the case was dropped and then
24 refiled.
25 Q. Okay. You're aware that a federal court excluded your
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1 testimony in a matter in Virginia. Is that true?
2 A. Yes. They excluded my testimony because I relied on
3 another witness who they excluded.
4 Q. Okay. But your testimony was excluded, correct?
5 A. Yes, but not on the ground of scientific
6 unreliability.
7 Q. My question is it was excluded, correct? Your
8 testimony was excluded, correct?
9 A. Yes.
10 Q. Okay. Let's go a little further. Your testimony has
11 been excluded regarding matters in Texas in the past, correct?
12 A. There was one case in Texas, yes.
13 Q. Oh, by the way, what was the nature of your testimony?
14 What kind of exposure was in Virginia, please?
15 A. I believe it was pesticide exposure.
16 Q. Okay. Does refrigerant gas ring a bell in Virginia?
17 A. Yes.
18 Q. Okay. The time you were -- testified in Texas that it
19 was excluded, what kind of exposure was that?
20 A. I believe it was herbicide.
21 Q. Okay. And that was a federal court, also, correct?
22 A. That was back to 1985. So I think it was, but I don't
23 know for sure.
24 Q. But it was excluded. Your testimony was excluded by a
25 federal court in the 1980's, correct?
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1 A. Well, again, it was excluded. I believe it was
2 excluded, but I don't know what court it was in.
3 Q. Okay. Let's go on to other courts. Your testimony
4 has been excluded in the State of New Mexico, has it not?
5 A. I'm uncertain. I know that the case was dismissed for
6 lack of evidence.
7 Q. Okay.
8 A. And I know I was testifying in that case.
9 Q. Was your testimony regarding electromagnetic
10 hypersensitivity in New Mexico?
11 A. Yes.
12 Q. Okay. And you were not -- you never got to the point
13 where you testified, correct?
14 A. Well, I testified in front of the Judge.
15 Q. Okay.
16 A. And the Judge was the only person hearing the case.
17 There was not a jury.
18 Q. The case was dismissed, correct?
19 A. Yes.
20 Q. Okay. Give me the other two times that you've talked
21 about it being excluded. What other two times was your
22 testimony excluded other than we've discussed here?
23 A. In California.
24 Q. Okay. What was the nature of your testimony in
25 California?
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1 A. It dealt with mold neurotoxicity.
2 Q. Okay. When was that?
3 A. About a year ago.
4 Q. Okay. What location in California?
5 A. Well, the incident took place in Santa Barbara County.
6 Q. Okay. Was that a state court in California, is what
7 I'm asking?
8 A. Yes.
9 Q. So a state court in California excluded your testimony
10 regarding mold neurotoxicity?
11 A. They wouldn't let anyone testify with regard to mold
12 neurotoxicity.
13 Q. Okay.
14 A. They would permit my testimony in neuropsychology, in
15 cognition, and in neurology, but not in mold neurotoxicity.
16 Q. Okay. So as to the mold neurotoxicity your testimony
17 was excluded, correct?
18 A. Yes. They would not permit anyone to testify to mold
19 neurotoxicity.
20 Q. And that included yours, right, Doctor?
21 A. Yes.
22 Q. And let's go on to the last one. The fifth that you
23 can remember. Where was that?
24 A. I'm not recalling.
25 Q. What type of case was that? You testified about five
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1 times. We have four. What's the fifth time?
2 A. I don't know. Remind me.
3 Q. Okay. Well, you testified to five times, so I'm
4 asking you. You don't remember?
5 A. I'm not recalling another.
6 MR. WOOTEN: I'm going to object, Judge. I think
7 he was rounding up or guessing.
8 Q. All right. And so let me ask you this. So what --
9 let me ask this. So what did you base your opinion on
10 regarding the exposure you've testified to, the neurotoxicity,
11 here today on Mr. Harris? What did you base your opinion on,
12 sir?
13 A. I based my opinion on my review of the records, my
14 evaluation of Mr. Harris, Dr. Kasper's records, my review of
15 the scientific literature, my expertise in neuropsychology and
16 neurotoxicology.
17 Q. Okay. Did you ever meet with Dr. Kasper regarding
18 this?
19 A. No.
20 Q. Have you ever met Dr. Kasper?
21 A. I don't know.
22 Q. Okay.
23 MS. YENNE: I'll pass the witness.
24 MR. WOOTEN: Nothing further, Judge.
25 THE COURT: Thank you very much, Dr. Singer. You
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1 may step down.
2 We're continuing on the record. Counsel for the
3 State, counsel for the defense, the Defendant are present.
4 Dr. Singer has left the room.
5 Mr. Wooten, I'll hear your argument.
6 MR. WOOTEN: Judge, we would present him as an
7 expert as a neuropsychologist and also a neurotoxicologist. I
8 believe he's eminently qualified as to either and as to both.
9 He's testified numerous times.
10 The fact that his testimony has been excluded
11 several times I don't think is a bar to him testifying here.
12 And we would also ask if the -- in the Court's ruling -- and I
13 think that Ms. Yenne's questions were appropriate and proper as
14 to this hearing as far as times when his testimony was
15 excluded, but we would also ask the Court to bring up or
16 address the subject of whether she would be able to go into
17 that in front of the jury. I'm not arguing that. I'm just
18 asking if the Court will give us a ruling or at least a motion
19 in limine on that so we can approach.
20 But back to Dr. Singer. I think he's qualified,
21 and we would present him as an expert and ask that his opinions
22 be allowed to be put in front of the jury.
23 THE COURT: Ms. Yenne.
24 MS. YENNE: Judge, he's not qualified as to
25 neurotoxicity. He's not a medical doctor. He's not a
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1 radiologist. He's not capable of reading an MRI. He's going
2 to be talking about physical effects. There is no information
3 that any medical testing from this man was done in any way, nor
4 that he would be competent to express an opinion regarding the
5 same.
6 Counsel asked him if he had testified before in
7 federal and state court. It is a legitimate area of inquiry
8 for the State to bring up the fact that -- and to have an
9 impression that he's testified in federal and state court and
10 that he's never been excluded is the wrong impression. He's
11 been excluded twice in federal court and twice in state court
12 regarding neurotoxicity. And that is very valid, and it's a
13 subject of his testimony here. If the Court chooses to allow
14 this man to testify, certainly it is a very proper area of
15 inquiry regarding whether his testimony was ever been excluded
16 before. It goes to his area of expertise. His testimony in
17 this regard about being excluded is highly suspect, and I am
18 greatly concerned about the information he's placed in the
19 record as to why it was excluded. It's certainly a proper area
20 of inquiry.
21 But we do not believe that this man is qualified.
22 Certainly if the Court considers him to be marginally qualified
23 to express an opinion, that should be limited as to
24 neurotoxicity and the State should certainly, of course, be
25 allowed to have all of the usual manners of cross-examination.
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1 And to try to exclude that in advance would be highly
2 misleading to the jury.
3 THE COURT: Your limitation that you asked for --
4 he's a neuropsychologist and a neurotoxicologist. You say his
5 testimony should be limited to neurotoxicity?
6 MS. YENNE: No. It should be -- the Court should
7 enter some limitations regarding neurotoxicity. He's been
8 excluded in those areas in federal and state court. If the
9 Court chooses to allow that he is minimally competent in
10 neurotoxicology, which by the way, there is no license for,
11 then certainly the areas of inquiry which the State brought up
12 would be legitimate in front of this jury.
13 THE COURT: All right. Mr. Wooten.
14 MR. WOOTEN: Judge, just very briefly, he's
15 testified -- I mean, the Court can do the math; but I'm
16 thinking over a hundred times.
17 Number two, I think it's -- he did testify that
18 he relied on a radiological report. Ms. Yenne brought that out
19 herself. So it's not that there is no medical evidence that he
20 relied on. He can't read an MRI, but he did rely on a report
21 by someone who has every indication is qualified to read an
22 MRI.
23 Lastly, I would say that my objection to her --
24 that would be bringing prior -- other court rulings in front of
25 this jury, which is improper.
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1 And number two, the reason I would ask for a
2 motion in limine is if he had testimony that was barred on
3 refrigerant gas, that doesn't have anything to do with this
4 case. If he had mold testimony barred, it doesn't have
5 anything to do with this case. I think at least to keep a --
6 from a 403 standpoint, that we would have to approach and have
7 a balancing test. And then I think under no circumstances
8 should the State be allowed to present a prior court ruling
9 from some other court, some other place. All we know is the
10 state.
11 Or really -- if we knew the court, it really
12 wouldn't make any difference because that's not this Court.
13 This Court -- that's basically going behind this Court's ruling
14 saying that he's qualified to testify, if this Court does. If
15 this Court say he's qualified in this 705 ruling, what they are
16 doing is going behind this ruling and bringing in another court
17 to say, yeah, but this court said something different. It's
18 almost like it's impeaching this Court's decision, and that's
19 improper and that's why you can't bring other court's ruling
20 into a trial and put them before the jury.
21 MS. YENNE: Judge, may I respond?
22 THE COURT: You may.
23 MS. YENNE: For the purpose of the record -- I
24 can introduce the cases, for purpose of this record, that he's
25 been excluded in; and the Court can make an appropriate
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1 decision whether the topics of his testimony mirror the topics
2 here in cases.
3 THE COURT: Well, do you have copies of them?
4 MS. YENNE: I have copies. I have the Viterbo
5 case. The Firstenburg case. May I get an extra copy real
6 quickly? Judge, let me make an extra quick copy of the other,
7 please. Thank you. We're getting the remaining one, Judge.
8 Certainly, it's the State's position that if
9 you're holding him out as an expert, his qualifications and his
10 prior expertise are subject to impeachment, the topics he's
11 testified on.
12 Judge, I'm going to quickly make that extra copy,
13 if I could?
14 Your Honor, it's, additionally, the State's
15 position that the topics that he's previously testified on that
16 are considered valid topics -- the State is not conceding the
17 neurotoxicity a valid topic. The topics that he's prone to
18 testify to before a court and represent as valid science go to
19 his motivation for compensation, and they should all be allowed
20 as to what this man is willing to testify to.
21 MR. WOOTEN: Judge, if they are going to give the
22 Court cases, do you think we can have those cites?
23 MS. YENNE: Sure. I'll be happy to. Let me get
24 them an extra copy.
25 Judge, for purpose of full disclosure, also,
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1 Mr. Wooten, there's a workers compensation on arbitration that
2 his testimony was excluded, also, regarding the exposure case.
3 THE COURT: Did you give me three opinions?
4 Okay. Thank you.
5 (A short recess was taken.)
6 THE COURT: All right. We're back on the record.
7 The record will reflect counsel for the State, counsel for the
8 defense, the Defendant are present.
9 Mr. Wooten, have you had time to review the
10 cases?
11 MR. WOOTEN: Yes, Judge.
12 THE COURT: Do you want to respond specifically
13 to the Fourth Circuit's opinion?
14 MR. WOOTEN: And that is in Zellers, Judge?
15 THE COURT: That's Zellers.
16 As to any knowledge or testimony as to what
17 levels would have to have been exposed to cause these
18 ill-effects?
19 MR. WOOTEN: I think Ms. Conn would have to
20 respond to that, Judge, because we split these cases up as we
21 looked at them.
22 THE COURT: Oh, okay. All right. Ms. Conn?
23 MR. WOOTEN: I'm sorry. I looked at the other
24 two.
25 THE COURT: Ms. Conn, on Page 14 of the opinion,
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1 I didn't hear any testimony as to his opinion or knowledge as
2 to levels that would be required. Do you know does he have
3 that knowledge?
4 MS. CONN: Dr. Singer?
5 THE COURT: Singer.
6 MR. WOOTEN: Oh. Well, I can respond to that,
7 Judge. I believe he does, Judge. In fact, he has done quite a
8 bit of independent research and brought reports, written
9 reports, on hydrogen sulfide neurotoxicity, which we've given
10 to the State, which is 13 pages. And also toxaphene
11 neurotoxicity, which is 9 pages. He prepared these actual
12 research documents for this case. So I believe that --
13 THE COURT: He is prepared to testify as to that?
14 MR. WOOTEN: Well, I could go ask him, Judge; but
15 I believe so, Judge. But I can't say for sure. I hate to tell
16 the Court something. We didn't go over it, but we do have
17 these research materials. I can talk to him. I can certainly
18 go into the levels that he feels and what he based the levels
19 on.
20 And what I would say, Judge, is in several of
21 these cases -- in fact, in all of these cases, Dr. Singer --
22 the underlying -- that one doctor's diagnosis was found
23 unreliable, as you're talking about in Zellers, and that made
24 his opinion, I guess for that court, unreliable.
25 EMS [sic] testimony, which is electric exposure,
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1 was found to be unreliable in another case.
2 And where did the other case go? There is three.
3 And then, Judge, Tordon 10K or Picloram
4 neurotoxicity in humans was found in the Viterbo case to be
5 unreliable.
6 I could ask -- I mean, if this court wants me to
7 ask about the levels that were found in -- about the levels
8 that were found in this case. But I would respectfully say to
9 the Court that if the Court is saying I read this and this
10 seems like something that y'all should have brought up because
11 I read another case, I think that's great. I mean, that's good
12 of the Judge. But I don't know that this case stands for, out
13 of the Fourth Circuit, that in a case of this magnitude if
14 levels are not brought -- does that make sense? I don't think
15 it's a precedent.
16 Now I think it sounds legitimate, to me, to go
17 into that. I see the Court's concern. I understand it. But I
18 would say I don't think that this case stands for Dr. Cooper
19 being excluded, that he can't answer --
20 MS. YENNE: Dr. Singer.
21 MR. WOOTEN: Dr. Singer. I'm sorry. I don't
22 know where that came from. I'm really at the end of my rope.
23 I promise.
24 Dr. Singer -- I don't think that case stands for
25 precedent that if we can't prove the levels, that Dr. Singer
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1 should be excluded based on that case.
2 Now if the Court were to make that decision on
3 its own, of course the Court can do that. But I just wanted to
4 make that distinction. Would you like me to go talk to
5 Dr. Singer? Or we could bring him back and ask him, Judge.
6 THE COURT: I'm going to go ahead and allow him
7 to testify to the limited basis that he said he's qualified to
8 attest to and to the things he testified to during this 705
9 examination. I think the magnitude of the case would require
10 me to allow that to be brought in. But the defense is entitled
11 to test his qualifications with regard -- I'm sorry. I am
12 looking at you.
13 MS. YENNE: We're to the point where we could
14 swap.
15 THE COURT: You can go into prior cases where he
16 has been found to be not qualified. Because some of this
17 language in these cases is pretty pointed as to going to his
18 qualifications to give toxicology-type opinions.
19 But I will allow him to testify, but I will allow
20 the State to go in on cross-examination to those other issues.
21 MR. WOOTEN: Yes, Judge. And for the record, we
22 would object.
23 THE COURT: I understand, and your objection is
24 overruled.
25 MR. WOOTEN: Okay. I understand, Judge.
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1 THE COURT: All right. Do y'all need 60 seconds?
2 MS. YENNE: Judge, 60 seconds. Thank you.
3 MR. WOOTEN: Judge, for the record, not to argue
4 with your ruling in any way. I'd just like to federalize my
5 objection.
6 THE COURT: You may do that, and then I'll rule
7 on it.
8 MR. WOOTEN: Thank you, Judge.
9 The 4th, 5th, 6th, 8th, 14th Amendments of the
10 United States Constitution; Article 1, Sections 3, 10, 13, 15
11 and 19 of the Texas Constitution. And we would renew our
12 objection based on those.
13 THE COURT: All right. And those objections will
14 be overruled.
15 MR. WOOTEN: Thank you, Judge.
16 (A short recess was taken.)
17 THE COURT: We're on the record. The record will
18 reflect that counsel for the State, counsel for the defense,
19 the Defendant are present. The jury has not entered the room.
20 Mr. Wooten, is there something you wish to put on
21 the record before the jury is brought in?
22 MR. WOOTEN: Yes, Judge. We -- there was a
23 recording of Mr. Anderson that has already been talked about
24 during his testimony, the full recording. We would like to
25 admit that recording, although I don't have my hands on it, as
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1 A. Yes.
2 Q. Okay. That was in the 1980's. Fair enough?
3 Mr. Viterbo was suing Dow Chemical, was he not?
4 A. I am uncertain.
5 Q. Okay.
6 MS. YENNE: May I approach, Judge?
7 THE COURT: You may.
8 Q. Maybe a copy of the case would jog your memory,
9 Doctor. State's Exhibit 232, I'm going to ask you to look at
10 Viterbo versus Dow Chemical. See if this jogs your memory just
11 a minute on the Tordon K?
12 MR. WOOTEN: Judge, I'm going to object. This
13 isn't past recollection recorded. He didn't generate this
14 document. This is improperly refreshing his memory.
15 THE COURT: Are you asking about the facts of the
16 case only?
17 MS. YENNE: Yes.
18 THE COURT: All right. Overruled.
19 A. What am I -- what's the question?
20 Q. Mr. Viterbo was suing Dow Chemical over pesticide
21 exposure, Tordon K, correct?
22 A. Tordon K is an herbicide.
23 Q. Okay. Mr. Viterbo was suing Dow Chemical over Tordon
24 K, an herbicide, right? Exposure?
25 A. Yes.
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1 Q. Okay. You rendered services in that case. Correct?
2 A. Yes.
3 Q. Okay. For Mr. Viterbo's side, correct? For the
4 plaintiff, correct?
5 A. I was hired by the plaintiff.
6 Q. Okay. And you were compensated for those services,
7 correct?
8 A. At least some compensation.
9 Q. Okay. And your scientific testimony was excluded by a
10 federal court in that case, was it not?
11 A. Could I see that document again?
12 Q. Sure.
13 A. The defendant motion for summary judgment was granted.
14 Q. Okay.
15 A. And the Court made an opinion.
16 Q. Okay. The opinion was that your scientific testimony
17 was so lacking in probative value, correct, that it needed to
18 be excluded?
19 A. Could you please return that to me?
20 Q. Sure. State's Exhibit 232, for the purposes of the
21 record, is the Court's finding.
22 MR. WOOTEN: Judge, once again, this is an
23 improper refreshment of recollection. It's not his. She's
24 asking him to read off a document that's not in evidence.
25 THE COURT: I won't allow him to read to the jury
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1 what's there; but to refresh his recollection to answer the
2 question, he can do so.
3 A. The offered expert testimony.
4 Q. Yours was excluded, was it not?
5 A. Yes.
6 Q. Okay. Let's go on to some other times your testimony
7 has been excluded, Doctor. Let me go to last year, 2012. It's
8 been excluded in New Mexico, has it not?
9 A. Yes.
10 Q. Okay. That would be the Firstenburg case.
11 Mr. Firstenburg was suing his neighbor, correct, for
12 electromagnetic sensitivity. He was exposed to electromagnetic
13 forces. He was suing his neighbor, correct?
14 A. Yes.
15 Q. Okay. That was -- he alleged that the neighbor had
16 exposed him to cell phone usage, computer usage and such,
17 correct? Mr. Firstenburg alleged that, did he not, in New
18 Mexico?
19 A. I don't recall computer usage.
20 Q. Okay. Well, what usage was Mr. Firstenburg alleging?
21 A. I -- I need some instruction here because the case is
22 under appeal. I'm not certain that I can discuss it.
23 Q. Okay. The district court in New Mexico excluded your
24 scientific testimony on electromagnetic hypersensitivity, did
25 they not, Doctor, last year?
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1 A. I recall that the case lost on summary judgment.
2 Q. Okay.
3 MS. YENNE: Can I have just a second, Judge?
4 Q. Okay. Just for the purpose of jogging your memory,
5 State's Exhibit 233, can you recognize or remember that the
6 court in New Mexico, the First Judicial District Court, last
7 year, September, 8th -- September, 2012, excluded your expert
8 testimony in the Firstenburg case?
9 A. The defendant's motion to exclude --
10 MR. WOOTEN: Objection to him reading from it.
11 THE COURT: Doctor, don't read. Just use it to
12 refresh your recollection and then answer the question.
13 A. I believe it's yes.
14 Q. Okay. Let me go a little further. Your testimony has
15 also been excluded in the United States Court of Appeals for
16 the Fourth Circuit, a Virginia case, Deborah Zellers versus
17 Rite Aid of Virginia. Correct?
18 A. Yes.
19 Q. Okay. That case she was suing -- Ms. Zellers was
20 suing for refrigerant exposure. Is that correct?
21 A. Yes.
22 Q. Okay. Suing her former employer. Is that a fair
23 statement?
24 A. Yes.
25 Q. Okay. You provided services to Ms. Zellers. Is that
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1 correct?
2 A. Yes.
3 Q. Okay. And you took a position that Ms. Zellers had a
4 nervous system dysfunction from neurotoxicity consistent with
5 and caused by poisoning with refrigerant containing
6 fluorocarbons. Correct?
7 A. Yes.
8 Q. And your testimony was excluded, was it not?
9 A. Yes.
10 Q. Okay. You've also had your testimony excluded in
11 California?
12 A. Yes.
13 Q. That's regarding toxic mold exposure. Neurotoxicity
14 from mold exposure, correct?
15 A. Yes.
16 Q. And you, likewise, have had your testimony excluded in
17 worker's compensation cases. Remember the Dust Off case?
18 A. No.
19 Q. Okay.
20 MS. YENNE: I'll pass the witness.
21 THE COURT: Mr. Wooten.
22 MR. WOOTEN: Nothing further, Judge.
23 THE COURT: Thank you very much, Dr. Singer. You
24 may step down.
25 The Rule has been invoked. You understand the
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1 jacket to Kirk Coleman. Well, we know -- we watched that motel
2 video. You watched it. We played it for you. He had on a
3 camouflage jacket. You heard it in the 9-1-1 call. Darla said
4 camouflage jacket. We know he had on a camouflage jacket. He
5 tells Kirk Coleman it was a blue jacket. ILA 30 -- Local 30 on
6 it. So watch that.
7 Let's talk about his childhood or poor
8 upbringing. Lots of people grew up poor. Lots of people had a
9 bad childhood. But let's look at what the evidence has shown
10 us. Look at what Dr. Farrell says about his bad childhood, and
11 then look at Dr. Kasper's CTQ. They are in dispute. They are
12 in conflict. One is saying he had a really bad childhood. The
13 other one is saying that it really wasn't that bad. And
14 Dr. Kasper got her answers from the Defendant. Then look at --
15 I mean, Mack Selman. He came in here and he testified long
16 before the Defendant was charged with Capital Murder when he
17 was on probation, he talked about how he would not change
18 anything about his childhood. Does that sound like someone who
19 had a bad childhood? Does that sound like something that's
20 mitigating? No.
21 Exposure to pesticides and toxic chemicals.
22 Let's talk about that. Where is the medical proof for any of
23 this? We've heard from Dr. Kasper and Dr. Singer. Neither one
24 of them are medical doctors. And it was Dr. Singer who is
25 saying that he was exposed to pesticides and exposed to toxic
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1 chemicals. No medical evidence to support it. He spent a
2 total of eight hours with the Defendant before he formed this
3 opinion that he had been exposed to these things. Go back and
4 look at the book-in sheets and the medical from the jail. The
5 only mention of any kind of an injury is an injury to a foot or
6 ankle and an injury to a knee. There is nothing in there about
7 being exposed to pesticides as a child. There is nothing in
8 there about being exposed to toxic chemicals, to sandblasting,
9 to any of this. Nothing in there to support that.
10 And how -- if you even thought that that was, how
11 does that lessen his blame for what he did? He stabbed an
12 85-year-old man in his home eight times. He was minding his
13 own business. He stabbed Darla Wilcox 24 times, who all she
14 did was answer the door to the doorbell. I mean, how does any
15 of this lessen his blame?
16 Cocaine usage. Well, we know that he used
17 cocaine. He used crack cocaine because we've had witnesses
18 that came in and said, oh, he used cocaine. Crack cocaine. I
19 smoked crack cocaine with him. Amy Spears. Jean Rhodes. So
20 we know he did use cocaine. How does voluntarily using drugs
21 lessen your blame for a crime as brutal as the one that he
22 committed? How does that lessen your blame? It doesn't. I
23 submit it doesn't.
24 Good worker at the Port. They brought you a lot
25 of the -- the defense brought you a lot of witnesses who said
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1 incompetent. Alton Murphy, who stabs a woman 20 times in
2 Florida is insane. That's her previous testimony. Clifford
3 Davis stabbed his elderly 77-year-old grandfather, strangled
4 his mother, did other things to his mother; and she said he had
5 a borderline personality disorder and bipolar. I would like to
6 know what Dr. Kasper considers more than borderline. Somebody
7 stabbing a 77-year-old man to death, strangling his mother is
8 not just borderline. It's way out there. But she did all this
9 for money.
10 She ordered an MRI and she never read it, didn't
11 know where it came and wasn't qualified to read it. And she
12 testified there is other psychiatrists and doctors in the area
13 that could have interpreted it.
14 And, you know, I guess it takes a lot of nerve
15 when you're paid that much as Dr. Singer to come in and testify
16 to what these guys are testifying to. And so I call what we
17 used to call it in the old days, snake oil salesmen. They used
18 to sell you snake oil to cure all your ailments. And it was
19 just a fraud. Well, now we have fancy forms of strange snake
20 oil. They're called neuropsychologists. And, you know,
21 they're called neuropsychologists because you can't find any
22 self-respecting medical doctor that would have the nerve to
23 come in and testify to this.
24 But I found it interesting that Dr. Singer, he
25 had only met the Defendant 15 days ago. Really? But how can
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1 you ring up like $30,000 worth of bills when you only met the
2 Defendant 15 days ago? You know? His testimony has been
3 excluded in so many courts he just about can't count. And now
4 he says he's only called to testify one or two times. Yes,
5 because his science is not reliable. He checked out nothing in
6 this case. This is a guy who has the nerve to call scientific
7 evidence cell phone exposure on a lawsuit. When one neighbor
8 is suing another neighbor. This man will find a toxin anywhere
9 for money. He's not a medical doctor. He's not a neurologist.
10 He's not a psychiatrist. And, you know, he didn't even speak
11 to any of the chemical companies. And look at all the records
12 he did not review. Do you consider that thorough? No.
13 So let me go a little further. Evidence that a
14 juror might regard as reducing the Defendant's moral
15 blameworthiness. There is none. You know, you have some
16 alleged drug addiction, alleged mitigating evidence. We're
17 going to finish up. Alleged drug addiction. There is a lot of
18 drug usage but, you know, it's funny. When they asked, I
19 believe, Marcus Lincoln is he a drug addict, he paused. And he
20 knows him very well. This man uses cocaine when he wants to
21 use it.
22 Where is the toxic chemical exposure? Did you
23 ever hear one person that said the Defendant was exposed to
24 toxic chemicals who actually saw it? Even his sister just said
25 he used to come in with dirty clothes from the fields; and that
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NO. 67063
THE STATE OF TEXAS § IN THE DISTRICT COURT OF
vs. § BRAZORIA COUNTY, TEXAS
JAMES HARRIS, JR. § 149TH JUDICIAL DISTRICT
CHARGE OF THE COURT
MEMBERS OF THE JURY:
The defendant, JAMES HARRIS, JR., has entered a plea of "GUlLTY" to the
offense of CAPITAL MURDER, as alleged in the indictment. This offense is alleged to
have been committed in Brazoria County, Texas, on or about the 14TH day of January,
2012.
To this charge the defendant has pleaded "GUlLTY" and he has persisted in
entering such plea notwithstanding the Court, as required by law, had admonished him of
the consequences of the same; and it plainly appearing to the Court that the defendant is
competent and sane and that he is not influenced to make this plea by any consideration
of fear, nor by a persuasive or delusive hope of pardon prompting him to confess his guilt,
said plea is by the Court received.
You are therefore instructed to find the defendant guilty of CAPITAL MURDER, as
charged in the indictment.
The mandatory punishment for the offense of Capital Murder of which the
defendant has pled guilty is by imprisonment in the Texas Department of Criminal Justice,
Institutional Division, for life without parole or death.
In deliberating on the issues submitted you shall consider all evidence admitted at
the guilt or innocence stage and the punishment stage, including evidence of the
1
.1387.6.
01/28/2015
James Harris Appendix Page 000051 10
1 first page, Your Honor.
2 THE COURT: All right.
3 MS. CONN: Starting with, To this charge the
4 Defendant has pleaded guilty, et cetera.
5 MS. YENNE: Yes.
6 MS. CONN: There is a semicolon after the
7 consequences of the same, and I would ask that the Court stop
8 the paragraph at that semicolon. The jury is not to decide
9 competence or sanity. That has not been an issue in the case.
10 They are not supposed to consider any undue influence regarding
11 the Defendant's plea. The word "pardon" is prejudicial, and
12 should not be considered by the jury. All of that second part
13 of that paragraph and/or sentence is prejudicial and
14 inappropriate for the jury to consider. It's a comment on the
15 weight of the evidence. It's confusing. It is not neutral,
16 and not principle as required by Gregg and Tuilaepa versus
17 California.
18 THE COURT: All right. Overrule that objection.
19 MS. CONN: All right. And the very last line of
20 this Page 1, "in deliberating on the issues submitted you
21 should consider," we did talk about that that language does
22 track 37.071; but since he pled guilty, Your Honor, and the
23 statute does not consider or give a special instruction in the
24 event that the Defendant pleads guilty -- the statute was
25 written for a person in the normal course of events where there
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1 doing very good about giving verbal responses. Some people
2 give me nods of the head or shakes, but you've been doing very
3 good. If you'd just continue that because Mrs. Friedrichs, the
4 court reporter, is taking down all these proceedings and it's
5 just much easier for her to give a verbal -- record a verbal
6 response than a shake of the head or an uh-huh or something
7 like that. Will you do that for me?
8 VENIRE PERSON: Yes.
9 THE COURT: Thank you very much.
10 All right. Ms. Yenne, you may proceed.
11 BRENDA WOODS,
12 having been first duly sworn, testified as follows:
13 VOIR DIRE DIRECT EXAMINATION
14 BY MS. YENNE:
15 Q. Good morning, Ms. Woods. How are you?
16 A. Good morning. I'm fine.
17 Q. My name is Jeri Yenne, and I'm the District Attorney
18 in Brazoria County. Mary Aldous is my first assistant. She
19 and I represent the State of Texas.
20 Jay Wooten and Mary Conn represent the Defendant,
21 James Harris, Jr. Okay?
22 As the Judge told you, this is Individual Voir
23 Dire; and it's the only time lawyers have a chance to
24 individually ask potential jurors questions because it's the
25 nature of the charge of Capital Murder with a penalty range of
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1 life without parole or the death penalty. Okay? That would be
2 why we have a chance to interview you individually. Okay?
3 A. Okay.
4 Q. So the only time -- the only answer that we want is
5 your honest answer. We're trying to pick a fair and impartial
6 jury for the State and the defense. Okay?
7 And as the Judge told you, the only wrong answer
8 would be one that wouldn't be what you honestly feel. So I'm
9 going to pick your brain and ask you about some legal
10 principles and things to see if you can honestly follow the
11 law. Some people say that they can in certain circumstances,
12 some they can't. Okay? And there are no right or wrong
13 answers.
14 MS. YENNE: May I approach, Judge?
15 Q. I'm going to pick your brain just a little bit,
16 though. I'm going to hand your questionnaire to you, if I can.
17 A. Okay.
18 Q. And the court reporter is taking down everything you
19 have to say, so you might have to talk just a little louder.
20 A. Okay.
21 Q. Thank you.
22 You're a benefits manager?
23 A. Yes.
24 Q. Okay. How big an organization?
25 A. We have about 370 employees and over 2,000 volunteers.
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1 Q. Wow. Human resources is becoming a complicated area
2 these days, is it not?
3 A. It is.
4 Q. In the last 10 years, even at the County, I have seen
5 it become more and more complicated. Is that a fair
6 assessment?
7 A. That is fair.
8 Q. Do you navigate a lot of things? I notice that you
9 went to some FMLA conferences and stuff.
10 A. Health care reform has made my job more complicated
11 and complex.
12 Q. And probably adds an additional full-time job.
13 A. It is a full-time job.
14 Q. Just that aspect?
15 A. Right. The compliance.
16 Q. Wow. One of the things I noticed from your
17 questionnaire that -- and I want to make sure I understand.
18 You are in favor, at times, of the death penalty for certain
19 circumstances?
20 A. Yes, I am.
21 Q. Okay. So let me go a little further. I wanted to
22 pick your brain on a couple questions first, and then I'm going
23 to launch into a bigger presentation. But some of the things
24 that you said I found interesting, so I want to pick your brain
25 just a bit.
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1 Page 16. Could you turn to page 16, Number 91?
2 Are you there?
3 A. Yes, I am.
4 Q. Do you believe the type of victim or status of a
5 victim should affect the punishment in a case?
6 You had indicated, Yes; and you wrote something
7 that I wanted to pick your brain about. Why or why not? "If
8 you're dealing with a minor or disabled person or senior
9 citizen, it should affect the punishment."
10 A. Yes.
11 Q. Okay. Can you tell me your views on that a little
12 bit? Do you feel that the individuals that you listed are more
13 unable to defend themselves?
14 A. Yeah. That is my belief, that they cannot defend
15 themselves properly. You know, when you're dealing with a
16 small child, a disabled person, they just don't have the
17 strength as an ordinary person would have. So that's --
18 Q. Disabled senior citizen, also?
19 A. Disabled senior citizens, also.
20 Q. Okay. In your mind is that something that you would
21 factor in if they were a victim, a more defenseless victim?
22 A. Yes.
23 Q. Okay. One of the things I noted on page 15 -- could
24 you go back? I'm going to stay in the same area a little bit.
25 You had put under Number 82: Do you feel that
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1 prison serves the public in rehabilitating inmates?
2 And you had put, No. Correct?
3 A. That is correct.
4 Q. Okay. Is that your belief today? Because, you know,
5 we threw a bunch of questionnaires at about 200 people,
6 Ms. Woods; and they had to answer questions without -- let me
7 put it this way. We handed them to people cold; and there are
8 times when people say, well, you know, on reflecting on that, I
9 have a different view.
10 But you had put, "I don't think so because they
11 tend to repeat similar crimes, in my opinion."
12 A. That is correct.
13 Q. Okay. So when someone continues to repeat crimes, is
14 that something that you think is significant that you will take
15 note of in sentencing?
16 A. Yes, I would.
17 Q. Okay. You also put, basically, on Number 84: What
18 are your feelings in general about the criminal justice system?
19 You said, I do believe that it is a fair system.
20 A. That's correct.
21 Q. But it said: What would you change about the system
22 if you could?
23 You put, The cost to the system.
24 Now I'm smiling because you are a benefits
25 manager. Tell me how you would change the cost to the system.
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1 Just give me your perspective on that.
2 A. My perspective would be instead of having a person in
3 prison for a long time, that you can try some alternative way
4 to rehab them to keep the cost down.
5 Q. Okay. That's a fair statement.
6 A. You know, if they are not a violent criminal, you
7 know, you might, you know, let them loose, you know, and do --
8 Q. Drug rehab?
9 A. Yeah, something like that.
10 Q. Okay. Do you have a different view for violent
11 criminals?
12 A. Yeah. That would be totally different.
13 Q. Okay. And let's go a little further. If you go to
14 page 19 of your questionnaire, it says -- we're talking about
15 if you were on a jury to sentence a defendant who has already
16 been convicted of Capital Murder. If the law gives you a
17 choice of death or life in prison without parole, you checked,
18 I would consider all the penalties provided by law and the
19 facts and circumstances of the particular case.
20 A. That's correct.
21 Q. And that's your view today?
22 A. That's my view today.
23 Q. Okay. And the death penalty would, in your mind, also
24 be one of the those appropriate considerations one way or the
25 other?
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1 A. That is correct.
2 Q. Okay. Let me go a little further. Can you go to page
3 21 for a minute?
4 And I -- you know what? We -- it's hard for
5 anybody to answer these questions because they are pretty black
6 and white to me. There is lots of times you'd like probably an
7 in between to agree or disagree. You know what I'm saying?
8 But the jurors -- on page 21 you had put, The
9 death penalty is sometimes more compassionate than life without
10 parole. You had agreed with that?
11 A. I agree with that.
12 Q. So tell me your perspective on that. When would you
13 think it would be?
14 A. In violent crimes.
15 Q. Okay. Also can you go back to page 20 and Number 109
16 on the agree or disagree? You believe that capital punishment
17 is absolutely justified at times?
18 A. I do agree with that.
19 Q. Okay. And by capital punishment I'm referring to the
20 death penalty. Was that what your thought was? I wanted to
21 make sure that I understood you.
22 A. Yes.
23 Q. Okay. And let me go a little further. Now I notice
24 that you worked for Catholic Charities?
25 A. Yes.
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1 Q. That's a large organization as you've described it. I
2 don't want to pick your brain too much.
3 And by the way, Mr. Wooten, Mr. Aldous, Ms. Conn,
4 myself, I wouldn't want to be in your spot there. Let me put
5 it this way. I respect our potential jurors because we are
6 picking your brains, given the nature of the case.
7 Could I ask you -- but you put in your
8 questionnaire that you did not attend church.
9 A. That is correct.
10 Q. Okay. Do you have a religious belief? Did you attend
11 church? Because I know you work for Catholic Charities, so I'm
12 trying to pick what yours is.
13 A. 2005 I stopped going to church. I was a member of a
14 Baptist church at that time, and since then I just stopped
15 going.
16 Q. Okay. All right. Fair enough.
17 Also on page 16 of 30 -- by the way, I also
18 noticed that you -- do you like to sew?
19 A. I do.
20 Q. That's a lost art and -- becoming a lost art, and I so
21 appreciate it. One of the things I've always wanted to do if I
22 ever had the opportunity was actually get good at sewing. I
23 actually sewed my sock to a skirt one time I was wearing when I
24 was mending a sock, and I don't think sewing was in my future.
25 When I mended that sock and it was attached to the skirt, I
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1 know that sewing was not going to be what I was going to be
2 doing for a living.
3 And you also said you watched the Antiques
4 Roadshow?
5 A. Yes.
6 Q. Do you have -- just a curiosity question. Do you have
7 any antique sewing machines, like the old Singers? I have one
8 at home.
9 A. Well, I have a Kenmore that's --
10 Q. Antique?
11 A. Over 30. Let's see. It's over 35 years old.
12 Q. Okay. So do you actually sew some of your own
13 clothes?
14 A. Yes, I do.
15 Q. Wow. Okay. Do you -- can you still find patterns
16 somewhere?
17 A. I custom make my patterns.
18 Q. Wow. I notice that on page 16, Number 88: Should
19 people accused of murder be treated differently than people
20 accused of other crimes? And you feel those should be harsher
21 sentences?
22 A. Yes.
23 Q. Okay. One of the questions -- also on Question No. 65
24 on page 12, if I can, and then I'm going to launch into -- it
25 said: What do you think -- Question No. 65 -- are the reasons
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1 that people commit most of the violent crimes in our society?
2 And you put, The personal choices they make?
3 A. That is correct.
4 Q. Okay. Is that still your belief today?
5 A. It is my belief.
6 Q. Okay. I probably agree with that belief.
7 Okay. Have you ever at any time been opposed to
8 the death penalty, or have you always thought of it as an
9 appropriate punishment if the circumstance fits?
10 A. If the circumstance fits.
11 Q. Okay. Let me go a little further. There was one
12 concern that you had if you were selected as a juror. Page 28.
13 I wanted you to expound on that just a little bit. It said,
14 Number 153: What would be your greatest concern if you were to
15 be selected as a juror in a capital case?
16 You put, Media stalking and my family privacy.
17 A. That is correct.
18 Q. Okay. Can you give me a little bit of perspective on
19 that, please?
20 A. I would not want the media to approach me. As far as
21 my family, for them to have privacy because they work and go to
22 school. You know, I just wouldn't want any attention drawn to
23 them or myself.
24 Q. It seems like these days there is almost no privacy.
25 A. Right.
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1 Q. But lucky that I'm not really on the internet much
2 because as one of my family members says, you can't get out of
3 that cyber world once you're in it, it seems like.
4 A. Right.
5 Q. So I've chosen not to get in, Ms. Woods.
6 A. Uh-huh.
7 Q. I may have a few other questions about your
8 questionnaire when I finish up. Okay?
9 So this is the State of Texas versus James
10 Harris, Jr.; and the charge is Capital Murder. Okay? It
11 alleges on or about the 14th day of January, 2012, in Brazoria
12 County, Texas, the Defendant did then and there intentionally
13 cause the death of an individual, to-wit: Alton Wilcox, by
14 stabbing Alton Wilcox with a knife, and the Defendant was then
15 and there in the course of committing or attempting to commit
16 the offense of Robbery of Darla Wilcox. Okay?
17 It also alleges on or about the 14th day of
18 January, 2012, in Brazoria County, Texas, the Defendant, did
19 intentionally cause the death of an individual, Alton Wilcox,
20 by stabbing Alton Wilcox with a knife, and the Defendant was
21 then and there in the course of committing or attempting to
22 commit the offense of Burglary of a Habitation owned by Darla
23 Wilcox.
24 Also, on or about the 14th day of January, 2012,
25 before the indictment was presented, the Defendant
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1 intentionally caused the death of Alton Wilcox by stabbing
2 Alton Wilcox with a knife, and the Defendant was then and there
3 in the course of committing or attempting to commit the offense
4 of Burglary of a Habitation owned by Alton Wilcox. Okay?
5 It's one charge of Capital Murder but different
6 ways to commit it, during the course of burglary or during the
7 course of robbery. Okay?
8 A. Okay.
9 Q. All right. Now let me tell you what murder is.
10 Murder is intentionally causing the death of an individual,
11 Ms. Woods. No justification, no excuse, no self-defense, no
12 defending other people, no defending property, no insanity, no
13 mental health issue. Cold-blooded I intended to kill them.
14 Let's say a neighbor gets mad at another
15 neighbor, okay, and decides they're going to go kill them.
16 They get a gun, they approach them on the street, and they
17 shoot them to death. They intended the result. Cold-blooded,
18 non-justified killing. Okay?
19 A. Okay.
20 Q. I just want to give you that, all right, because some
21 people ask about self-defense. The definition of murder is non
22 justified.
23 So let's go a little further. That's regular
24 murder. What raises it up to Capital Murder? I call it --
25 it's murder plus. Capital Murder is murder plus something else
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1 because it raises it to the potential for the death penalty.
2 And so what raises it up? Capital Murder could
3 be intentionally killing a police officer in the line of duty,
4 knowing they are a police officer. Intentionally killing a
5 child under the age of 10. Intentionally killing more than one
6 person during the same criminal transaction. I walk into a
7 convenience store and I start shooting people up and I want to
8 kill them, more than one person. Intentional murder for hire.
9 Somebody hires somebody to kill somebody else intentionally.
10 Or there is this kind of Capital Murder. The
11 person intentionally commits murder in the course of committing
12 or attempting to commit kidnapping, burglary, robbery,
13 aggravated sexual assault, arson, obstruction or retaliation,
14 or terroristic threat. Okay?
15 A. Okay.
16 Q. So remember what raised that intentional killing up to
17 Capital Murder was it was during the course -- in the
18 indictment, as alleged -- of a burglary or robbery. Okay?
19 A. Okay.
20 Q. All right. Let's go a little further. And as I said,
21 the person acts intentionally or with intent with respect to a
22 result of his conduct when it is his conscious objective or
23 desire to cause the result. Cause the death. Okay?
24 A. Okay.
25 Q. All right. Let me go a little further. The
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1 prosecution has the burden of proving the Defendant guilty and
2 it must do so by proving each and every element of the offense
3 beyond a reasonable doubt. It is not required that the
4 prosecution prove guilt beyond all possible doubt. Okay? It
5 is required that the prosecution's proof excludes all
6 reasonable doubt concerning the Defendant's guilt. Okay?
7 A. Okay.
8 Q. So my question for you is could you follow that
9 instruction?
10 A. Yes, I can.
11 Q. Could you hold me to my burden of beyond a reasonable
12 doubt?
13 A. Yes.
14 Q. Oh, I noticed in your questionnaire you have a
15 brother-in-law in -- is it law enforcement?
16 A. Yes.
17 Q. Okay. Where does your brother-in-law work?
18 A. The Harris County Adult Probation Department in
19 downtown Houston.
20 Q. How long has he been working there?
21 A. He retired out of the military. About 17, 18 years I
22 would say.
23 Q. Okay. You also have relatives that have been in the
24 military?
25 A. Yes.
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1 Q. Did your brother-in-law retire from the military?
2 A. Yes, he did.
3 Q. So he's a retired vet?
4 A. Yes.
5 Q. Was he in the military like 20 years or something?
6 A. 23 years.
7 Q. Okay. Do you believe that as a veteran we should have
8 respect for our veterans?
9 A. Yes.
10 Q. They hold a special status in our society?
11 A. Yes.
12 Q. Okay. One other question on your questionnaire.
13 Before I keep going, I want to double-check something. I want
14 to catch your true feelings. Okay?
15 On the agree or disagree section just a couple
16 questions, and then I'm going to launch into it a little
17 further. On page 20 you put, We must have capital punishment
18 for some crimes. You agreed with that.
19 A. Yes.
20 Q. Okay. You still agree with that today?
21 A. Yes, I do.
22 Q. Okay. And on page 21 you also put, Capital punishment
23 is just and necessary. You agreed with that.
24 A. Yes.
25 Q. Okay. And that meaning the death penalty, right?
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1 A. Yes.
2 Q. There is one I was going to ask you about. Capital
3 punishment is justified only for premeditated murder. You
4 agreed with that.
5 A. Yes, I did.
6 Q. Okay. Let me ask this. If somebody formed an intent
7 on the spot to kill somebody, they flew into a rage in the
8 course of a burglary or robbery or a kidnapping or something
9 like that, would you believe that capital punishment were
10 justified for that, the death penalty?
11 A. Yes, I would.
12 Q. Okay. So let's go a little further from beyond a
13 reasonable doubt. The State is required to prove to you the
14 elements alleged in the indictment. You know, the intentional
15 killing of Alton Wilcox during the course of burglary or
16 robbery. Okay?
17 A. Okay.
18 Q. There will always be inconsistencies, Ms. Woods, in
19 any case.
20 A. Okay.
21 Q. Let me give you an example. Pretend there is a car
22 wreck outside the courthouse. Okay? The guy is charged with
23 running a red light. Ten people saw him do it. He admits he
24 did it. He's charged with running a red light, and I prove to
25 you beyond a reasonable doubt he ran the red light. There will
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1 always be people -- let's say some of the witnesses -- they all
2 agree that he ran the red light. Okay?
3 A. Okay.
4 Q. But some of the witnesses -- we used to have watches.
5 We don't have watches anymore -- they disagree on the time.
6 Was it 3:20 or 3:30? Okay? Was it drizzling or misting? Am I
7 making sense?
8 A. Yes.
9 Q. There is always going to be -- human beings are always
10 going to have -- there is going to be inconsistencies in any
11 case. They may not go to the elements of what's alleged.
12 Okay?
13 A. Okay.
14 Q. All right. Let me go a little further. Levels of
15 burden of proof. You said you could hold me to beyond a
16 reasonable doubt. So let me go over that.
17 Now the lowest level of burden of proof is
18 preponderance of the evidence. Means the greater weight and
19 degree of credible evidence. Civil cases seeking money or
20 damages. That's kind of like just tipping the scales. When
21 somebody sues somebody else, they just have to tip those
22 scales. Okay?
23 A. Okay.
24 Q. Clear and convincing evidence is the next highest
25 burden of proof in the civil system. It's that measure or
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1 degree of proof that produces a firm belief or conviction that
2 the allegations sought to be established are true. Okay?
3 That's a higher burden. CPS is trying to take your kid away.
4 Okay?
5 A. Okay.
6 Q. And that should be a higher burden for that, shouldn't
7 it?
8 A. Yes.
9 Q. Than a car accident?
10 And then there is beyond a reasonable doubt.
11 That's the highest burden of proof, criminal burden of proof.
12 Okay?
13 A. Okay.
14 Q. There is no definition, though. Isn't that
15 interesting? The highest burden of proof has no definition.
16 But would you agree with me that beyond a reasonable doubt is
17 higher than those two?
18 A. Yes.
19 Q. Okay. Let me go a little further. All persons are
20 presumed to be innocent and no person may be convicted unless
21 each element of an offense is proved beyond a reasonable doubt.
22 The fact that a defendant has been arrested, confined, or
23 indicted for or otherwise charged with an offense gives rise to
24 no inference of guilt at his trial. Okay?
25 A. Okay.
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1 Q. So as he sits here today, can you presume Mr. Harris
2 to be innocent of Capital Murder?
3 A. Yes.
4 Q. Okay. So you can follow that instruction?
5 A. Yes, I can.
6 Q. Okay. Let me go a little further. The Defendant
7 never has a burden of proof. The law does not require a
8 defendant to prove his innocence or produce any evidence at
9 all.
10 Some people say, oh, I wish the defendant would
11 have brought me some witnesses. No defendant in any criminal
12 case has to produce any evidence. Okay?
13 A. Okay.
14 Q. Okay. So could you follow that instruction?
15 A. Yes.
16 Q. Okay. Now if any of us were accused of a crime, we
17 have a Fifth Amendment privilege not to testify. In other
18 words, against self-incrimination.
19 People say, well, if it was me, I'd have to talk.
20 I'd have to say something. But every defendant, no matter what
21 they are charged with, a misdemeanor or a felony -- or if you
22 or I were accused of something, we have a right, a Fifth
23 Amendment right, not to testify or provide any information
24 against ourselves. So every defendant in any criminal case has
25 a right not to testify. Okay? I never know whether someone is
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1 going to testify or not.
2 Can you agree with me that sometimes people are
3 better off before they open their mouth, Ms. Woods?
4 A. Yes.
5 Q. Okay.
6 A. I can agree with you on that.
7 Q. Okay. Let me be honest with you. I bet as a benefits
8 manager they would be better off before they open their mouth.
9 A. Yes.
10 Q. The things you probably see in human resources are
11 probably very similar to law enforcement.
12 A. Yes.
13 Q. Let me ask you a question. Just a curiosity question.
14 Do some of the things you see in human resources over the last
15 10 or 15 years or maybe 5 -- I'm going to say 5 to 10 years,
16 are you seeing things from employees that you thought you would
17 never see?
18 A. Yes.
19 Q. Taking advantage of situations that you thought you
20 would never see?
21 A. Yes.
22 Q. Okay. It's disappointing, isn't it?
23 A. Very.
24 Q. Very. Okay. I've had the same experience.
25 So can you follow that instruction that every
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1 defendant in any criminal case has a right not to testify and
2 you cannot consider it for any reason?
3 A. Yes.
4 Q. Okay. Now if you had to vote right now, you would
5 have to vote not guilty because you haven't heard any evidence
6 yet, right?
7 A. Correct.
8 Q. So let me ask you this. I have the burden to prove to
9 you beyond a reasonable doubt the elements in the indictment.
10 Okay? Let's say I was having a bad week and I didn't do it,
11 Ms. Woods. Okay? And I just fell on my face. I forgot to
12 prove to you the county it happened in or during the course of
13 burglary or robbery. I mean, it's my job to prove it to you.
14 You know? Could you find the Defendant not guilty of Capital
15 Murder if I didn't prove to you beyond a reasonable doubt the
16 elements of Capital Murder?
17 A. Yes.
18 Q. If I did prove to you beyond a reasonable doubt the
19 elements of Capital Murder, could you find the Defendant
20 guilty?
21 A. Yes.
22 Q. Okay. Now the indictment alleges one charge of
23 Capital Murder of victim Alton Wilcox with alternate methods of
24 committing the same offense, by robbery or by burglary. As
25 long as the jury unanimously agrees beyond a reasonable doubt
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1 that the elements of Capital Murder are met, the jury does not
2 need to agree unanimously on which manner and means. As long
3 as I showed you that he intentionally caused the death of Alton
4 Wilcox by stabbing him with a knife, six of the jury can agree
5 that it was in the course of burglary and six of the jury can
6 agree that it was during the course of robbery. Am I making
7 sense?
8 A. Yes.
9 Q. Okay. Direct evidence. If you sat on a jury, you
10 would get evidence -- certain types of evidence. Direct
11 evidence is evidence that directly demonstrates the ultimate
12 fact to be proven. Eyewitness testimony, video of a crime,
13 confession. Okay?
14 A. Okay.
15 Q. Those are some examples.
16 Now I hate this definition, but this is what it
17 is. Circumstantial evidence. Evidence that is direct proof of
18 a secondary fact which, by logical inference, demonstrates the
19 ultimate fact to be proven.
20 Let me give you an example. There's a child by
21 the pool. Actually, there is a little 5-year-old little boy.
22 He wants to go swimming. He's got a backyard pool. His
23 parents say not right now. You can go later.
24 They go back to their household work. The next
25 thing you hear is the pitter-patter of little feet going down
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1 the stairs, the back door opening, they hear a big splash.
2 Parents go outside and the little boy is in a lawn chair with a
3 swimsuit dripping wet. Well, they can figure that he went in
4 the pool, right?
5 A. Right.
6 Q. Even though they didn't witness it.
7 I'm going to give you another example from my
8 childhood. You and I are probably in the age range where you
9 remember St. Joseph's baby aspirin?
10 A. Yes.
11 Q. Okay. And in the old days they would give it to kids
12 when they had a headache or something. Now you're never
13 supposed to give a child aspirin. Times have changed. You're
14 supposed to get it if you're old now for a heart attack or
15 something.
16 But anyway, we had St. Joseph's baby aspirin at
17 the house. My mother had several bottles on top of the
18 refrigerator, three bottles. She was sick, and she would check
19 on us every 15 minutes. She would set the timer, and she would
20 get up. She would listen while we were playing with Play-Doh.
21 I was 4, my brother was 3.
22 Well, when she went back to lay down, my brother
23 looked at me and said I'm hungry. We got on the stool, got on
24 the refrigerator, got the baby aspirin. We ate three bottles
25 of St. Joseph's baby aspirin. When my mother got up -- we did
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1 that in like 10 minutes, too. We loved it. It was orange
2 tasting candy.
3 My mom got up and she saw the aspirin on the
4 table. She saw the orange on our face. She saw the cotton all
5 over and she said who ate these aspirin? My brother and I told
6 my mother the cat ate the aspirin. Okay? My mother knew the
7 cat did not eat the aspirin, and she had to call my father to
8 come back and drive us to the hospital to have all of our
9 stomachs pumped. So my brother and I, our stomachs were
10 pumped.
11 She had to make a decision on what she did not
12 personally witness. Am I making sense?
13 A. Yes.
14 Q. Okay. So that's the best example of circumstantial
15 evidence.
16 Now my question for you is if the State proved to
17 you beyond a reasonable doubt the elements of the offense, can
18 you convict someone of Capital Murder based on circumstantial
19 evidence?
20 A. Yes.
21 Q. Okay. Now crimes are not going to all be committed in
22 the same way, are they, Ms. Woods?
23 A. No.
24 Q. Okay. Some crimes are going to be committed in front
25 of no witnesses. Some crimes are going to be committed in
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1 front of an entire baseball stadium of people. Okay?
2 A. Okay.
3 Q. And some are going to be on video. Some are not.
4 Some are only going to be committed in front of one eyewitness.
5 If I prove to you -- if you were a juror on a
6 Capital Murder case and there was an eyewitness testifying and
7 that eyewitness' testimony established all of the elements of
8 the indictment to you beyond a reasonable doubt and you
9 believed that eyewitness beyond a reasonable doubt, one
10 eyewitness, could you convict someone of Capital Murder based
11 on the testimony of one eyewitness?
12 A. Yes.
13 Q. Now in order to sit on any jury -- burglary, theft,
14 robbery, drugs -- you have to be able -- anybody has to be able
15 to say they could consider the full penalty range before they
16 could sit on a jury. Okay? The full penalty range for Capital
17 Murder is life without parole or the death penalty. Okay?
18 A. Okay.
19 Q. So if you were sitting on a jury and you had convicted
20 someone of Capital Murder, could you consider the full penalty
21 range, life without parole or the death penalty?
22 A. Yes.
23 Q. And you told me you do believe in the death penalty.
24 A. Yes.
25 Q. And you have your whole life?
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1 A. Yes.
2 Q. Is that a fair statement?
3 A. Yes.
4 Q. Okay. Let's go a little further. If a person was
5 sitting on a jury, they have to be able to consider any penalty
6 range for an offense before them. So in a prosecution for an
7 offense with lesser-included offenses -- and I'm going to
8 explain that in a minute -- the jury may find the Defendant not
9 guilty of the greater offense but guilty of any lesser-included
10 offense. Okay?
11 Now, let's say I didn't prove to you the burglary
12 or the robbery. Okay?
13 A. Okay.
14 Q. All right. So you would have to find him not guilty
15 of Capital Murder, right, if I didn't prove that to you?
16 A. Yes.
17 Q. Okay. But then you would go on to consider if they
18 were guilty of first-degree murder, the lesser charge of
19 regular murder, just intentionally causing the death. Because
20 I didn't show you any of those aggravating circumstances.
21 Okay?
22 A. Okay.
23 Q. All right. So the penalty range for regular murder is
24 not less than 5 years nor more than 99 years or life and up to
25 a 10,000-dollar fine. Okay?
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1 A. Okay.
2 Q. Can you consider the full penalty range for murder,
3 not less than 5 years nor more than 99 years or life and up to
4 a 10,000-dollar fine?
5 A. Yes.
6 Q. Okay. By consider I mean really look at.
7 A. Yes.
8 Q. Okay. Can you do that even if you convicted someone
9 of Capital Murder? Let's say it was a horrible set of
10 circumstances. You'll agree with me there are no good Capital
11 Murders, are there?
12 A. No.
13 Q. They are all going to be ugly, aren't they?
14 A. Yes.
15 Q. Okay. So if you found somebody not guilty of Capital
16 Murder, you could consider the full penalty range, not being
17 less than 5 -- not less than 5 years, up to and including 99
18 years or life for murder?
19 A. Yes.
20 Q. Okay. Let's go a little further. Jurors are the sole
21 judge of the credibility of the witnesses. Jurors can believe
22 all, some, or none of what a witness says. All witnesses have
23 equal credibility before they begin to testify. Okay?
24 Some people say if it's a doctor or a lawyer, I'm
25 going to automatically believe them or not believe them. Okay?
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1 Or a police officer, they are sworn to tell the truth. They
2 are a law enforcement officer. I'm going to start them out a
3 little ahead because of their profession.
4 How do you feel?
5 A. I feel that it goes both ways.
6 Q. Okay. Tell me what you mean by that.
7 A. I mean, they can come across -- you know, listening to
8 them, you'd have to listen to the facts first.
9 Q. Okay. So you wouldn't judge somebody just by their
10 profession. You would start them out equally with all other
11 witnesses?
12 A. That is correct.
13 Q. Okay. All right. Now let's go a little further. A
14 confession. A confession of a defendant is admissible in
15 evidence if freely and voluntarily made, electrically recorded
16 or written, the confession shows that the accused has been
17 warned prior to making such confession of the right to remain
18 silent, that it could be used against him in court, the right
19 to a lawyer, if he cannot afford a lawyer the right to have a
20 lawyer appointed, the right to stop questioning at any time,
21 and if the person intentionally -- I'm sorry. The person
22 knowingly, intelligently and voluntarily waives those rights.
23 Okay? Gives up those rights.
24 A. Okay.
25 Q. So are those important rights to you?
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1 A. Yes.
2 Q. And so that's what's required on a confession. All
3 right? The requirements.
4 So it's up to the jury whether they believe that
5 the police complied. Okay? So it would be up to you on a jury
6 to determine whether the confession was freely and voluntarily
7 given or whether the police complied with what I just read to
8 you, all of those warnings. Okay?
9 A. Okay.
10 Q. So if you do not believe the police complied -- if you
11 do not believe the police complied or if the confession was
12 involuntary, then you would get an instruction that you will
13 wholly disregard the alleged statement or confession and not
14 consider it for any purpose. Okay? Can you follow that
15 instruction?
16 A. Yes.
17 Q. Okay. So let me put that in context. Okay? Because
18 I call this the cat-out-of-the-bag thing. Let's pretend you
19 have a confession to Capital Murder. It's ugly. It's grizzly.
20 It's unjustified, horrible, intentional killing of another
21 human being, an innocent victim. And the defendant, male or
22 female, goes into the grizzly details of what they did. Okay?
23 A. Okay.
24 Q. Grizzly details. Okay? And you've heard it now, but
25 you believe that a warning is missing. Okay? The police
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1 didn't comply because there is a warning missing. Okay?
2 A. Okay.
3 Q. One or two of the warnings are missing. They didn't
4 technically comply. You believe they didn't comply. Can you
5 wholly disregard that confession and not consider it for any
6 reason?
7 A. I can disregard it.
8 Q. Okay. So let me ask this going a little further. Can
9 you disregard it if it were the only piece of evidence that got
10 me beyond a reasonable doubt? Can you disregard it if you
11 believe the police did not comply, okay, with those warnings,
12 okay, that we talked about or you believe the confession was
13 involuntary? You said you can disregard it.
14 Let me tell you what disregard means then. It's
15 not in evidence. You can't consider it. If that was the piece
16 of evidence, can you disregard it if it means finding the
17 Defendant not guilty because I haven't met my burden beyond a
18 reasonable doubt without that confession and find someone not
19 guilty?
20 A. I could.
21 Q. Okay. Great.
22 Voluntary intoxication. Voluntary intoxication
23 does not constitute a defense to the commission of crime. I go
24 out and I tank one on. I decide to drink 20 or 30 beers and
25 then I go and I get in a fight with someone and punch them out
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1 at a bar. The fact that I have made a personal choice, as you
2 say, to voluntarily intoxicate myself is not a defense to
3 crime. Can you follow that instruction?
4 A. Yes.
5 Q. Okay. All right. Causation. A person is criminally
6 responsible if the result would not have occurred but for his
7 conduct, operating either alone or concurrently with another
8 cause, unless the concurrent cause was clearly sufficient to
9 produce the result and the conduct of the actor clearly
10 insufficient.
11 Just a minute, Ms. Woods.
12 MS. YENNE: Judge, can you tell me how much time
13 I've used, please?
14 THE COURT: You have gone 38 minutes.
15 MS. YENNE: Okay. So 22 minutes left.
16 THE COURT: I'm sorry. You started at 9:39 so
17 that's 21 -- 38 minutes.
18 Q. (BY MS. YENNE) Okay. A person is criminally
19 responsible if the result would not have occurred but for his
20 conduct, operating either alone or concurrently with another
21 cause, unless the concurrent cause was clearly sufficient to
22 produce the result and the conduct of the actor clearly
23 insufficient.
24 That's a mouthful, but let me give you an
25 example.
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1 A. Okay.
2 Q. Let's say somebody sets an apartment fire. They set
3 an apartment fire and it kills the family next door. The fire
4 department is having a bad day, Ms. Woods. They are having a
5 bad evening. Two engines break down, and it's a holiday
6 weekend and they don't get there as timely as they can. The
7 response time is twice the response time or maybe they could
8 have saved the family next door, but they didn't. And they are
9 a good fire department. They just had a bad night. Something
10 happened. Human nature.
11 The conduct of the actor in setting the fire was
12 clearly sufficient to kill the family next door. Am I making
13 sense?
14 A. Yes.
15 Q. Separate and apart with the fire department not being
16 able to get there in time. Okay?
17 Now let's go on to burglary. A person commits an
18 offense if, without the effective consent of the owner, the
19 person enters a habitation with intent to commit a felony,
20 theft, or an assault; or enters a habitation and commits or
21 attempts to commit a felony, theft, or an assault. Okay?
22 Those are the definitions. They can enter with the intent to
23 commit a felony, theft, or assault or -- with the intent or
24 form it right inside the residence. Okay?
25 A. Okay.
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1 Q. All right. Can you follow the burglary instructions
2 if you got them on a jury?
3 A. Yes.
4 Q. Let's go to robbery. A person commits an offense if,
5 in the course of committing theft and with intent to obtain or
6 maintain control of the property, he intentionally, knowingly,
7 or recklessly causes bodily injury to another.
8 In the course of committing theft means conduct
9 that occurs in an attempt to commit, during the commission or
10 in immediate flight after the attempt or commission.
11 I decide I'm going to steal from Wal-Mart,
12 Ms. Woods. Steal from Wal-Mart. The manager stops me. I'm
13 stealing makeup and I punch the manager out and I give him a
14 black eye. Okay? Bodily injury. I'm intentionally causing
15 bodily injury in the course of committing theft. Okay?
16 A. Okay.
17 Q. Could you follow that instruction?
18 A. Yes, ma'am.
19 Q. Okay. So two parts of a trial. There is
20 guilt/innocence, and there is punishment. So let me go a
21 little further. You told me that you can hold me to my burden
22 beyond a reasonable doubt.
23 A. Yes.
24 Q. Okay. If I don't meet my burden, you could find
25 someone not guilty of Capital Murder?
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1 A. Yes.
2 Q. Okay. If I meet my burden, you could find them
3 guilty?
4 A. Yes.
5 Q. Now if a jury finds someone not guilty, the trial is
6 over. They go home. Okay? It's over. Someone is acquitted,
7 and they go to their home or their community or wherever.
8 Okay?
9 A. Okay.
10 Q. That's the end of the trial if the person is found not
11 guilty.
12 Now if they are found guilty, in order to sit on
13 a Capital Murder jury you have to be able to follow the
14 process. So it's kind of a little more complicated process
15 than what people would think. It's not just a vote of life or
16 death. Okay?
17 A. Okay.
18 Q. There are a question -- and maybe two questions --
19 that would be given to you, okay, if you sat on a Capital
20 Murder jury. All right? And right after the guilty verdict,
21 before any punishment evidence is presented, you cannot have
22 made up your mind as to the answers. Okay? You have to be
23 able to consider guilt/innocence evidence, but you must be able
24 to consider any and all punishment evidence as well. Okay? In
25 order to consider all evidence, you have to keep an open mind.
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1 Okay?
2 A. Okay.
3 Q. Each question is independent of the verdict. Each
4 question is independent of each other, and each question is
5 based only on the evidence presented. Okay?
6 So some people say the minute I convict someone
7 of Capital Murder, I am going to automatically sentence them to
8 life without parole. Okay? Is that you?
9 A. No.
10 Q. Okay. Someone says the minute I convict someone of
11 Capital Murder, I'm going to automatically give them the death
12 penalty. Is that you?
13 A. No.
14 Q. Okay. So while you think the death penalty is an
15 appropriate penalty -- is that a fair statement, at times?
16 A. Correct.
17 Q. You're telling me that you haven't automatically made
18 up your mind yet?
19 A. Correct.
20 Q. Okay. So -- and you see what I'm saying? Because all
21 Capital Murders are going to be horrible.
22 A. Yes.
23 Q. They are all going to be ugly, and they are all going
24 to be rotten to sit on.
25 Let me ask you a question. You had checked
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1 Number 160, page 29, that you wanted to be a juror. Maybe --
2 is that a yes?
3 A. Yes.
4 Q. Okay. Can you tell me why?
5 A. It's just a civic duty.
6 Q. Okay. All right. Let me go a little further. So you
7 will not have automatically made up your mind?
8 A. Correct.
9 Q. Okay. So then if the jury found someone guilty of
10 Capital Murder, you go on to what's called a Special Issue. So
11 let's talk about that Special Issue.
12 Do you find from the evidence beyond a reasonable
13 doubt that there is a probability that the Defendant would
14 commit criminal acts of violence that would constitute a
15 continuing threat to society?
16 Now I have to prove that to you beyond a
17 reasonable doubt. And what we're doing is predicting future
18 danger. Okay?
19 A. Okay.
20 Q. All right. So I have to prove to you beyond a
21 reasonable doubt that there is a probability that the Defendant
22 would commit criminal acts of violence that would constitute a
23 continuing threat to society. So my question to you is what
24 does probability mean to you?
25 A. The likelihood that it would be a repeat of something
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1 similar.
2 Q. Okay. Maybe murder. Could it be repeat of property
3 crimes or assaults?
4 A. Correct.
5 Q. Okay. So property crimes could be criminal acts of
6 violence to you?
7 A. Correct.
8 Q. Okay. And would it be more than one act? It's plural
9 there. It says "acts."
10 A. Acts. Okay.
11 Q. So you can consider property crimes acts of violence?
12 A. Yes.
13 Q. Okay. And I think one of the things you said is that
14 you had put in your questionnaire that you had a concern about
15 the people that continue to repeat acts?
16 A. Yes.
17 Q. Okay. Does that include repeating property crimes?
18 A. Yes.
19 Q. Okay. So now I have to prove that to you beyond a
20 reasonable doubt. Can you hold me to that burden?
21 A. Yes.
22 Q. Now let me tell you what society is. Society is not
23 limited to but includes prison. Let me tell you why. Because
24 once you're convicted of Capital Murder, there is only one
25 place you're going if you're a defendant. Because the penalty
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1 range is life without parole or the death penalty, you're going
2 to a prison, right?
3 A. Correct.
4 Q. Okay. So society has to include prison. It's not
5 limited to but it includes prison.
6 So let's go a little further. So can you
7 consider prison to be society?
8 A. Yes.
9 Q. Okay. Do you believe that inmates in prison have a
10 right to be safe from other inmates?
11 A. Yes.
12 Q. Okay. Do you believe prison personnel have a right to
13 be safe from other inmates?
14 A. Yes.
15 Q. Ministers, prison ministry?
16 A. Yes.
17 Q. Nurses, doctors in prison have a right to be safe?
18 A. Yes.
19 Q. Visitors to prison have a right to be safe?
20 A. Yes.
21 Q. Okay. Now let me go on to the focuses on this. She
22 runs the power point. I do not. In addition to her legal
23 talent, she can at least run a power point. I cannot.
24 Special Issue No. 1 focuses on the character for
25 violence of the particular individual, not merely on the
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1 quantity or quality of the institutional restraints put on that
2 person. In other words, this Special Issue focuses on the
3 internal restraints of the individual to behave. Am I making
4 sense?
5 A. Yes.
6 Q. Not merely what a jail would restrain you from. The
7 person's restraints. Would they commit continuing acts of
8 violence that would constitute a continuing threat to society?
9 Am I making sense?
10 A. Yes.
11 Q. Their internal control. Kind of a weird Special
12 Issue, but it has -- society has to include prison. Okay?
13 A. Okay.
14 Q. Let's go a little further. In deliberating on the
15 issues submitted you shall consider all evidence admitted at
16 the guilt or innocence stage of the trial, including evidence
17 of the Defendant's background or character or the circumstances
18 of the offense that militate for or mitigates against the
19 imposition of the death penalty. Okay? So you're supposed to
20 consider all the evidence. Okay?
21 A. Yes.
22 Q. Guilt/innocence, all the circumstances of the horrible
23 crime. Okay?
24 A. Okay.
25 Q. And all of the evidence at punishment, Defendant's
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1 background or character, that militates for or mitigates
2 against the imposition. Can you follow that instruction?
3 A. Yes.
4 Q. Let's go a little further. So Special Issue No. 1 is
5 a future dangerousness issue. It's predicting future
6 dangerousness.
7 Some people say that's never me. I can never
8 predict future danger.
9 Can you predict -- can you answer that question
10 even if it's predicting future dangerousness?
11 Some people say, well, I don't know how you could
12 ever prove to me beyond a reasonable doubt that there is a
13 probability that a defendant would commit criminal acts of
14 violence that constitute a continuing threat to society.
15 What I have to prove to you, again, do you find
16 from the evidence beyond a reasonable doubt that there is a
17 probability that the Defendant -- I have to prove to you beyond
18 a reasonable doubt there is a probability that the Defendant
19 would commit criminal acts of violence that would constitute a
20 continuing threat to society. Can you answer that question?
21 A. Yes.
22 Q. Okay. Could you agree with me that past behavior can
23 sometimes predict future behavior?
24 A. Yes.
25 Q. Okay. Because you yourself, in your questionnaire,
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1 had put repeated behavior. Sometimes it seems that some people
2 don't learn, right?
3 A. Yes.
4 Q. Okay.
5 THE COURT: Just for your information, you have
6 10 minutes.
7 MS. YENNE: Thank you.
8 Q. (BY MS. YENNE) Let's go a little further. So let me
9 go to the grid, please.
10 So if I prove to you beyond a reasonable doubt
11 that the Defendant -- there is a probability the Defendant will
12 commit criminal acts of I violence that constitute a continuing
13 threat to society, can you answer Special Issue No. 1 yes?
14 Could you answer that if I proved it to you beyond a reasonable
15 doubt?
16 A. Yes.
17 Q. Okay. And the reason that I'm asking that -- and it
18 takes all of the jury. The jury must be unanimous in answering
19 Special Issue No. 1 yes. Do you want to know why? Because
20 that's the road to the death penalty. Okay?
21 A. Okay.
22 Q. All right. So they have to be unanimous in finding
23 him to be a future danger based on all the evidence you looked
24 at at guilt/innocence and punishment.
25 Now no requires ten or more jurors. Okay? And
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1 then the Judge --
2 MR. WOOTEN: Judge, I believe that's a little bit
3 misleading. Because if you need 12 to get to the next part,
4 then an individual vote of one would keep that 12 from
5 happening. So I really think that almost makes it sound like
6 you're only going to have one of two possibilities. You're
7 going to have 12 or 10, whereas -- and I don't want this juror
8 to think that 10 people have to get together and cast that
9 vote.
10 THE COURT: Do you want to rephrase that,
11 Ms. Yenne?
12 MS. YENNE: Well, in order to return an answer of
13 no, it requires 10 or more jurors.
14 THE COURT: Overrule your objection.
15 Q. (BY MS. YENNE) In order for the jury to return an
16 answer of no, it requires 10 or more jurors; and then the Judge
17 would sentence the Defendant to life without parole. Okay?
18 A. Okay.
19 Q. And that will be over.
20 But if the jury answered unanimously yes, they
21 have already found him to be a guilty Capital Murderer and now
22 the jury has found him to be a future danger. Right?
23 A. Okay.
24 Q. Am I making sense?
25 A. Yes.
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1 Q. Okay. Some people say, well, once I found someone to
2 be a guilty Capital Murderer, horrible crime, and once I found
3 that they are a future danger, I'm going to automatically
4 sentence someone to life without parole or the -- I've already
5 got my mind made up. Okay?
6 Would that be you, already having your mind made
7 up? If you found him to be a guilty Capital Murderer and a
8 future danger, you can't have your mind made up at that point
9 in time.
10 Some people say, really, ma'am, I've already
11 found him to be a guilty Capital Murderer and a future danger.
12 My mind is made up about what I'm going to do after that. Is
13 that you, or could you keep an open mind?
14 A. I can keep an open mind.
15 Q. Okay. If that's the case, then you go on to Special
16 Issue No. 2. It's called the mitigation issue.
17 Now I have the burden of proof on Special Issue
18 No. 1, don't I?
19 A. Yes.
20 Q. Okay. You said you could hold me to it. Special
21 Issue No. 2 is whether taking into consideration all of the
22 evidence, including the circumstances of the offense, the
23 Defendant's character and background, and personal moral
24 culpability of the Defendant, there is a sufficient mitigating
25 circumstance or circumstances to warrant that a sentence of
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1 life imprisonment without parole rather than a death sentence
2 be imposed. Okay?
3 A. Okay.
4 Q. Now nobody has the burden of proof on that. Neither
5 the State nor the defense. So you would not hold the Defendant
6 to any burden, would you?
7 A. No.
8 Q. Okay. Neither would you hold the State. There is no
9 burden of proof.
10 You're always going to hear some mitigation in a
11 case, and I'll tell what you what that mitigation is. But you
12 have to take into consideration all the evidence, circumstances
13 of the offense, Defendant's character or background, personal
14 moral culpability. You have to determine if there is a
15 sufficient mitigating circumstance or circumstances to warrant
16 life in prison or a death sentence. Okay?
17 A. Okay.
18 Q. So let's go a little further. What is mitigating
19 evidence? Evidence that a juror might regard as reducing the
20 Defendant's moral blameworthiness.
21 MR. WOOTEN: Judge, at this time we would make an
22 objection to this slide. What's being projected on the screen
23 is identical to what has been entered as Defendant's Voir Dire
24 Exhibit No. 1. We believe that the slide violates Eddings
25 versus Oklahoma. Also, I believe that it violates the Eighth
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1 Amendment. We think it's a misstatement of the law of
2 mitigation in Texas.
3 THE COURT: Overrule your objection.
4 Q. (BY MS. YENNE) Now it's evidence a juror might regard
5 as reducing the Defendant's moral blameworthiness. Lessening
6 his blame is what it means. Basically, evidence you might
7 regard as lessening the Defendant's blame. Never lessening the
8 Defendant's guilt. They are already guilty, aren't they?
9 A. Okay.
10 Q. Okay. Am I making sense?
11 A. Yes.
12 Q. That's kind of a hard one. Okay? In other words,
13 guilty Capital Murderer, future danger; but is there something
14 that lessens their blame? Okay? In other words, something
15 that will warrant a sentence of life imprisonment versus the
16 death penalty?
17 A. Okay.
18 Q. So what can that be?
19 MS. YENNE: Go to mitigation.
20 Q. Now the jury must consider and give effect to
21 mitigation. That doesn't mean you have to find it. Okay?
22 Remember we talked about "might regard" and that it only -- and
23 even if you found there to be mitigation, Ms. Woods, it has to
24 be sufficient to warrant a life sentence. Am I making sense?
25 A. Yes.
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1 Q. Okay. What one juror thinks is mitigation, another
2 may not.
3 So let me give you an example. Some people have
4 seen children with families. They look at them and they say,
5 oh, my God. That kid doesn't have a chance. Those parents --
6 do you know what I mean -- never cared about them their whole
7 life. You wish somebody would take them away. Am I making
8 sense?
9 A. Yes.
10 Q. Okay. Because you know where that road is headed
11 because that kid never had a chance. Am I giving an example of
12 something that might lessen someone's blame?
13 A. Yes.
14 Q. But you get to decide if it does -- if. You don't
15 have to -- or if it's sufficient enough a mitigating
16 circumstance. Am I making sense?
17 A. Yes.
18 Q. Okay. So youth. To one juror youth could be it.
19 Could be not. A young person. To another old age could be.
20 To another child abuse, physical or sexual injuries during
21 childhood, good work history, drugs abuse, acts of kindness for
22 others.
23 Let me go a little further. You're always going
24 to have mitigation in a case. Somebody is always going to have
25 done something nice for somebody else in their life, aren't
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1 they?
2 A. Yes.
3 Q. Somebody is always going to have a bad experience
4 happen to them in life. The college of hard knocks hits us
5 all, doesn't it?
6 A. Yes.
7 Q. Okay. So there is always going to be mitigation. The
8 jury gets to decide is it in one way or another sufficient. So
9 it just doesn't matter if it's mitigating. It has to be
10 sufficiently mitigating to warrant a life without parole
11 sentence. Am I making sense?
12 A. Yes.
13 Q. Okay. Could be acts of kindness, could be alcohol
14 abuse, could be low IQ, low intellectual functioning. It could
15 be -- remember causation, the fire department example? It
16 could be that the Defendant was less responsible in the crime.
17 Am I making sense?
18 A. Yes.
19 Q. It could be the circumstance of the offense. It could
20 be a family breakup, single parent home, intellectual issues,
21 poverty, exposure to chemicals, poisons, toxins, toxic
22 material, toxic mold, mental retardation. It could be
23 desperation. Okay? Which you have to be able to say honestly
24 that you could consider and give effect to -- that doesn't mean
25 that you have to find it -- that there is weight in it to be
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1 mitigating. Am I making sense?
2 A. Yes.
3 Q. All right. Let's go back then. So if there is
4 sufficient mitigating circumstance, you as the jury get to
5 determine it. Am I making sense?
6 A. Yes.
7 Q. Okay. Let's go to the grid then just a minute.
8 Let's say you found there -- could you answer
9 that question, Special Issue No. 2 -- could you answer Special
10 Issue No. 2 if you took all the evidence into consideration,
11 the background, character, personal moral culpability of the
12 Defendant, if there was no sufficient mitigation, no sufficient
13 mitigating circumstance -- there could be one. If the evidence
14 didn't show you that there was a sufficient mitigating
15 circumstance to warrant life in prison without parole rather
16 than a death sentence, would you answer that no?
17 A. Yes.
18 Q. Okay. And if there was a sufficient mitigating
19 circumstance or circumstances could you answer it yes?
20 A. Yes.
21 Q. And the reason I ask you that is because if he or she
22 is guilty of Capital Murder and you found them to be a future
23 danger and there is no mitigation, a no answer has to be
24 unanimous from the jury because then the defendant receives the
25 death penalty. Okay?
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1 A. Okay.
2 Q. So if I prove to you Special Issue No. 1 yes beyond a
3 reasonable doubt, that there is a probability he would commit
4 criminal acts of violence that constitute a continuing threat
5 to society, I met my burden, can you answer that question?
6 A. Yes.
7 Q. Okay. And if there is no sufficient mitigation --
8 there is mitigation, but it's not sufficient enough -- can you
9 answer it no?
10 A. Yes.
11 Q. Knowing that the Defendant receives a death penalty?
12 A. Yes.
13 Q. Okay.
14 THE COURT: For your information, two minutes.
15 MS. YENNE: Thank you.
16 Q. Oh, I notice you watch Cops on TV.
17 A. True Confessions.
18 Q. True Confessions. I'm sorry. You watch it every
19 week?
20 A. Saturdays.
21 Q. Is that your -- mine is NCIS and I like Person of
22 Interest. Okay?
23 A. Okay.
24 Q. But what do you like about Cops?
25 A. They just mainly pull over to give traffic violations.
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1 That's it. None of these murders or anything like that.
2 Q. Not any murder, just traffic tickets?
3 A. Right.
4 Q. My favorite pullover still is the Geico pig behind the
5 wheel. Do you know why I pulled you over? No taillight. Do
6 you know which one I'm talking about, that commercial? The
7 Geico commercial? The officer giving the pig a citation?
8 Okay. That hasn't made Cops yet.
9 A. Okay.
10 Q. All right. Let me check one other thing. You
11 answered you thought the death penalty was used too often on
12 your questionnaire. I have one last question about that.
13 Let's go to page -- page 120, and then I'm about ready to wrap
14 it up. You said page 20: Capital punishment may be wrong, but
15 it is the best preventative to crime.
16 Is that still your belief?
17 A. Yes, it is.
18 Q. Okay. And is it still your belief that we must have
19 capital punishment for crimes?
20 A. Yes.
21 Q. Okay. You had put that you thought the death penalty
22 was used too often, okay, on page 18. But you also put --
23 w
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