94-GS-44-906 and 94-GS-44-907

Court of General Sessions, Sixteenth Circuit, Union County, South Carolina

July 28, 1995

Hon. William L. Howard, Judge.

ATTORNEYS:    Thomas E. Pope, Solicitor, Keith Giese, Solicitor, York, For the Plaintiff; David I. Bruck, Esq., Judy Clarke, Esq., Columbia, For the Defendant.

    THE COURT: All right. Is the State ready to proceed?
    MR. POPE: State is ready, Your Honor.
    THE COURT: Is the defense ready to proceed?
    MR. BRUCK: Defense is ready.
    THE COURT: All right. Are the shades in the position that you would like to have them?
    MR. POPE: Fine with the State, Your Honor.
    MR. BRUCK: Well, we may want to adjust them at the break.
    THE COURT: Okay. Ladies and gentlemen, we are about to have closing arguments. As some of you may be new to the courtroom, let me ask you to please take all precautions that you can to be as still and as quiet as possible. I realize that we all move around a little bit, but in this courtroom every sound seems to resound and to be heard, and the voices tend to echo a little bit and it becomes difficult for the jury to hear. So to the extent it's possible, as many people as we have here in the courtroom, I would ask you to try to take special steps to be as quiet as you can.
    I would ask each person to please remain in your seats through the entire argument. We are going to break at the conclusion of each argument and give the jury a few minutes -- to go back to the jury room for a few minutes before we have the next argument. So at that point you will be able to get up. So please do not try to get up and exit during anybody's argument.
    I would ask you all in the back of the room to make sure that no one tries to come in during the closing argument. Obviously, if somebody has an emergency situation, that's a different matter.
    Very well then. Is there any matter we need to address before we do have closing argument?
    Anything by the State?
    MR. POPE: No, sir, Your Honor.
    THE COURT: Anything by the defense?
    MR. BRUCK: No, sir.
    THE COURT: Very well then. If you would bring us the jury.
    Counsel, I'm not going to let them take notes during closing argument. Anybody object to that?
    MR. POPE: No.
    MR. BRUCK: No, sir.
 (The following takes place in the presence of the jury panel)
    THE COURT: Good morning Mr. Foreman and ladies and gentlemen of the jury. I hope that you all had a pleasant evening.
    As you know, at this time we have concluded with all of the evidence and the testimony that is going to be presented in connection with this matter. And we will now hear closing arguments. So if you will, I'll ask you to please give to the attorneys your attention, your complete attention, as they present to you their closing argument. I'm sorry that you had to wait this morning. I was working out some legal issues with regard to charges that we needed to work out before we could begin.
    So at this point we will have closing argument.
    Mr. Pope, you may proceed.
    MR. POPE: If it please the court, Your Honor.
    THE COURT: Yes, sir.


  MR. POPE: Ladies and gentlemen, I know that we have all lived -- this has been a long two, three weeks. Being here in the courtroom with you, I would have to say from what I have observed, that we could not have had a better jury. Regardless of what decision that you make, regardless of what penalty that you impose, I truly appreciate that you represent this community. You come from all walks of life. And I truly believe that you will stick with the vow, with the promise, that you gave the court when you said that you are type that wants to hear everything. And that you won't come in with any preconceptions about what the penalty should or shouldn't be, that you would wait until you heard everything, no matter how painful it was, no matter how difficult it was, that you would hear everything and then you would make a determination.
    This is going to be the last time that you will hear from the State. You will hear from us and the defense will have an opportunity to speak to you. During this past two weeks there has been so many times when Mr. Geise would be up, and Mr. Bruck would be up, and Ms. Clarke, and the witness would say something and I would want to jump up and say hey, what about this, what about this, bring it to your attention. There is no way humanly possible that I can bring back every single thing. I have tried. I have written notes. I have tried to keep up, every single point that I would want to make to you. And so there is -- no matter what I end up saying during my brief time here with you now, there is going to be things that I miss. You see, my job is not really to stand here and tell you what to do. If that's the case, I would be sitting on that side. I would be one of the jurors. But my job is to point out aspects of the case and just call them to your attention.
    No matter how impassionate that I get about what I'm going to say to you, no matter how forceful I get, I want you to always know that I respect that you are the people that have to make the decision. I don't take that lightly. I don't stand over here and rant and rave and say do this, thinking that it's just simple with me as giving you words and you doing it. So I want to say that in advance, that I respect your decision, regardless, and I certainly do not take it lightly.
    Now, the reason we are at this stage is because of the first stage. And as we talked before, the first stage is as to the guilt.
    You went back in the jury room and you took these two indictments, Indictment 94-GS-44-907, stated that Susan Smith did in Union County on or about October 24th, 19 -- October 25th, 1994, feloniously, willfully, and with malice aforethought kill one Michael Daniel Smith by means of drowning. And that the said victim died as a result thereof.
    Indictment 94-GS-44-906, indictment for murder, that Susan Smith did in Union County on or about October 25th, 1994, feloniously, willfully, and with malice aforethought kill one Alexander Tyler Smith by means of drowning, and that said victim died as a result thereof.
    These documents are nothing but that. They are just documents. These words are just charges. These words, by virtue of this signature, by virtue of this verdict, now have meaning that transcends these documents, because you as the jury have said that Susan Smith did feloniously, willfully, and with malice aforethought roll Michael and Alex into John D. Long Lake. So ladies and gentlemen, that's what brings us here today. You have made the first decision.
    Ladies and gentlemen, again what I intend to do is go through parts of the evidence that you have heard. And in no way again am I ever -- if I misstate something, I'm doing it truly unintentionally. If I recall something that you recall differently, certainly you stick with what you recall.
    Ladies and gentlemen, if there was one theme in this case factually, it would be about choice -choice to do different things. Start with the choice that Susan Smith made with Michael and Alex. You go back. Every single choice, situation. We all have situations that are thrust upon us. I'm not saying that. But how we deal with situations, how we handle situations, that's how we make our choice.
    Susan Smith chose to drive to the lake. She chose to send Michael and Alex down that ramp. Then as heinous as that act was, she carried it even further. She chose to lie. She chose could run away from it. She chose to brings us in.
    Ladies and gentlemen, Mr. Bruck had said early in the opening of this phase that the one thing that you just can't do, just must not do is say Susan never loved her children, because that's the worst hurt that you can inflict upon her, that Susan never loved her children. What does that tell us, ladies and gentlemen? That the worst thing she's concerned about is what people think of her. He's not saying the worst thing that you say about her is that she killed her children, but that you might say she didn't love her children.
    It comes down to who are the victims in this particular case. Now, at first blush it's easy to state and say well, it's Michael and Alex. And the defense says it's Susan, but Susan isn't blaming anybody. I would like to point out why the defense says Susan is the victim in this case and why the State says she's not.
    The first reason Susan is a victim is because of her father's suicide. And her father's suicide, you have heard about it from various testimony, various people. But you also heard that Harry, he might hurt himself, but Harry wouldn't hurt those kids. Harry, when he chose to shoot himself, thought enough to call for help after it happened. We didn't see that from Susan Smith out at John D. Long Smith. We didn't see Susan Smith telling Shirley McCloud that when she got to the house. Susan Smith, according to Scotty Vaughan, didn't even remember her father's suicide.
    The night that Susan left the house, it was in such a suicidal state. Yet that night, that afternoon, starting with when they went back to Conso with Susan Brown, who offered to go home with them, to be with them, to be with her children? Susan Brown. Susan Smith declined.
    Linda Russell calls. Her mother said felt like something is wrong. Her mother offered to come over to the house with her, to be with her, to be with the children. Susan Smith declined.
    David Smith called. The same night David Smith calls and offers to come over to the house. And again Susan Smith declined.
    Susan Smith has this need to be with people, this need to surround herself with people, and yet she's had three people offering, and each time she declines.
    Ladies and gentlemen, if that night at the lake, at the ramp, Susan Smith intended to commit suicide, then changed her mind, we have been through this before, why not just pull up the brake? Why not just pull up the brake? If she bales out of the car, like they say, why are her clothes not dirty? Why are her clothes not torn? The car door wasn't locked. Do you remember when her car was recovered? She did not intend to send those children to her death, why didn't she open the car door back and try to stop the car? She wasn't even wet. She wasn't wet when she got to Shirley McCloud's house.
    Ladies and gentlemen, they talk about -- you have had doctors, you have had Ms. Bowers, Arlene Andrews, come in and tell you about depression. I'm not making light of depression. A lot of people, a lot of families, have to deal with that. But in that depression, it was ironic that the doctor said that it was intermittent. She's got the perfect alibi depression. It's the kind that nobody sees. Nobody sees it, unless -- because she's always lonely. She's around people, there isn't a problem. Nobody sees it. It's intermittent. And what did the doctor tell her? She's not depressed when her lonliness is satisfied. And do you remember, I asked him, I said "doctor, did Michael and Alex satisfy that loneliness? Did Michael and Alex satisfy that depression?" And what did they all tell me? "Oh, yes, she loved Michael and Alex. Michael and Alex satisfied that depression." Michael and Alex were with her at John D. Long Lake. So we are transcending suicide, we are transcending depression, and moving towards intent.
    Another reason Susan Smith is the victim is because of her sexual abuse. That is a horrible thing what her stepfather did to her, and it most likely has lasting scars on anybody involved, but it goes back to choices. Michael and Alex had nothing to do with what went on between she and Bev Russell. Michael and Alex had nothing to do with her choice to engage in conduct with Bev Russell - not as a child, but just weeks before their death. So I ask you again to weigh, weigh that as you will as far as the pressure of the Bev Russell arrangement on Michael and Alex being killed.
    Susan went through a series of sexual relationships. And always it was people taking advantage of her in situations, and Susan is the victim. But, again, I ask you to look. When she has relationships at work, when she has relationships at Winn Dixie, who did she have relationships with? Wasn't co- workers. It was the assistant manager. It was the manager. And she gets to Conso, who does she have relationships with? Not co-workers. It's the boss. The boss's son.
    Again, ladies and gentlemen, I ask you when you are looking at Susan Smith as a victim to consider that, to consider her motive, to consider her reasons behind what she did.
    The defense is going to tell you that Susan Smith is childlike. How many times did you hear that from the stand from different witnesses - she's childlike, she's childlike? The worst thing that you could say about that child is that she didn't love her children. She has an incredible need to please, and that gets her in trouble. That came from Dr. Halleck again.
    Do you remember when Dr. Andrews was up at the end, and I asked her, she told us how childlike Susan was, how childlike. And I asked her. She told me that a child is the center of her own universe. And I submit to you to the extent that Susan Smith is childlike, she truly is the center of her own universe.
    Now, finally, they tell you that Susan is remorseful. Susan showed the greatest remorse that has ever been seen, and she's sorry. And I submit very well she may be sorry now. She may be sorry for her condition she's in now, now that things did not work out like she planned. But was she sorry when she drops that hand brake? Is she sorry when she ran to the house, supposedly having no premeditated plan, but from the time she ran to the car to the house she had Monarch, she had a description, she told them all this information about the carjacking, but now she's sorry. Now she's sorry. She wasn't sorry for nine days. She didn't appear particularly sorry when she was riding with Eddie Harris. Do you remember that? She was riding with Eddie Harris on the way to give the sheriff the statement. Some twenty to twenty-five minutes before she showed the worst remorse ever seen, she was talking about Eddie Harris teaching her how to shag. She was asking how she looked on television. Again, I ask you to consider that.
    Consider her motivation. Mr. Geise said actions speak louder than words. I ask you to consider that when you are in the jury room.
    And for the most remorse she's ever seen, and she gets to Columbia after being arrested for murdering her two children, and she asks Charlie Webber to get her an absentee ballot. Does she think about those kids? Is she remorseful about those kids? Think about it.
    Ladies and gentlemen, the State's position has always been the position, continues to be our position, that Susan Smith is selfish and she's manipulative. And you have had people sit here and she's kind and she's gentle and she's -- she would never manipulate anybody. You heard, what, for a day and a half, two days of that. She would never manipulate anybody.
    What I would ask you to do when you go back in the jury room is look at the videos from the nine days. Particularly I would ask you to look at the ABC, CBS, and NBC morning shows on November 3rd. Those particular videos, was she manipulative? Oh, Susan didn't want to be on TV. She -- we had to make her be on TV. They didn't put words in her mouth, did they.
    The biggest tragedy through that nine days or the saddest thing, and you watch this on every single video, and I'm asking you -- no, I'm begging you to review these videos. From the first day, Channel 7, three and a half, four hours after Michael and Alex had been rolled in the lake, I would like you to take -- this is the video -- the first one that you saw when they were at the house. And do you remember, it's like a raw footage video, like the camera is pointing at the wall a while, and you hear people talking and everything, and then suddenly they come over to Susan and David and they put the camera on them. I want you to look at this video. Four hours after those boys -- they are still in the bottom of the lake out there. Four hours. I want you to look at this video and watch Susan Smith's face. As the camera turns on David Smith, they're in shock. And Susan looks back and goes "oh, Lord," and laughs and looks up. I beg you. I beg you to look at this, because actions speak louder than words. As soon as she gives that smile, as soon as she looks back, she's got her game face on. She's in the game.
    She tells him about that man in Monarch, and she tells him about the carjacking. She even tells him oh, I know I should start locking my doors. She goes through the whole story while David Smith is standing right next to her in shock. And for nine days she manipulated David, her family, their family, the community, the nation, the world. For nine days she manipulated them.
    If you look at David Smith in these last three videos, it's really -- it's kind of embarrassing for him, if you think about it, because he told you during the nine days that appeared like they might be getting back together. And he told you how he wanted to be back together with her. And during those nine days he defended her. He defended her to her own mother who wanted her to tell the truth. And he sat on national television. He said I believe my wife totally. He sat there and poured his heart out saying that he believed her. He supported her. They had nothing to do with it. And she sat right on that couch and nodded and agreed with him.
    Another thing that I would look that goes hand in hand with whatever you do, don't say Susan didn't love those kids. You watch these three videos, do you count how many times Susan Smith said it hurts that somebody would blame me. It hurts that somebody would think that I would have anything to do with it. I know the truth. The Lord knows the truth that I had nothing to do with it. Is that the sweet girl that -- what was the guy that was the cornerstone of the search process that said oh, she would never lie. She would never lie. That was of the guy that was on Larry King Live, I think, Susan would never life. She looked every one of us in the eye and lied.
    Ladies and gentlemen, I submit to you, I continue to submit to you, that Susan Smith, her love for herself was greater than her love for those boys.
    We went through in my closing last time the incidents involving Tom Findlay, and I'll touch just briefly on them. October 17th, first letter she writes to Findlay when they had talked about separating. "Who knows what the future holds for our relationship?"
    Sandra Williams. She told us she was in love with Findlay, but they could never be together because of her children.
    The letter from Tom Findlay to Susan, it says "yes, I am talking about your children."
    Conversation with Susan Brown. "Sometimes I wonder what my life would be like without kids."
    25th -- 24th with Hickory Nuts, and 25th, the whole day was filled with Tom Findlay.
    And when she gets up to Shirley McCloud's house, she is wearing Tom Findlay's sweat shirt and her kids, because of her failed suicide, had just rolled into the lake. When David - her husband -gets there, and they are going to try to see what they could do about the kids and talking to television and all of that, what did she tell David? That's something we didn't have in the last closing. What did she tell David? "David, I hope you don't get mad if Tom Findlay calls." This is scant hours since the boys have been dropped in the lake. And Tom Findlay is on her mind.
    The next day sends word for Tom to call. Apologizes when Tom calls. Through the nine days she sends words to Tom.
    On November 1st -- and we have gone over this before and I would like to go over it with you again. November 1st, after all these days of agony, all this time spent with her family, on November 1st she tells Pete Logan she had one wish, that she could turn back time -- of all the things she could wish for, if she could turn back time and have not told Tom Findlay about his father.
    Stated that her concerns at that time, and that's the 1st. Boys would have been in the lake for a week now. And her concerns at that time, other than Tom Findlay, were not knowing where the children were, not knowing if they were alive or not, not knowing if they were taken care of. Would rather know they were in heaven than someone hurting them or torturing them. That she didn't mind somebody spanking them as long as they weren't hurting them. And finally not knowing what happened. This is what she's telling the officer a week after these boys are in the water.
    Ladies and gentlemen, you have been through this nine days numerous times. You have gone through with the videos. And again I ask you to take a look at them and make your own determination. You have had the videos for the nine days. Susan never once mentioned anything about suicide. Never once anything about remorse. Anything other than how she appeared on TV. Whoever has got the boys, bring them back. Do you remember David Caldwell, she called him an S.O.B. based on him accusing her of taking the children. So Susan, it's important to her that everybody knows she had nothing to do with this while they are in the lake at her hand, with her hand on the brake.
    Ladies and gentlemen, these videos become tremendously important when you see Susan Smith looks us in the eyes and says the hardest part is not knowing. She sits there next to David and says "Michael and Alex, when you get home, we are going to have the biggest celebration." She says "I was all excited when we got the news about Washington." She allowed that whole family to be excited about the potential that maybe they found Alex. Maybe they found Alex. And again with the knowledge that those boys were in the bottom of the lake.
    Ladies and gentlemen, Mr. Geise told you at the beginning we are going to try to do the best job that we could for a brief fleeting second to bring Michael and Alex back to life. You have heard from family members. You heard from family members on both sides. And I think not one had anything but fond memories for those boys.
    You heard David Smith as he looked at each picture, he would lay it down and he would tell you and this shows what a happy little fellow he was. And you had David tell us about Alex and Michael and the game that he's my brother, and I love him. About David telling us about Michael being a daddy's boy, about Michael looking out for his little brother. That's the most excruciating thing I think we had to deal with in this trial is having that father bring those boys back to life for us. But unfortunately it's important for you to know that in order to truly realize the horror of this particular crime. Because the same little boys -- the same little boys playing in the basket, going to John D. Long -- going to Legion Park Lake and feeding the ducks. Those same little boys that were happily riding in those car seats that night. Those same little boys that were strapped in those car seats were rolled into that lake. It's not some faceless empty car. It's a car with Michael sitting on this side in his car seat, and Alex sitting on that side.
    And their mother, who was there to protect them. Do you remember several family members said when those boys were at day-care, Susan Smith would walk in and their eyes would just light up. And you saw the videos too. When those little boys would run to their momma, didn't matter who had them. Walt could have them. But if momma showed up, those boys would run to their momma, because who is going to protect a child more than their mother? No matter where those boys were, be it at home, be it at school, be it in that car, they weren't afraid because they had their mother. And with their mother, nobody could hurt you. Nobody can harm you. There are no fears when you are comfortable with your family and your mother.
    Susan Smith that night struck at the heart of every fear that a child had. We seen the videos. You seen the videos of how that car rolled into the lake. Again, a couple of things that I want to make clear about the video tapes. This shows how the car floated. This shows how long the car floated. The State is not putting this in to say that this is what anybody would have seen that night, because at nine o'clock that night, on October 9th, it would have been pitch black out there. Once those boys went down that ramp, went down in through darkness. When you see the car fill up, that's not what those boys would have seen. That just shows how the car filled up. Maybe the boys heard the water coming in through the car. The defense contends that they were asleep. I submit to you that if they were asleep, which all indications of crying and screaming indicate that they weren't, but if they were asleep, they weren't asleep after this. They weren't asleep after this car hit that water.
    So the light most favorable to the defense, if they were asleep, what do they know? What do they see? When they wake up, they are in the car. And Alex probably knew a lot less. Michael, being a little bit older, they knew their momma wasn't there. They knew that for sure. They knew it was dark. They knew they were scared. They knew they were alone. They probably were crying, probably were screaming, because their mother put her hands over her ears and ran to Shirley McCloud's house. She told Shirley McCloud about this horrible incident down in Monarch.
    Ladies and gentlemen, if the car fills up with water -- and you have seen the videos. And, again, I don't want to stand up here and throw pictures in your face. The car fills up with water, the boys probably didn't see it. They felt it. As you know, the car floated, started going up, and Michael and Alex were strapped in them seats. And it goes up, first water probably hit their feet. Alex was strapped in on this side. As the water came in, his feet, his legs, and then his face. Mercifully they probably never truly understood what happened to them, that their mother had abandoned them and left them floating in the lake. They probably never truly knew that, because that water in the darkness covered their faces. And the car was recovered. For nine days Michael and Alex lay in that tomb of John D. Long Lake, strapped in side by side in their mother's car.
    Ladies and gentlemen, before you even consider any penalty in this case, you have to make a determination. You have to make a determination if there are aggravating circumstances. And the judge will instruct you on this, whether there are aggravating circumstances in this case.
    Two aggravating circumstances that the State is looking at at this time are the death of a child under the age of eleven. I submit that State's Exhibit No. 120 and 121, Michael and Alex's birth certificates, leave undisputed that Michael and Alex were babies. They were children. So before you ever start deliberating, you go back in the jury room, as to each indictment and the aggravating circumstance of a child under the age of eleven, before you even consider what the penalty would be, each of you can sign to that aggravating circumstance, because these children and their deaths are undisputed.
    Next, the aggravating circumstances, two killed by one act. You have answered that in your indictments. So that night when Michael and Alex rolled into the lake side by side, strapped in those car seats, that aggravating circumstance was satisfied. So I would ask you again when you go into the jury room that each of you sign for the aggravating circumstance, two or more killed by one act.
    Ladies and gentlemen, I have said from the beginning that I don't know that I want to try to tell you -- we have had witnesses that have set up here and said they would like to tell you what to do. That's not my province to tell you what to do. What I have to do, and what my job to do, is to ask you to look at the nature of this crime. You have heard a lot of evidence in this particular case. A lot of it has been difficult. We can't turn our head in what Susan Smith did. If Susan Smith is the victim in this case, and I would ask you to give her life. But if after hearing all the evidence, find your common sense to the various walks of life, you determine that on October 25th she went to that lake, got out of that car, rolled those babies into that lake to die that cold slow death. She did it because she made a choice. Then I would ask you to consider death.
    Ladies and gentlemen there a lot ways this case, not only should it be a murder, it should be a theft. It should be a robbery. Because Michael and Alex, and David Smith, and that family, and this community, have had two precious gifts stolen from them. Now there are a lot at firsts that David Smith related to you. Got a tape of Michael's first hair cut. A lot of firsts they won't ever see. First day at school. First day riding a bike. First car. I don't think -- I would be surprised if Walt ever finishes that car, a car that maybe one day Michael would have driven. Case of a lot of firsts that have been robbed from them.
    Michael and Alex were Union boys, and they will never be the football player to grow up to be football players in this community. They will never be the students that grow up to be the teachers. And never be the children that grow up to be parents.
    Because while this is a case of firsts, it's also a case of lasts, because this young lady here determined those boys last meal, those boys last car ride, those boys last breath. She made that choice. For all the selfish reasons, she made that choice to take those two boys lives.
    Ladies and gentlemen, I could stand here and tell you a hundred times how horrible this crime is, how gruesome this is, how wretched it is, but you know all that. You have seen all that. So what you have to do now is to speak, the twelve of you, as the voice of this community. And as the twelve of you, you have to speak as to what the price those two children's lives in Union County.
    Ladies and gentlemen, this is the most horrible crime anyone could ever imagine - a mother severing that eternal bond in favor of her own selfishness. That's the way the State sees the facts. You see the facts that way and say that this is the most heinous crime that you could imagine, that this is the type of crime that is envisioned by the death penalty.
    If you in your deliberations -- and I don't want to insult your intelligence -- but in looking at it in view in your deliberations determine that Susan Smith did roll those children down the ramp, did choose to do so, and did choose to lie about it for as long as she possibly could for her own selfish ends, if you choose that that is what happened in this case, then this case is the ultimate crime and does deserve the ultimate punishment.
    We don't take lightly what you do, ladies and gentlemen. You have heard the facts. I would ask you to bring back a verdict that speaks justice. That's all anybody can ever ask from you. Thank you.
    THE COURT: Ladies and gentlemen, we have been going now for about forty- five minutes, but I anticipate for the next argument also being an additional forty-five minutes to an hour, that that might be a little bit long, so let's go ahead and take a ten minute break, and then we will start with the next argument. Okay. So please don't discuss this matter. And we will come back in approximately ten minutes. Thank you so much.
(The following takes place outside the presence of the jury panel)

    THE COURT: All right, court will take a ten minute recess. We will start back at five minutes to eleven.

 (Proceedings recessed)
 (Proceedings reconvened)

    THE COURT: Mr. Bruck, are you ready to proceed, and Ms. Clarke?
    MR. BRUCK: Yes, Your Honor. I would like a copy of the sentencing verdict form and the aggravating factors form, or the court's copy, in order to --
    THE COURT: We have got a copy.
    MR. BRUCK: Ready now, judge.
    THE COURT: All right. You do have a copy of the form that shows the statutory instructions, is that correct?
    MR. BRUCK: No, Your Honor.
    THE COURT: Mr. Pope, let's go over this one more time before -- I see counsel apparently intends to make reference during closing argument. And as you know, under our law, it would be error to fail to include any mitigating -- statutory mitigating circumstance, even if not called to the attention of the court by one the parties. So let's make sure.
    I have got the defendant has no significant history of prior criminal conviction involving the use of violence against another person.
    Mark, that was going to be changed to read the defendant has no prior criminal -- you can change that. That needs to be changed.
    LAW CLERK: All right.
    THE COURT: It's in my charge, but it hasn't been changed on that, on the statutory instructions. So we will change that.
    But that's No. 1. The defendant has no prior criminal record or criminal conviction at all.
    MR. BRUCK: Whatsoever.
    THE COURT: Or whatsoever I think is the word that we used.
    No. 2. That the murder was committed while the defendant was under the influence of mental or emotional disturbance. And that is statutory No. 2 as well.
    And No. 3.
    And here again, I'm happy to hear from either party on this, but I conclude would not be applicable. That's statutory No. 3. That's not applicable here.
    MR. BRUCK: I concede that, Your Honor.
    THE COURT: No. 4, the defendant was an accomplice in a murder. Obviously that's not applicable here.
    MR. BRUCK: No.
    THE COURT: You concede that as well?
    MR. BRUCK: I concede that as well, yes, sir.
    THE COURT: No. 5, the defendant acted under duress or under the domination of another person.
    MR. BRUCK: We do not claim that factor.
    THE COURT: All right. No. 6. The capacity of the defendant to appreciate the criminality of her conduct or to conform her conduct to the requirements of law were substantially impaired. That one is included.
    MR. BRUCK: Yes, the gender needs to be changed from his to her.
    THE COURT: Right. And then No. 7. You have just included the mentality part and not the age part, which I will.
    MR. BRUCK: If Your Honor please, we feel that the age also, under all the circumstances of this offense, could be taken as a mitigating factor.
    THE COURT: Well, that's fine too. I had it in mine. You had taken it out when you presented yours, and that's why I wanted -- I didn't want to assume --
    MR. BRUCK: No, sir. I took that in error. I didn't realize we had submitted it.
    THE COURT: Age and mentality of the defendant at the time of the crime.
    MR. BRUCK: Yes, Your Honor.
    Your Honor, I must apologize, but I had understood that the statutory -- the nonstatutory mitigating factors in the charge was going to be charged orally, that the court would charge orally, would also be enumerated. And that's why I enumerated them as they were.
    THE COURT: Well, I did intend to charge the jury that these are things that the defense --
    MR. BRUCK: Well, I realize that, Your Honor, but my concern here is that if the jury gets only the statutory factors in writing and --
    THE COURT: Wait a minute. Before we go to that, let's finish. No. 8. The defendant was provoked by the victim into committing the murder. That I do not find under the evidence would be appropriate mitigating circumstance.
    MR. BRUCK: I agree.
    THE COURT: You agree with that?
    MR. BRUCK: Yes, I do.
    THE COURT: No. 9. The defendant was below the age of eighteen at the time of the crime. That again would not be --
    MR. BRUCK: Correct.
    THE COURT: -- appropriate.
    And then No. 10 deals with a defendant who has a mental retardation at the time of the crime. That again would not be applicable. Is that correct?
    MR. BRUCK: That's correct.
    THE COURT: So then that concludes the statutory mitigating circumstances. All right.
    Now, go ahead, what were you going to say?
    MR. BRUCK: Simply that I had anticipated, and I should have made it explicit when we were in chambers, that the nonstatutory aggravating factors that you will charge orally would also be included in the written instructions. If the court were to fail to do that, we would very much exacerbate the problem of creating the impression that the statutory aggravating factors have some superior status to the nonstatutory. And should the jury so conclude, their deliberations would violate the principle in Loggins v. Ohio. For that reason, I think that -- however, whether the court wants to simply enumerate them on -- the way I had thought that it would be done is the same way that it is done in an oral charge, which is furthermore you may consider any other mitigating circumstances which are supported in the evidence. The defendant --these may include the following circumstances which are asserted by the defendant in this case, colon, and then you would enumerate on the factors which you are going to charge orally. In this way, the problem of setting up what appears to be two classes of mitigating factors, ones favored by statute and the other disfavored, would be somewhat reduced. We still feel that no distinction at all should be drawn between them. But I appreciate the court's ruling. However, I think it would make the problem a lot worst if we don't write them both down.
    THE COURT: I'm not familiar with the case that you are reciting. Loggins versus --
    MR. BRUCK: No, Lockett v. Ohio is the general proposition that's been reiterated a dozen or twenty times since then. Simply that the State cannot -- that the defendant must have essentially untrammeled right and consideration of mitigating evidence in a death penalty case.
    Hitchcock v. Florida, of course, is the case that says that the instructions cannot exclude nonstatutory mitigating factors. These instructions do not exclude it, but I would submit that if they give them second class treatment, the effect may be the same. The jury will figure well, they are blowing smoke about these others, but the judge listed the ones that are in the statute, and those must be the real ones. Anything else is probably just some lawyer talking. And that's the -- that's the peril that we want to avoid, because that is not the law, and that is not what the jury should think.
    As I noted in chambers yesterday, there are some various gaps in the statutory list. Most dramatically is the fact that almost nothing good about the defendant, except lack of prior record, is included in the statutory list. And there is a lot of evidence that's good about this young woman.
    So for that reason we think it's very important that essentially that the oral instructions and the written instructions be in harmony in that way.
    THE COURT: Do you wish to be heard?
    MR. GEISE: We would oppose enumerating them. We would submit the written form that goes to the jury should stay as it is. You were going to charge the jury as to those, enumerating what Mr. Bruck wants. We submit the jury would listen to you, listen to what you are saying.
    If you start changing the form now, Your Honor, we oppose that. You are going to charge it. They get the instruction that they can consider anything. You are taking the step beyond that and enumerating what Mr. Bruck wants in your charge. We would oppose changing the form that's submitted to the jury at this time.
    MR. BRUCK: I would just note that Mr. Geise seems to agree that the proposition that I'll argue before is correct and the jury ought to understand it. I can't see any good reason why we couldn't make it clearer. If they deliberated ten hours, your charge would be distant in their memory. These instructions would be before them.
    THE COURT: Well, our court has quite often said that the words should be taken in their plain meaning. And the court -- the statute says the statutory instructions as to aggravating and mitigating circumstances shall be given in charge and in writing. It doesn't say the statutory instructions as to statutory aggravating and statutory mitigating circumstances. So I will just -- where it says "furthermore, you may consider any other mitigating circumstances which are supported by the evidence in this case, including the following, if supported by the evidence," colon, and just put those in at that point.
    MR. BRUCK: Thank you.
    THE COURT: Okay.
    MR. GEISE: Your Honor, that would go in in the written instructions to the jury?
    THE COURT: That would go in in the written instructions.
    MR. GEISE: And it will be the defendant's assertion that --
    THE COURT: Well, I'm going to tell them that. But, you see, I don't want to get too far into that, because I'm not allowed -- they are allowed to consider any mitigating factors that they find in the evidence, regardless of who asserts it.
    MR. GEISE: I understand that, Your Honor, and that's why it's our contention that when you say you can consider anything, that that's what goes on the written form instead of writing down what the defendant's assertions are so that they can stare at it.
    THE COURT: Well, if there is no evidence which would support the argument of a mitigating circumstance, then I wouldn't include it. But there is evidence of the things that they are asking you to include. If the jury chooses to believe it or not believe it, that's for them to do. But these are things that aren't pulled out of left field. These are things that have been spoken to and have been addressed. So I think it's proper for the jury to consider them. And under the way the law is written, I think it's proper to do it. I'll include it.
    MR. BRUCK: Thank you.
    THE COURT: Are you ready to proceed at this time?
    MR. BRUCK: Yes, sir.
    THE COURT: All right. Bring us the jury please.
 (The following takes place in the presence of the jury panel)
    THE COURT: Mr. Foreman, ladies and gentlemen of the jury, we will now continue with closing arguments.
    Mr. Bruck, you may proceed.
    MR. BRUCK: Thank you Your Honor.


    Mr. Foreman, ladies and gentlemen, this is my last chance to speak to you too. And I may take a little longer than Mr. Pope did.
    Mr. Pope told you that either sentence that you impose will be acceptable to the State. And that was a very fair-minded thing for him to say and was the proper thing for him to say, and I wish I could say the same thing. But as you heard from the stand, I represent a family as well as a client who cannot accept either verdict. I mean, they will have to, but they can't. And I feel a lot of responsibility on me right now.
    I identified with what Mr. Pope said, that there has been a lot of evidence in this case, and there have been a million points, and we have been writing them all down and saying boy, we got to remember to tell that to the jury. But I know when I stand up here. I got my notes, but half of them aren't in there. I'm going to forget most of them. Probably forget most of the ones that I have written down. And I'm going to sit down and I'm going to think, oh, I forgot to tell them that. I forgot to tell them this. And I have to tell you that if Susan should be sentenced to death, I will carry that with me for --
    THE COURT: No, counsel, that's not appropriate argument, sir.
    MR. BRUCK: So I'm going to ask you to bear with me for a little while. I told you at the beginning that in opening statement in this penalty phase that I felt a little -- I wish I could just do what you would normally do when you have a problem, and that is to discuss it. And instead of me talking all the time, just ask you what you think and ask you for your thoughts, and we could have a conversation. And I feel like that even more now. And given the evidence that you have heard, I suspect that if we could do that, I could then sit down. But we can't do that, as you know, and so I'm going to have to ask you to bear with me for a little while.
    Mr. Pope talked about the thing that no one denies, and that is that this was a horrible crime. But that's not the issue any more. You decided that Saturday night when you decided, all twelve of you, beyond a reasonable doubt that Susan did what she admitted to doing all along - rolling her car into John D. Long Lake with her two little boys strapped inside and drowning them. And when you say that, you have said all that needs to be said about how horrible this crime was.
    But if that was enough to know what the sentence should be, we wouldn't be here, because the sentence could have been imposed Saturday night when you returned a guilty verdict.
    What more have you learned, really, about this crime since then, about the crime since then, that you didn't know then? Well, you have got photos of what it might have looked like in sunlight, at high noon, on May 24th, maybe. But, of course, that's not what it looked like. And if the sun had been shining, it never would have happened. Those photographs do not show you what Susan saw, much less what the children saw. She never turned around. But if she had, she would have seen nothing but blackness. And that's what a photograph of this crime would look like, if there was one.
    So you have those. And God knows that it was unbearable to look at, those cars sinking, or that car sinking in the lake, so close to rescue. You know, you probably don't need me to tell you this, but those videos are so deceptive in such a painful way, there are divers hovering around the car. And you know it's not true, but you see it on video, and you see it on TV, it must be real. It looks like it would have been so easy to rescue those children, but divers are using life vests. You heard the testimony. It was in eighteen feet of water. And that car covered most of that distance in ten or fifteen seconds.
    So the truth of the matter is, just what Susan said in her confession, I knew it was too late. It was too late the moment that car rolled away from her. Those children could not have been saved. Not by her. Not by anyone at Shirley McCloud's house. You heard how quickly they got down to the lake. And if Susan had run that three-tenths of a mile to the house, and said my children are in the lake, come help me, and Rick McCloud, Jr. and Rick McCloud, Sr. had done what they did a minute or two earlier, and come rushing down to the lake, what would they have seen? They would have seen a perfectly smooth black surface, without so much as a bubble or a ripple, and they would not have known where to look.
    Could she have chased after the car in the water? Of course not. It was already halfway to its resting point within ten seconds, in the pitch black, in deep water. The car may have floated for five, four, three, five and a half minutes. We don't know how long, because we don't know that the conditions were really similar on that night. But even assuming that that re-creation, or simulation, or whatever it was, shows you the time, how could she have gotten to that car? By the time she reached it, if she could swim out in the blackness and find the car, then what? The doors are down in the water. She couldn't have opened them against the pressure. And if she somehow could have, the car would have immediately sunk, because then the water would have rushed in. And in eighteen feet of water, pitch blackness, what would she have done? So the truth is that those six minutes are awful to contemplate, but they do not mean that she could have saved those boys after they entered the water.
    The issue is not whether the crime was bad. You decided that last week. The issue is not whether Susan Smith should be punished, because as I told you in my opening statement, you decided that last week too. That wasn't what you were there to decide. But you decided it by your verdict, because now there are only two sentences - life imprisonment and death.
    And you heard Officer Mungo yesterday tell you a little bit about prison. You know, politicians running for office are always talking about how the prisons are country clubs. But you found out what Susan's prison is like yesterday. That wasn't any speech or anybody trying to make a point. That was reality. That's life imprisonment. And that is punishment.
    That is punishment for anybody under any circumstances. But it is a special kind of punishment for her, because for her, as everybody has told you -- Officer Mungo said she's never heard of anybody that's been on suicide watch for eighteen months -- for eight months. It's usually seventy-two hours.
    Dr. Halleck, Reverend White, Sheriff Wells. What was the first thing that Susan asked for? His gun so that she could kill herself. Phony? Phony remorse? A show of remorse? You be the judge of that.
    Pete Logan, thirty-five years in the FBI. Fooled by Susan Smith? On her knees, sobbing so hard that she couldn't get her breath. They were worried that she was going to hyperventilate.
    Carol Allison. You remember the FBI agent who became too emotionally involved. Phony remorse?
    And Officer Mungo, who didn't see Susan Smith for two or three or six or eight hours, like Agent Logan and Sheriff Wells and Carol Allison. She's seen her every day, just about, for eight months. She's seen her at the cell door every fifteen minutes, and she's seen her on video at a time when Susan didn't even know that the camera was on all the time. She knows. She told you, and now you know.
    But this young woman is in the lake of fire. That is the remorse, the grief, the shame that she feels. And it's not going to go away any time soon. That is her punishment if you show her what is sometimes called mercy. So the issue is not whether or not she is going to be punished.
    The issue, given this crime, and given everything that you know about Susan, and about her family, and about her life, and about what took her to the lake, the issue is what is the best thing to do now. That is the issue before you. And that is what I would like to talk to you about today.
    Now, I want to talk to you for a moment about the -- about the paperwork that you are going to have in the jury room with you. And I would like to show you this form. You don't need to read it now because the judge will read it to you and you will have it, but I want to show you how it's set up. I'll bring this down in a minute. For each indictment -- and obviously there is going to be one sentence in this case, but technically there are two indictments. There are two little boys, so you are going to have to fill out these forms twice to show what your sentence was. There are two pages - part one, part two.
    The first one is the finding of aggravating factors. And all twelve of you have to sign if you find that there are one or more statutory aggravating factor. And Mr. Pope said something, which I agree with, which is you can sign this before you deliberate. You can sign this form on both sheets for both indictments before you start talking about the case, because I agree with Mr. Pope that the statutory aggravating factors, both of them, that the State rely on are proven, obviously. There are two victims. That's one. And they were both under the age of eleven. That's two. So we can fill this part out. You can fill this part out without a whole lot of discussion, and then get down to work. And that's a -- this is actually what your decision is about.
    Page two has A or B, and you fill out one of them. One of them is a decision that reads "we, the jury, in the above-entitled case decide that the defendant Susan Smith be imprisoned in the state penitentiary for the balance of her natural life." And it must be signed only by the foreman. That's one choice.
    And the other is death. And that must be signed by all twelve, and so there are twelve lines.
    I mention this now because, you know, jurors naturally think -- people naturally think there is a punishment for each crime. And so punishment for murder is death or life. The punishment for aggravated murder must be death. And although the judge says that it's not that simple, it would be easy to suppose that the law expects you to impose the death penalty when you find a statutory aggravating factor, or that the death penalty is usually imposed, or it's probably imposed, or that that's -- you know, that you impose it unless you can find some really strong reason not to. None of that is the law. All the finding of aggravating factors -- and Judge Howard's charge will make this very clear to you. All it means when you fill out that first form is that you have a decision to make. All it means is that we have this hearing that we have had for the last week, and that you must decide on the penalty. It doesn't mean anything more than that. And that's just another way of saying what I told you at the beginning of the week, which is that what the right thing to do is is entirely up to you. The law does not tell you what to do. It doesn't even give you much of a hint. It leaves it up to you.
    Now, each of you are on this jury because you assured Judge Howard that you could consider everything - not only the facts of the crime, but also the facts about the person who committed it, and all of the circumstances about her, and all of the circumstances about her family and about this community, and everything that has been testified to from this witness stand. But Mr. Pope, when he made his very capable closing argument to you a moment ago, really tried to pull back from that and just tell you over and over again what we all already know, which is that the facts of the crime are so horrible that they call out for the death penalty, and that's how your decision should be made. And the point was made, as I expected it would be, that the fact that we have brought you evidence about Susan Smith amounts to the claim that Susan, poor Susan, is the real victim, that you should think of everything that you have heard from us and Judy Clarke and me as some kind of claim that Susan is a victim and you should feel sorry for her and therefore you should give her life. Well, I don't know I need to dwell on this too much, but I do want to remember with you what the reason was why we presented the evidence about Susan Smith's entire life, going all the way back generations to show you her bloodline and her genetic inheritance and her susceptibility to pressure, and coming all the way forward, right up to October 25th, and beyond.
    We told you about her early childhood, about the discord and the chaos and the bitterness that was having such disturbing effects on twelve year old Michael Vaughan when he was sent off -- had to be sent off to a residential facility. He was twelve. His personality -- and you heard he had never lived an independent life. He still lives at home with his mother and he's had terrible problems. His personality at that time was pretty much set. Susan was two, and hers was not. That was -- she was wet clay at that time, and she was drinking and you know how little kids do. Everything that was going on in the family. And at first Dr. Andrews described it as just not too different than what happens in really, really bitter divorces. But it began to get worse, and it began to assume -- it began to assume an atmosphere or reality of violence, a threat of death, a threat of suicide, a threat of murder, of Susan's mother. And that was the atmosphere when she was three, and she was four, and she was five.
    Two parents, one of whom we know was depressed. The other whom was described by the counselors at the time Linda as depressed, a house ruled by depression and the threat of violent death and disaster. That was her formative environment. And that was the environment that formed the young girl whom the neighbor Iris Rogers described as anxious and sad at aged five, at aged six.
    Then we told you about her father's suicide. And I'm not going to go over all of the evidence you have heard about suicide, but I think we have all learned a great deal. It is not just a death. As David Cox, the therapist, told you yesterday, it is a kind of death that sows misery and heartbreak ever afterwards. You heard Tomi and Junior Vaughan on the witness stand seventeen years after Harry Vaughan's death still struggling to cope with the guilt and the grief that that death left on them, and they were grown up. They were grown. But Susan was six and a half that morning when Iris dropped her off into an empty house. And she began the struggle that goes on today to deal with how her father left her.
    And we told you about Susan's growing depression in early teens and her obsession with suicide and her primitive childlike suicide attempt. And we told you about the sexual abuse by her stepfather.
    And right now I would like to say a word about Beverly Russell. We heard a great deal about that sexual abuse incident, the incidents, the series of incidents, and how it was handled. And I have to say how it was mishandled. And the reasons that you can draw as to why it was covered up and hush hush the way it was. But I would like -- at least like to say about Mr. Russell is that yesterday he did what a father should do. There has been so much heartbreak in this family. And I want to make it very clear that no one who did anything that had an effect on Susan's life deserved the trouble that this family is in now. And that is one of several reasons why we do not blame anyone else.
    And we told you about the -- something about the circumstances of this -- of her marriage to David; how it began so happily and with such great hopes, and how it turned into turmoil and something of a replay of the marriage between Harry and Linda. And we told you about her love for the children. From witness, after witness, after witness, without a single discordant note.
    And we told you about the deepening chaos of her life during the last weeks, and especially the last days, and the last hours before she and her children were at John D. Long Lake.
    And we told you about her bottomless grief and remorse now.
    And we didn't tell you any of that to make you feel sorry for her. The point of all of that was that those were the facts that you needed to understand what led her to the lake, to understand this crime. That is why we presented that evidence. And if the State had had any evidence about that to present, they could have done so too, but they did not.
    Now, part of the terrible puzzle of this case is something that we all know, and it doesn't have to be proved by witnesses. And that is that mothers who love their children don't just up and kill them for a passing fantasy. That is something about people that is true. We all know that. We start at that. That is a given. That is common sense.
    So it was a very important fact to determine, as best we are able to determine, what is inside somebody whether she loved her children or not. And we began heartbreakingly with the autopsy testimony. And as Dr. Conradi found two well nourished, well cared for, beautiful little boys.
    And then we went back to every single person that either side called, including David Smith. Remember what he told Katie Curic on the Today Show. Dr. Andrews read you verbatim his description of Susan, of Susan, as a mother. They were her heart, just like they were mine. They were her life, just like they were mine. And what David said about Susan and her mothering of those boys is exactly what every single other witness who knew them has said. And if there was anybody to say differently, these very competent prosecutors would have found them and brought them in here. There isn't, so they didn't.
    Now, still, you know, I mean, Dr. Andrews life has been given over to looking at things like this and trying to prevent things like this. You heard she worked at the institute where the donation in memory of Michael and Alex went when money was given to the university. This is her work. This is her field. This is what she does. And so the first thing she looked for was a disturbed mother-child relationship. And she gave you a long list of the sorts of things that an expert like her who has seen hundreds and hundreds of child abuse situations of one sort or another would look for, and she didn't find any of them.
    So you have to answer the question not why would Susan Smith kill her children, but why would Susan Smith kill her children whom she loved, whom she loved dearly, because those are the facts that have been established in this courtroom. The judge will tell that we do not have to establish any facts that we rely on beyond a reasonable doubt. But for that fact, her bond with those children has been established beyond a reasonable doubt.
    So that's the mystery. And to try to solve that, we brought you Dr. Halleck. And, of course, all of the testimony that was introduced -- and I explained to you at the beginning of this phase why we introduced so much background testimony and so much testimony about Susan's mental state at the guilt phase. It was simply that when the claim of motive that she killed these children in order to improve her chances of snaring Tom Findlay, when that was raised at the guilt phase -- it didn't have to be. It had nothing to do with whether she was guilt of murder or not. But the State says that's what they were going to prove. And we could not let that go unchallenged, because it is not true. So we introduced a lot of the sentencing information at the guilt phase. But that information, as the judge will tell you, is still before you and can still be used by you, just as much in this phase as if we had introduced it beginning this past Monday.
    Dr. Halleck looked at the whole history of Arlene Andrews found -- do you remember, Mr. Pope did a lot of cross-examination of Dr. Andrews. We put her on just to establish the genetic information before Dr. Halleck. And she said that she had provided all her findings to Dr. Halleck. And it was all this cross- examination about in, other words, if you have given information that's in error to Dr. Halleck, then his evaluation will probably be wrong too. And she said yes, of course, as he relied on it. I'm sure you were waiting to find out what the information was that Dr. Andrews had that was wrong. So was I. And we are still waiting. The only attack on Dr. Andrews information were those little courtroom tricks that I talked to you about, and I won't go back over the cross-examination about did you talk to so and so, did you know that so and so said thus and such, Ann Campbell and Billy Shaw, and it turned out they hadn't said thus and such at all, and Dr. Andrews was right. And you never heard any more about it. And that -- so the facts that Dr. Andrews relied on and that amazing investigation she did, more than a hundred people and volumes of documents, is unchallenged. That is all the evidence in the case. As I say, we don't have a burden of proving that then. It's the State that has to prove their version beyond a reasonable doubt. That even if we did have that burden, we would have met it, because all the evidence in this case is as I am saying to you now.
    The question in the case and in a way, to some extent, certainly the difference between the State's version last week, at any rate, and what Susan said in her confession is that Susan said she went to the lake in a suicidal crisis, and that she went to the ramp to kill herself, and at the last minute she jumped out and the children were left alone. And the State said no, no, it was all a plot. She schemed the whole thing up. She cooked up a story about some black guy carjacking her, and she did all this to cook up with some theory about Tom Findlay who she had just told about that she was sleeping with his father would turn around and have completely different feelings for her when she was a carjacking victim. That's the State's motive. And they expect you to believe that a woman with a relationship that she had with her children and the unstable and obviously dead-as-a-doornail relationship she had with Tom Findlay would have made that trade in a calculated way. Now, the State doesn't get to just say that. They have got to prove it. They have to prove it by evidence, by witnesses, by things that make sense. And it is your job to determine whether they have.
    Who is Dr. Halleck? He's the only psychiatrist or psychologist that has testified in this case for either side, which is an interesting thing, and I'll get to in a moment. But first of all, who is he? It's obvious from his qualifications that he talked to you about. He's not a vain person at all when I pulled it out of him. He's sixty-six years old. He's been a doctor for forty- three years. And although he works on court cases, and clearly is one of the most distinguished forensic - that is, courtroom - psychiatrists in this country, he treats people who are sick all the time.
    The most revealing thing about Dr. Halleck to me was that at age sixty-six, or up until a few weeks ago, he was running an emergency room service. He was working in an emergency room, with people coming in in all kinds of desperate shape. That's what he chooses to do. He chooses to help people. He would be the doctor that would see eighteen year old Susan Vaughan when she's taken too many pills in her suicidal crisis. He knows that kind of practice. And yet he's someone of such achievement and distinct and impartiality that when somebody came very close to murdering President Reagan, and the guy who did it - John Hinkley - claimed to be insane, both sides within twenty-four hours - you heard his testimony - called Dr. Halleck and said will you evaluate John Hinkley for us and testify. And that's pretty impressive. I mean, he must be quite an expert, when both the United States Government and the defense in the insanity case of the century both called him and asked would you be our expert. But what happened next is even more impressive. He said no. And the reason was that he thought both sides wanted him to say Hinkley is insane, or Hinkley is not insane, and to testify to that in court. And he doesn't think that a doctor should do that. He thinks the doctor should say what his condition is and let the jury decide. And so both sides said well, never mind, we don't need you. And he passed on the insanity case of the century. And the next year the United States Congress changed the law so it would be like Dr. Halleck thought it should be. That's who he is. I don't know how we could have brought to you anybody more objective, more thought of, more able to help you do your job than Seymour Halleck.
    And he went about things in a very smart way. I mean, obviously he was dealing with a young woman who is about the most famous liar in the United States, and he couldn't take her word for anything. But that didn't mean that he could just say I won't talk to her, because she's the only one that was there at the ramp that could possibly say what was going on. So he had a problem. And he described to you in a lot of detail how he figured out whether she was telling the truth about her condition, about her thoughts, about her mental state, about what was going on. And the biggest thing he told you -- I mean, clearly he was drawing on forty-three years of experience, and he was -- he was going about it based on his training. But he was able to explain in very common sensible way how he concluded that she was being truthful. And the biggest thing he told you, and the most important thing, was that he gave her so many chances to help herself and to make herself look crazy. She knew, or she knew by the time he was finished, that all she had to say was I heard voices telling me to do it. And he probed and he probed. Were those really voices, or was that just you having a debate with yourself? And she knew that if she did said oh, those were really voices, that that would be -- that could be a symptom of major mental illness, schizophrenia, which is the disease that most people have when they are found to be legally insane. But she didn't say that.
    What about dissociation? Do you remember he explained the idea of your mind leaving your body and sort of you are doing things, but your mind is completely somewhere else, split off. He gave her a chance to say that. That could be insanity. And, of course, if she were found insane, she would be in much better shape. She wouldn't have to serve a life sentence, much less the death penalty, but she wouldn't say that either. Why wouldn't she? Because it wasn't true, and she wanted to tell him the truth. And that is how Dr. Halleck -- that is among the ways that Dr. Halleck concluded that she was being truthful with him.
    Another way was that she was always trying to make herself look better than she was really feeling at the time. She was even then, and in all the trouble she was in, knowing that this was a psychiatrist that I had asked to see her, to help us defend her, she still wanted him to think that she was doing better, that she was wasn't as depressed, she wasn't as miserable, or she wasn't as suicidal as she really was. And that all led to him to conclude, as I think it would anybody using their common sense, that no matter what lies she told during those terrible nine days, she was being truthful now. And Dr. Halleck concluded after reviewing the whole history, everything that I have just passed over quickly now, that she was in a depressive crisis, in a depressive episode. And in the irrationality of that moment she made the irrational choice of suicide.
    Now, Mr. Pope says choices, choices, choices. Yes, she made choices. But the choices did not make any sense. They were irrational. Harry Vaughan made a choice, too, to kill himself. Put that shotgun between his legs and prop it up against his heart and blow his chest out. That was his choice. He chose to do that, but it didn't make any sense. This is who he left behind. His heart. And he knew that, I suppose, in a way, somewhere in his mind, when he pulled the trigger. And as he was dying with his chest in shreds he changed his mind, like Susan changed her mind. Suicide is often that way. It is ambivocable. The body of the person wants to die but wants to live at the same time. The choice of a depressed person in crisis, in a suicidal crisis, does not make sense, and there is no point in trying to hammer that square peg into any round hole to make it fit. It doesn't make sense. It was irrational. And so was the terrible tragic thought that took over her mind that if she was going to die, her children needed to die with her, and then they would all be in Heaven together. That does not justify what she did. It doesn't make it, as you found by your verdict, as Judge Howard instructed you, any less murder. But it's what happened. That's what happened.
    Why did she leave? We will never know. Dr. Halleck gave you his best estimate, his best guess. And some of it is common sense. It is easier to roll a car down a hill than it is to make yourself sit in it while you do it in the dark, no matter what your state of mind is. The mind wants to die but the body wills to live. We all know that. That's common sense.
    Why in the state of mind she was in did she think, as she sometimes told Dr. Halleck, that when she jumped out the children were with her, and of her, and her heart, and her life. That when she jumped out, that the children were safe too? Sometimes she told them that she thought that's what she thought. And other times she didn't know. She didn't say that. And he concluded perfectly logically not that she was trying to hide that or conceal that, but that she truly does not know what she was thinking at that moment. If she had wanted to make herself look better, if she had wanted to lessen her guilt or to get people to feel sorry for her, it would have been so easy to say I didn't know the children were there. I was under the illusion that the children were somewhere else, or that they were coming out with me, and it wasn't until somewhere or some other point that I realized that they were gone. Who could have said any different? She was the only one there, but she didn't say that. In the end she just acknowledged, and Dr. Halleck found that that memory is not there. That the turmoil and the confusion and the fear and the anguish blotted all that out. You were left piecing together the clues.
    Well, Mr. Pope gives you a theory about mental state, about intent, about what Susan meant to do, what was in her mind, what her intention was. But now that all the evidence is in, that theory is really just a lawyer talking. Where is the evidence of that?
    We presented Dr. Halleck, who explained psychiatry behind these conclusions and explained --he talked about depression. He talked about suicide. Who did the State call?
    There was a crucial moment in this case that went by so quickly that if you blinked you missed it. There was a break yesterday afternoon about 5:30. And when you came back in, I stood up and said that's the case for Susan Smith. And you may not have realized this at the time, but at that moment the State had an opportunity to call as many witnesses as they wished to rebut everything that we had presented over the last two or three days. They could have started calling witnesses that moment, gone on until the end of the day, and we could have come back this morning, and they could still be calling witness. And they could be calling witnesses tomorrow, if they had any to call. And if they had a psychiatrist, whether it was Dr. Halleck's attainment or not who could go through this evidence and show where he was wrong, and where the facts he relied on pointed somewhere else, if they had a psychiatrist, or a psychologist, or any sort of expert who has seen a lot of these cases before and could say no, when you look and you piece these things together, it could really be that she did it for Tom Findlay, and that there wasn't any suicide about it, that was their chance to call that person and have you hear what he or she had to say and evaluate their testimony. If they had any ordinary people, not experts, but people who have known Susan Smith who had any different information than what you heard from all those defense witnesses, that's was their opportunity. It's called rebuttal or reply. We wouldn't get to present anything more normally after that. That was the last chance, and the State has it, under our law. And you saw what they did with it. Mr. Pope stood up and you could barely hear him. He said no, that's all the State has. And the case was over, and the State had rested without any reply at all.
    Now, you know, I have been talking to you about we have shown you this and we have shown you that, but it's the State that is supposed to do the showing before someone gets sentenced to death. And what new did they show you in this case, in this phase of the case?
    Mr. Geise, at the beginning of his opening statement, told you with great confidence and vigor that the State was going to prove to you this motive, this Tom Findlay -- that she killed the kids for Tom. But by the time even that phase of the case was over, and we had presented just some of the evidence about who Susan Smith really was, and what was really likely to have been going with her that night, it was -- Mr. Pope was very careful to back away from that and say well, actually, we don't have to prove a motive, and the motive doesn't matter, and don't worry about the motive. And, indeed, he was right, and Judge Howard charged you that the State is not required to prove motive. But they are required to prove it now. I don't mean legally they are required to. They are required to by common sense, because they are required to prove to you that this crime, and this young woman, and this disaster that happened at John D. Long Lake that night should be punished by death. And they still haven't proven it. And they haven't proven it, not because the lawyers didn't do anything or they didn't do their homework. The State has prosecuted a wonderful, wonderful case. These are two excellent lawyers. And the State has spent a huge amount of money presenting every bit of evidence that could possibly be presented to you. They have done everything that they could do. The reason they haven't proven it is that it ain't so. And when the truth isn't there, there is a limit to what a lawyer can do. That's why they haven't been able to prove to you that she did it for Tom. Instead they take little, little bits and pieces of evidence out. They are still telling you about that comment that Susan Brown made on October the 17th, the sort of the comment that every single mother with two tiny little children is sure to have said out loud dozens of times during a week I wonder how my life would be different if I hadn't married so young and had kids. There is still flogging that now, even though Susan Brown told you last week that it didn't mean anything to her then, and it doesn't mean anything to her now.
    And then they go through this selective chronology. What else did they have? A great deal of attention about this one remark that Susan is supposed to have made to David. He remembered it as being on the way over to Toney Road from Shirley McCloud's house about don't get mad but, you know, Tom would be calling, something like that. Well, this is the -- Tom is someone she knew from Conso. Friends from Conso had already come to be with her at Shirley McCloud's house. She knew that people were going to be coming around. People were going to be gathering. This is a small town, and that would be normal. But one of her friends from Conso was somebody that David knew, because his girlfriend, as you heard from Dr. Andrews, had actually been following and stalking Susan. Susan was seen. And what about the last boyfriend that David caught with Susan? He beat him up. So what would be more natural than to first of all expect that among the people that she is working with day in and day out that Tom Findlay would also, along with everyone else from Conso, be calling, and that he might ought to say something early on to David before something ugly happens. And this is proof of a plot to murder her children?
    And I could go on. Judy Clarke talked already with you, and I don't want to bore you by going through the same points again. I think you could see what was wrong with this theory then. And it certainly hadn't gotten any stronger now. The State really -- I mean, they tried. They certainly took a shot at it. There was the wedding album and the clothes. And I think the theory originally was that, you know, this was sort of a coffin for her life as a mother. She was going to throw everything -the wedding album, the maternity clothes. It turned out they mostly weren't maternity clothes. They belonged to all different sorts of people. And it really proved is the wedding album was, you know, something that she brought to work, and with all the other young women they were passing around that wedding album. She tosses it in the trunk and never takes it out. Her car was a rolling junk yard, like a lot of our cars, I suspect, are. And, you know, that sort of -- these sort of fits and starts of trying to prove something, and, as I stated, kind of petered out. In the end they never even mentioned it. In the closing argument, they didn't mention it again today. This is all known as circumstantial evidence. You had an instruction on circumstantial evidence from Judge Howard before, and he's going to charge it to you again, because the same rules apply.
    I would like to tell you a little bit about what that charge means, because it's given in sort of legalese, and it's really not entirely clear what he's saying. I mean, I don't blame Judge Howard for that. These were just the instructions that people give. But what he's going to tell you is that there is a test for circumstantial evidence. To make it clear with an example, you are driving along late at night and you really tired and you pull over to the side of the road to go to sleep, because your eyes are beginning to close and you are afraid you are going to fall asleep at the wheel. And the next thing that you know as time goes by, you have been asleep, there is a policeman at the door and shining a flashlight in your face and he's arresting you for drunk driving, and you haven't had anything to drink, and you can't figure out why. And you ask him, and he shines this flashlight over on the shoulder of the road and there is some beer cans on the shoulder where people toss them. Evidence of the crime. Circumstantial evidence that you pulled over and went to sleep because you had been drinking and there are all the beer cans to prove it.
    Now, we don't convict people in a court of law, much less sentence them to death, on circumstantial evidence like that. And that's what Judge Howard is going to tell you.
    The test is this. That when the State relies on circumstantial evidence to prove something about the circumstances of the crime, they first of all have to prove the circumstances itself; that is, the beer cans were really there. But they also have to prove that there is no other reasonable explanation for why those circumstances are the way that they are. No other reasonable explanation.
    Now, in the beer can story, there is an obvious explanation, which is that people litter as they drive down the highway, and somebody else could have thrown those beer cans there. But the really important part of what Judge Howard is going to tell you is not that. All of that is self evident. It's that when a reasonable explanation can be found that favors the defendant, you don't just give those circumstances less weight, or downgrade them, or sort of move them to the back of your mind. You are required by law to throw them out of the case completely and give them no consideration whatsoever. That is the instruction. You cannot rely on circumstances for which there is an innocent reasonable explanation. You cannot rely on them at all.
    Now, I want to underscore that rule, because the State's case is entirely circumstantial for why Susan Smith should be sentenced to death. It is all based on little stuff, like wedding albums, and chance remarks, and Susan thinking that Tom Findlay would call and not wanting David Smith to be mad. Even though her interest in having Tom call seemed to have faded out almost immediately and was never mentioned again over the nine days. She did it for Tom, and she had certainly forgot about it pretty quick. Those are circumstances for obvious alternative explanations.
    Now, this rule about circumstantial evidence reflects a lesson that our legal system in England and here has learned the hard way over centuries, which is circumstances can lie, and innocent people can be convicted, or even executed, in error based on circumstances like that. And that's why the law says that if the circumstances don't really prove anything, you throw them out of the case. They are dangerous. You don't mess with them. You leave them alone. And that is what the circumstantial evidence charge that Judge Howard will give you requires you to do.
    Now, Mr. Pope talked about choices. And, of course, for whatever reason and no matter how tangled and irrational and hopeless her thinking, she did make some kind of choice. And that choice will haunt her for the rest of her life, which, if you show her some mercy, will be spent in prison. We don't deny that a choice was made, and that it is a choice for which she's responsible. Susan has never denied that. Who is the doctor that said she was not insane? Our doctor. She has never denied responsibility for this crime. And yes, she made choices.
    But the person that made the choices that the State wants to describe - the manipulator, the callous schemer, the person who constantly craves attention this strong willed person, the person that moves people around like pieces on a chess board -that person has been invented out of whole cloth. The State has not found one single witness to put their hand on the Bible and swear that they ever laid eyes on such a person - certainly not such a person in the form of the Susan Vaughan Smith. That person is an invention of a couple of very good trial lawyers. And that's all she is.
    You have this chronology here, this map, but there are this huge gaps in it. This is -- you know, the State's job is to present the evidence that will really help you make an accurate choice. But we get onto the night of October the 20th, and according to this, nothing happened. Well, what do we know really happened? That was the night when Susan fell asleep on the bed with Michael while David was there, and David went into her purse and found the letter from Tom Findlay. And he and his girlfriend, who had been following Susan, took that letter out, made a xerox copy of it, and snuck the letter back into the purse. So that's what happened here in this blank.
    Now, David, I'm sure, at some level -- I mean, David loved Susan and Susan loved David, and maybe in some way in his memory he thinks now that he really hoped to get back with her at that time. But the truth of the matter is that he was having his girlfriend follow her to get evidence on her at that time. And that's -- those are the facts.
    And the next morning another blank. Nothing happened, according to this prosecution exhibit. But we know what really happened was that David came over, was nice to her, although he had -- she didn't know, but he had the letter from Tom Findlay. And he was nice to her, and he cleaned the carpet, and then he had sex with her, and then he began to bring up what he knew from the letter, that she didn't know he had seen, and led her to believe that her phone was tapped or that he was somehow spying on her or spying on her thoughts, and tricked her into admitting much more than he knew and much more that was in the letter. She admitted to him that she had had a sexual relationship. And you can construe it however you want - that she was being used sexually by the head of this big company, or that she had snared him in some way, whatever it was - and use your common sense about the nature of that relationship. But whatever it was, she admitted it. And ah-hah, he had her good then, and he was going to tell.
    A lot Susan's problems were somewhat imaginary in the sense that she thought they were bigger than they really were. But this was a problem that was really pretty big in reality. She was going to lose her job. She was going to be disgraced. What would happen to her? She had two little children. She would, she felt, be all alone. And this is when panic begins to set in.
    Now, please don't think that what I am telling you in relating these facts that are in evidence is that David Smith shares any of the blame for the deaths of these children, because I do not think that. God knows Susan doesn't think that. And I am not saying it. Like everything else, I'm only talking about these things, because we have to understand, if you are going to make the right decision, what led Susan to the lake.
    Okay. So this is the day when nothing happened, according to the prosecution. You know now from the evidence that this is where this --really where this crisis really started.
    And then we have Sunday, another day that nothing happened. Nothing happened that fits the State's theory. But this was the night that Tom had this conversation with Susan, who was really becoming unglued. She thought that David had tapped her phone and knew what she was thinking, and he knew all kinds of things. She wanted to tell Tom that she had made this terrible admission to David about Tom's father. But, of course, Tom didn't know anything about this. So in the end what she ended up saying was that she had a relationship with her own stepfather, which Tom had -- because Tom was saying well, what is it? What is it? What are you concerned about? So she admits about Bev Russell. And her world is further unraveled and closing in on her and started to blast.
    On Saturday, a day when nothing happened, she had called the phone company and wanted the phone company to come and check her line. This was real. She didn't just say later on that she suspected her phones were tapped. She thought that then, and you heard proof of it.
    And then Monday, a day that nothing happened, except it says Hickory Nuts, the phone man actually came. Of course, there was no tap, because David knew all about Susan's life from a letter that he had stolen from her, that she did not know anything about.
    And then we come, of course, to Tuesday. That was what was unraveling. That was what was weighing on her. And by Tuesday she is in such distress and so unable to cope and so unable to make sensible decisions, but knowing that it wouldn't be long now before everybody knew what a mess she had made of her life, the kind of mess as you heard from witness after witness it is not very surprising among survivors of incest. Does that justify it? Does that mean she didn't make a choice? No. But she made the sort of senseless pathetic choices that young women who have been where she has been through often make. Is that a defense? No. Is that something that you need to know? I think probably so.
    And so we are coming up on Tuesday night, and she makes one desperate inane attempt after another to somehow seize control of the situation, first telling Tom that she slept with his dad. He reacts the way any person normally would. Then going back and wanting comfort from him, and he repels her. Again, it's pretty much the way that you would expect someone to under these weird circumstances -trying to give her some reassurance, but at the same time the message is get away from me. And then one really helpless attempt to come back and say I was just kidding, as if you can ever take words like that back. And by this point it's like get away from me. Those weren't the words he used, but that clearly was the message he gave. And at this point she begins to snap - not yet on the outside, but on the inside.
    Mr. Pope had made a big point about sort of how convenient that she was only depressed when she's alone or she's only -- or she has this mask. I think you know that there is nothing implausible about that at all. Toni White, the reverend who is here because she knows Susan, but gave you such a good description of what it is to be depressed and to have a competent happy face in the world, and you think that everyone is as miserable as you are and they also are just putting on an act. Because when it's inside your own mind, and you don't know what's wrong with you, and you don't know that anything is wrong with you, and you have never had treatment, and you have never had medications, how are you supposed to know that something is wrong? You just think that you are supposed to struggle. You just think that's what life is - a sad, miserable, scary, wretched world, and everyone else seems to be coping better than you, so that really proves how wretched and miserable and unlovable you are. Well, that's where -- that's where she lived. That's what it was like to be Susan Smith. And now the very valiant nature of her struggle, that heroism, you know, that she -- that she mustered to put on that face and to be cheerful and outgoing and loving to people is wrapped around her neck as proof that she wasn't depressed.
    So Mr. Pope keeps saying she could have reached out, she could have reached out, she could have reached out. Why didn't she. Well, as a matter of fact, she did. Did she reach out to David? Well, no. I mean, granted, he said can I come over. But this is the person with whom she had had this horrendous conflict on Friday, and he had gone away mad the night before because he had come back over and wanted to sleep with her. And this time she said no. Is that where she is likely to have gone for the comfort that she needed? That's probably understandable that he said -- she said I can't talk to you about it.
    Her mother called, and she did not turn her mother away. Her mother said she would come over, and there was back and forth about what to do. And in the end it was decided that she would go to her mother's house for what she needed, which was what she often does, because she is so dependent on her mother, just like a little kid. Dr. Andrews said she stopped developing at the point. She grew up, but in many ways she never grew any older than she was when she had her kids. And she still goes to momma's all the time. And that is what she started to do this time. And there is the pictures of the diaper bag. She packed the stuff for the kids. She was going to bathe the kids at her momma's house, and those things are in the car. They are in the car. That's where she was going. She was not going to murder her children. She was going to her momma's. But her momma wasn't going to be there for her yet because she had to go to a T-ball game of one of Scotty's kids. So there was a time gap. Susan waited a little while and then she started driving, and then she was crying, and the tears were streaming down her face, but she didn't want her momma to see her like that, so she kept driving. And the blackness came down upon her, and her world collapsed inside her mind, and we know what happened after that.
    Then she lied. Now, if Susan hadn't lied, you could imagine how this case would have been different. We would not be here. She's on trial for her life. Horrible as this crime was, it is not the crime why she is on trial for her life. It is the lie. We have told you several times that no one justifies or excuses this lie. It was hurtful, and it was wrong, and she should not have done it.
    But it is something else that you must got to understand, as best you can. And it is not that hard to understand. This is a family that puts a premium on privacy, on keeping things secret. And there it turned out to be a lot of secrets. Little six and a half year old Susan Vaughan had this whole sense that there was something secret about what had happened with her father's death. It was not talked about. She cried alone. She mourned her father alone, just as she would soon mourn her children alone, in secret. Bev Russell described going into that room and finding her collapsed on the toys over at the Russell's on the first day after the children died. She was mourning those children.
    Do you remember the cry that Margaret Gregory heard when she first arrived at the house, this mournful, most mournful wail that she had ever heard. It was Susan in the bedroom mourning her children, but she could not help. Why couldn't she help? Well, I mean, she could have, and she eventually did, but why would it have been so hard? Well, it would have been hard for anybody to say what she had done. It would have been harder for someone who loved your children so much and were so enmeshed, that they were the only success in her life. They were all of her identity. They were all she was. It is wasn't ugly and awful and disgusting and hateful, according to her. And she had just destroyed that. What was she to do? Well, what was she to say?
    And remember the times she told before. She told on her stepfather. The State would have you believe that that was some kind of manipulative thing to get attention. But what was the real effect? It was humiliating. It was embarrassing. It was a nightmare for her. She brought shame upon her family. She was told by her mother that she would ruin his political career, that the whole thing was hushed up. To a remarkable extent you heard from Jenny Ward, it was hushed up. She told, and nothing but terrible shame and pain and guilt and heartbreak came down on her. That was Susan Vaughan Smith's experience about telling the truth.
    And then there was a much stronger reason for why it was so hard to tell. And you see that reason from the witness stand in witness after witness. Susan could not bear to do anything to hurt her family. And she had just done something that would reduce all of them to a rubble of pain and heartbreak, such as neither you nor she could possibly imagine, and what was she supposed to do? I told you, I used the analogy in opening statement that it was like she was standing on the end of a diving board over -- twenty feet over a concrete --an empty swimming pool that had no water in it, and she knew that she was going to have to do a dive face first into that concrete. She knew she had to to do it, but she didn't want to, and she waited as long as she could. But when I listened to these witnesses in the last couple of days, I realized that that isn't quite the right picture, because the real picture is that every person that she loved in the world was standing ahead of her on that diving board. And in order for her to dive off, she had to push them first. And that was what telling meant. And that was not disordered thinking. That was not cognative distortion. That was not mental illness there. That was real. That was really the situation. And is it any wonder that she hesitated and hesitated and hesitated? And while she hesitated, she had to do something, so she went into the happy face, or in this case, the victim face mode. She told a story that had so many holes in it that within minutes law enforcement knew it was fishy, and within hours knew it was really fishy.
    If the country, if the people watching on TV, had known what the people close to Susan, the law enforcement folks had known, no one would have been fooled more than overnight. This wonderful story, this tremendous ruse, this fabulous hoax. She had no explanation for why she -- no explanation that made sense for why she was on that road that night. She had thought it out ahead of time, she would have been carjacked on the way to her mother's, where she was supposed to be, instead of on the way to Mitch's, even though she was coming and he wasn't home, and on and on. Things that Judy pointed out to you at the last phase of the trial.
    This thing was indeed thought up as she ran up the road to Shirley McCloud's house. And that's exactly where she thought of it. And that's why it had so many holes in it. That's why it was so easy to see through so quickly.
    The Wal-Mart. She picks the only store that has greeters, as you heard from the sheriff, and it turns out that greeters knew her and knew her kids. She had had ten minutes to think this thing up, ten calm minutes, she would have been a little better than that. But she made choices and now she's going to have to pay for them.
    And I guess the last thing I want to say about that is that you have a choice too. You have a choice too. But your choice is made on the different conditions than hers was. The one thing, your choice is made in daylight. And it's made with the help of eleven of your neighbors. And you have as much time as you need to make your choice. If Susan had had five clear minutes to think, if she had sixty seconds of clear thinking, she would not have made the awful choice she made. You have as much time, as much help, as you need.
    One of the most unbearable things about this trial to me was the moment when Dr. Halleck said she's on Prozack now, which is an antidepressant drug. It's been very effective in treating depression, and it has somewhat alleviated her symptoms of what's now major depression. And he said had she been on Prozack then - and millions of people are - this probably wouldn't have happened. This probably wouldn't have happened.
    You have a choice, but you can make a better choice than she made. I guess that's what it comes down to.
    Now, David Smith testified. And I agree with Mr. Pope that that was about the most unbearable thing that any of us have seen in this courtroom. Of course, the victims' families sit on both sides of this courtroom. And it's not going to help David for his family to crush what's left of the hearts of the people on the other side.
    But I still want to say something about David's testimony. If any of us who have children have the experience, when you have a child, your heart is no longer your own. It goes out in the world, and it is helpless. It is as vulnerable as your little helpless children. And that experience of having a child, having children, is the greatest joy in life, but it is also the greatest fear, because your heart is so easily hurt and it is so hard to protect it. And when David was on that stand who in this courtroom didn't feel that anguish for him when he said "I didn't know what I would do." Who hasn't had that thought about their own children. If something happened to my child, I don't know what I would do. I don't know of anyone that wasn't moved by that.
    But now you have to ask what do you do with that? Did you understand him to say -- did you understand the meaning of that terrible pain to be that he would feel better, that it would help the situation, the best thing to do for him, the way to comfort him, would be to sentence Susan to death? That's not what I heard. I heard something different, which is that this was his chance to remember Michael and Alex in a way that meant something. And he was entitled to that moment, as painful as it was, and it was right and proper and fitting that we should all have been there to witness it. In a way, I felt, on the other hand, that there was something else very important going on to which we are all intruders, because on another level the person who needed to hear David was Susan. I don't know if you were able to take your eyes off of him long enough to look at her during that testimony. But if you did, you know what I'm talking about. It was as if there was no one else in the room but those two. And David's testimony was not so much about her punishment as it was part of her punishment. And a part of her punishment that she will carry back to her prison cell, regardless of what your verdict is, and that she will carry it with her as long as she lives.
    I could talk to you more about the evidence. I have been talking to you a long time already. You heard it just as well as I did. So I think I'm through with that part, with the facts that you heard, but I do want to talk to you a little bit about how to approach from your decision.
    This Bible has sat on that desk for the whole trial. And each one of you put your hand on it before voir dire, and every single witness put their hand on it. And I would submit to you that it may be time to look inside and see if there is anything in here that bears on the decision that you have to make. You may not have realized this before, but there is a death penalty sentencing proceeding in the Gospel. It was reported by a court reporter whose name was John. Now, he didn't have a machine like Mr. Watts does. It's not a verbatim record, but he took down enough so that we have a very good picture of what happened in this trial, and I would like to remember it with you. I think you probably all know it by heart.
    And John's record of that trial reads like this. Jesus went unto the Mount of Olives. And early in the morning he came again into the temple and all the people came unto him and he sat down and taught them. And the scribes and pharisees brought unto him a woman taken in adultery. And when they had set her in the midst, they say unto him master, this woman was taken in adultery in the very act. Now, Moses in the law commanded us that such should be stoned, but what sayest thou?
    And then John drops out of the verbatim transcript and explains what was going on. He says this they said tempting him that they might have to accuse him. And the background to that is that the law that governed -- the criminal law of the City of Jerusalem at that time was the Old Testament, and it was written as a Bible. And it was written in the Bible that the penalty for adultery was death by stoning. And if anybody said otherwise, they were committing the crime of heracy, a blasphemy. And that was a capital crime. And the people that had asked him that question wanted him -- they thought they had him pegged. You see, they thought that Jesus was -- I guess nowadays we would call it a bleeding heart liberal - somebody who doesn't have any concern for the rights of society but only cares about the poor criminal. They thought they knew --they thought they could predict what his response would be. It would be something along the lines, or maybe he was one of the members, one of these organizations that doesn't believe in the death penalty, like a social worker. And that he would say something like well, I know it says that in the Bible, but that's really a kind of a steep punishment for adultery. And I don't really know if that's -- if that would be the right thing to do. Why don't you just, you know, do something else, or give her another chance. And had he said that, that would have been a capital crime. That would have been blasphemy. That would have been denying the law in the Bible. But that's not what he said at all.
    Instead of contradicting what you law required, he said this. The first thing he said after they put this trick question to him -- the first thing he did, he stooped down and with his finger wrote on the ground as though he heard them not. So they pressed on. So when they continued asking him, he lifted up himself and said unto them he that is without sin among you, let him first cast the stone at her. And then he stooped down and wrote on the ground. And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last, and Jesus was left alone and the woman standing in the midst.
    Now, of course, we know the rest of the story of Jesus. But we don't know the names of any of those people that he spoke to that day, the ones with the rocks in their hand ready to carry out the death penalty that was commanded by law. We don't know who they are. We don't know their life stories. We don't know a thing about them. They are vanished in the midst of time. And we only can guess. But we can guess what happened next for them, because they had gone to the temple to stone this woman, and they hadn't done it, and they had gone home presumably that night and they saw their friends and they saw their neighbors. And don't you know that people probably asked them what happened? I bet you really gave it to her. And the response would have had to have been well, no, actually we didn't. And then the next obvious question would be well, why not? Didn't she really do it? And the response would have had to have been oh, no, it wasn't that. Wasn't that. She was caught in the act. It was beyond a shadow of a doubt. She did it all right.
    Well, what's up? Why didn't you do it? And then you can imagine the sort of the awkwardness that was followed, how hard it would be to explain. Well, I don't know. We were going to do it, and everybody was ready to do it, and -- well, there was this, you know, preacher there, and he said some things and it didn't really make that much sense, but he wrote on the sand and everything. I don't really remember what happened. But it's just --everybody just kind of changed their mind and it didn't seem like that good of an idea. And anyhow, look, we didn't do it, okay?
    Don't you think that's sort of how the conversation went? And that was that. And those people probably went through their lives wondering if they had done the right thing; wondering if they had maybe failed in their duties as good citizens for the City of Jerusalem, whether they stood up for law and order like they should have, maybe whether they assured their duty as citizens and jurors. Of course, we know that they didn't. They didn't at all. We know what happened. We know who touched their hearts, and how, and why. But they didn't know that. They were just ordinary people. There was no explanation of what was happening that they could have. It would be years before the Gospel was written.
    Well, there were some differences between the procedure that was followed and the law that had to be applied at that sentencing hearing in the City of Jerusalem nearly two thousand years ago and the law that Judge Howard will give to you in a moment. And I would to mention them, a couple of those differences. One is that your decision must be unanimous. At the temple that day everybody had their own rock, and anybody who chose to do it could throw that rock at that woman and smash her with it. And, therefore, it was -- in order for her to live, everybody had to decide not to do that.
    Your responsibility is a little different, because your verdict for death, for death, must be unanimous. In other words, you each have a stone. There are twelve in all. But no stone may be thrown unless all twelve agree. And what that means as a practical matter, you know, each of the people in front of the temple that day were tested for each of them. Individually all by themselves passed that test.
    The test that the law imposes on you is a little bit different, because death cannot be imposed unless each of your names appears on this verdict form. Which means that, unlike the people there that day, it may not be that all twelve of you will be tested. It could be -- I don't think this will happen, not from the evidence that we have heard, but it could - it could happen - that the form will come to you with nine names already on it, already signed for death, or ten, or eleven, and only your name is needed to write the verdict for death. That could happen. And if that does happen, then perhaps the other jurors are not being tested with you at all. And perhaps only you will be tested and the other eleven will be part of this test.
    Now, I guess could you say that wasn't really much of a test, and they knew who on earth could think that you should be stoned to death for committing adultery? Well, that may seem obvious to us today, but it wasn't obvious then. It wasn't obvious then. And there may come a day when our understanding of mental illness, and of suicide, and of depression, and of what's fair and what's not, advances to the point that it will be obvious that Susan Smith should not have been sentenced to death. But apparently it's not obvious to everyone now. And that's why this is a test. If it was easy, it wouldn't be a test.
    One thing that's not present in the transcript, according to John, of that trial is any indication that a prosecutor was there, much less the prosecutor of the ability of the one that you just heard. And who knows had there been one reminding people of the harm to the community and the terrible heinousness of the crime and horror of what had been done. Who knows if the results might have been different and that that woman would have died under the pile of rocks. The whole episode would have been just one more millions of episodes of man's inhumanity to man never would have made the Bible and none of us would have ever heard about it.
    But what all this means as a practical matter has to do with the instructions that you will hear from Judge Howard. He will give you the aggravating factors. And you will have this both in writing and orally from him. He will list the aggravating factors which you know about, and he will list the mitigating factors. Mitigating is just a word that says in favor of life. It means in favor of life for whatever reason. He will tell you that you are not limited to the mitigating factors that he and I have been able to think of in the evidence. But you can consider any reason for life at all that you think is fair.
    And then he will also tell you that you can impose life for no reason at all. That is the law. It doesn't really mean for no reason at all, because no one would do something for no reason at all. It means for the sort of reason that you can't express, except you feel in your heart that it's not the right thing to do. The law recognizes that now as it did not in Jerusalem two thousand years ago. The instructions in a way give you permission to do what those jurors that day did. They didn't have facts of the crime that made them think that the law didn't apply or that death shouldn't be imposed. They just realized because they had heard a lesson about humility and the limits of human judgment, and they saw this woman, and they knew in their hearts that that lesson applied to this situation and they didn't take her life. And they couldn't have said why. They couldn't have explained it, but it felt wrong.
    What that instruction that you will get from Judge Howard means is that if it is nothing more than the prompting of your conscience and the dictates of your heart that makes you hesitate, that makes you doubt, that makes you wonder whether the death penalty is the right thing to do, then you are to listen to that, and that is your decision. That is not violating the law. That is not violating your oath. That is following the law. That is being faithful to your oath.
    I've talked much longer than I thought I would and I'm almost done. I apologize. I just want to say one more thing to you. I've been Susan Smith's lawyer for a few months now, along with Judy Clarke. And as you know from the witness stand, it's been our responsibility to try to guide through a family in the worst sort of trouble that any of us could ever imagine a family being in. And anybody who has been anywhere near this awful disaster cannot help but have the overpowering desire to do something --to do anything to lift these peoples burden just a little bit. But most of us can't. There is really not anything that we can do.
    I have to say that, although you didn't ask for this job, and it's been long, and it's been hard, and I know it's been draining, but I have to say that I do rather envy you, because the twelve of you can do something. You cannot make things very much better, but you can bring them a little bit of blessed freedom by your verdict. And that's not something that really anyone else could do, much as so many people in the courtroom wished that we could. But you can.
    Judy and I have watched over Susan, and now it is time to entrust her to you.
    I would like to ask you to watch over her family, whose broken hearts are now in your care.
    I would like to watch over Wendy, who told you yesterday how she does not know how she will tell any more bad news to her little boys.
    I would like you to watch over Iris Rogers, who still wonders about the day she let Susan off to an empty house.
    I would like to ask you to watch over Billy Shaw and Debby Green and Kay Dillard, who still wonder if there was something -- do you remember Kay Dillard yesterday? If there was something different they could have done.
    I would like you to watch over Jenny Ward, who did her job, but it turned out that just her doing her job was not enough - the DSS person.
    I would like you to watch over Leigh Harrison, that very poised young woman - Susan's cousin, really more of a sister - who testified in the first phase of the trial, and talked about how she had always worried about Susan. But when she had children, she thought she would be okay, because the children at last were the anchor for her. And don't you know that now Leigh wonders what could I have done.
    I would like you to watch over Officer Mungo, who is a professional, who is a correctional officer, who is not going to come in here and give you her opinion. But you knew from listening to her she hopes for Susan. She hopes for the best for her. And Susan, whatever your verdict is, will go back into her custody. And it will be her job to help carry out whatever you decide.
    I would like you to watch over Hedy Harrison, who testified through her tears - that's Susan's aunt - about the agony that all of this has been for the family, and who relived that terrible moment when Susan said to her during that nine day period "I wish I could take back time." And Hedy now knows that she was trying to tell her, but she couldn't bring herself to do it. And if she had told Hedy first, it maybe could have done something to protect her as the legal system unfolded. Not to get away with this, but to protect her a little bit so that when all the truth came out that she would not have been so, so, so alone.
    I would like you to watch over Walt Garner, who loved these boys as much as anyone, and who still goes home, and will go home tonight, to his house with that shop out back and Michael's little fingerprints still stuck on that old car that Walt can't bring himself to go back to working on any more.
    And I would like you to watch over Scotty, and over Linda and Susan's mother.
    And despite everything that you have heard, I'm going to ask you to watch over Susan too. She doesn't know that she can go to the people who care about her. That, as you heard, is part of what is wrong with her. That is part of her illness. She said in her confession "I never felt so lonely and so sad in my entire life." Her judgment is impaired, but yours is not. Yours is not. So this time you go to her.
    She will be all alone again soon. You remember Officer Mungo's description of her cell. She will be all alone soon to resume her awful, awful struggle with suicide. Just do this for her. Don't leave her just yet. Stay with her just a little while. Watch over her.
    THE COURT: Ladies and gentlemen, I have a legal issue that I need to take up for just a couple of moments. And it also appears, in view of the time, that we should order in lunch for you. I think what we will do is let you order lunch now. And then I will give you my charge, because normally it takes them about thirty-five to forty minutes to actually get lunch here. And during that time I can give you my charge, and then you will be able to eat and begin your deliberations.
    So I'm going to ask you to go to the jury room at this time. Again, please don't discuss this matter. And you all have -- I guess they are back there. You have the menus for them to look at, and we will let you formulate your lunch.
    We will begin again in about fifteen minutes.
    Everyone else please keep your seats.
 (The following takes place outside the presence of the jury panel)
    THE COURT: Now, under South Carolina law Section 16-3-10, et sec, the defendant herself, Susan Smith, has a right to address the jury.
    And I would like to ask, first of all, if you know counsel - Mr. Bruck or Ms. Clarke - if Ms. Smith has indicated to you -- first of all, you had an opportunity to talk with her about that?
    MR. BRUCK: Yes, Your Honor, we have talked to her about it.
    THE COURT: So you know what her decision has been with regard to that?
    MR. BRUCK: Yes, I do.
    THE COURT: What is it?
    MR. BRUCK: She does not wish to address the jury.
    THE COURT: All right, sir. And you have gone over her right to do so with her. And in your opinion she understands that right?
    MR. BRUCK: Yes, sir, Your Honor.
    THE COURT: She has indicated to you that she does not wish to address the jury.
    MR. BRUCK: That's correct.
    THE COURT: Ms. Smith, under our law you have a right to address this jury, to tell them anything that you would like to tell them. And that right that you have you can exercise at this time.
    Now, just as with your right to testify or your right to remain silent, you can, through the advice of your attorneys, seek their advice, but ultimately, of course, it's your decision as to whether or not you exercise the statutory right that you have.
    Mr. Bruck has told me that he has gone over this with you, and that it has been up to you. At this point his understanding of your decision is that you did not wish to address the jury?
    THE DEFENDANT: That's correct.
    THE COURT: But I need to make sure that indeed that is your decision. Is that your decision?
    THE DEFENDANT: Yes, sir.
    THE COURT: And, again, I say, just as I have said earlier, that I don't want you to ever come back and say that I wished I had spoken to the jury, and I didn't really know I had a right to, or somebody else talked me out of it, or anything of that nature, because it is your decision. Do you understand that?
    THE COURT: And, again, your decision to what?
    THE DEFENDANT: That I do not wish to make any comments to the jury.
    THE COURT: Very well then. Okay.
    Well, I find that your decision in that regard is knowingly and intelligently, voluntarily made based upon our discussions, based on what counsel has told me and has represented to the court.
    MR. BRUCK: Your Honor, in view of that, unless it's been added, the last draft that I had, the charge does not include instructions on the failure of the defendant to speak on her own behalf or testify, and I would ask that instruction be given.
    THE COURT: Right. And I would include that, based upon my understanding of the law, so we will add that at this time. That instruction also did not have added in about the meaning of life and death, which is being added at this time as well.
    So we will take an additional ten minutes while we include that instruction. And then hopefully the jury will have finished their lunch order, and then I'll give my instructions at that time. So let's take fifteen minutes. We will start at twenty minutes after eleven.
 (proceedings recessed)
 (proceedings reconvened)
    THE COURT: Is the State ready to proceed?
    MR. POPE: State is ready, Your Honor.
    THE COURT: Is the defense ready to proceed?
    MR. BRUCK: Yes, sir.
    THE COURT: All right, sir, if you will bring me the jury.
    MR. BRUCK: If Your Honor please?
    THE COURT: Hold on one second for me, please.
    MR. BRUCK: I don't think we have yet seen the final version of the statutory instructions to be submitted in writing to the jury.
    THE COURT: Do you want to take a moment to look at them?
    MR. BRUCK: If I could.
    THE COURT: Yes, sir.
    MR. BRUCK: I didn't know they were ready.
    THE COURT: I believe you have seen them, haven't you, counsel?
    MR. GEISE: Yes, sir.
    THE COURT: Is there anything on them that you see that we need to --
    MR. BRUCK: No, sir, they appear to be --
    THE COURT: Doesn't comport to anything that you see that --
    MR. GEISE: No, sir.
    THE COURT: All right. Very well, if you will bring me the jury.
 (The following takes place in the presence of the jury panel)

 (Whereupon, at 1:24 p.m., the jury was charged by the Court)

    THE COURT: Mr. Foreman, ladies and gentlemen of the jury, it now becomes your duty -- now that you have heard the evidence and the arguments of counsel, it now becomes your duty to decide what sentence to impose upon the defendant, Susan Smith. However, you are asked to determine the existence or nonexistence of any statutory aggravating circumstances first. You see, under our law, you can only consider whether or not to impose a sentence of death if the State has proved an aggravating circumstance that is set forth statutorily - what we call a statutory aggravating circumstance - beyond a reasonable doubt.
    In this case, the State has asserted two statutory aggravating circumstances. And they are set forth in an instruction that will go with you to the jury room that's in writing called Statutory Instructions.
    I'm going to give you my instructions orally, tell you what the law is in South Carolina orally. I also will send into the jury room at the appropriate time for you to have with you this document called Statutory Instructions. And it sets forth what I'm about to go over in terms of these statutory aggravating circumstances. And it also sets forth some other things called mitigating circumstances, that I will tell you about in a few minutes.
    You will also have in the jury room with you two documents, each of which has two pages. Actually these are the same documents. And, as I say, each of them have two pages. These are the actual sentence sheets by which you will tell us what your verdict is with regard to the findings as to the statutory aggravating circumstance and also as to the sentence that shall be imposed.
    There are two sets, because of the fact that there are two indictments. And so from a legal standpoint, you will actually be rendering two sentences, because there are two indictments and two charges. So you will be sentencing as to each of those two charges.
    So as we go through this, when I refer to giving a sentence, I'm actually talking about two sentences and two sets of documents, because there are indeed two charges of murder for which Susan Smith has been found guilty.
    Now, as I stated, in this case the State has asserted two statutory aggravating circumstances. These are listed on the form that I'm now holding in my hand called the Statutory Instructions. You will have this form in the jury room with you. So you don't need to memorize this.
    The State has asserted the following two designated statutory aggravating circumstances. They are as follows:
    No. 1. Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.
    And then the second aggravating circumstance, statutory aggravating circumstance that the State has asserted is, that the murder was of a child eleven years of age or under.
    Now, these are the only two statutory circumstances or the only two circumstances, rather, that you may consider as "aggravating circumstances.".
    What is a statutory aggravating circumstance? Well, it is a fact, an incident, a detail, or an occurrence which the General Assembly - that is our legislature - has declared by statute would make worse, that is, would aggravate the offense of murder when the two of them occur together. In other words, it's something that increases the enormity of the crime, or adds to the injurious consequences of the events.
    If you find the State has proved one or both of those statutory aggravating circumstances beyond a reasonable doubt, then there are two sentences that you are to consider in this case. One is the death penalty. And the other is life imprisonment.
    Now, upon this sheet of paper that I hold in my hand are written the word Statutory Instructions. You will have this paper in the jury room with you during your deliberations.
    The body of this form states, "in determining whether the defendant, Susan Smith, be sentenced to life imprisonment or death, you - that being you the jury - shall first determine whether the State has proven the existence of one or more the following statutory aggravating circumstances beyond a reasonable doubt.
    1. Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.
    2. The murder of a child eleven years of age or under."
    If you do not find unanimously the existence of one or more of those two alleged statutory aggravating circumstances, then you would indicate that on part A of the sentencing verdict form, which is entitled Jury's Verdict On Proof Of Aggravating Circumstances. It has that title right on the top. And at that point, Mr. Foreman, you would then sign the form and that would end your deliberations, because you cannot consider the death penalty as a sentence in the case if you have not found one of those two statutory aggravating circumstances.
    Now, if, however, you unanimously find the existence of one or more of the alleged statutory circumstances, aggravating circumstances, that I have just listed for you, then you would have to fill out part B of that first sentencing form or verdict form. And that reads as follows: "We, the jury, in the above-entitled case unanimously find beyond a reasonable doubt the existence of the following statutory aggravating circumstance, or circumstances." And it then has a blank lines. Whichever, or both, if you have found both, that you find, you would then write that out on those lines.
    Now, in that instance then all twelve members of the jury sign. In other words, if the jury should find that the State has failed to prove one, or both, of those aggravating circumstances beyond a reasonable doubt, then you just sign, Mr. Foreman, on the first part, because that's where it says we, the jury, find that the State hasn't proven them.
    However, if the jury has found that the State has proved one, or both, of the aggravating circumstances, then you write in which one, or which ones, the State has proved beyond a reasonable doubt, and then all twelve of you sign it. And that would then end your filling out of the first verdict form, part 1, as to that particular indictment.
    Now, when I say as to that particular indictment, as I explained to you, there are one set of these forms for each indictment. And as you will see, it has up at the top Case Number 94-GS-44-906. And then the other one says 907. If you look on the indictments, you will see those numbers as to which case applies to which. So that's why you fill out one for each of the cases.
    Now, as I say, if you have found that the State has proved one or both of the statutory aggravating circumstances beyond a reasonable doubt, you would then go on to deliberate upon the question of sentence and to decide what sentence Susan Smith should have.
    The second part of the verdict form then is called the Jury's Verdict On Sentence To Be Imposed. By this form, which I hold in my hand now, part A, that is the first part, you, the jury, could sentence the defendant to life imprisonment. Let me read the text of this verdict form to you.
    It says "complete either A or B as appropriate.
    "A: We, the jury, in the above-entitled case decide that the defendant Susan Smith be imprisoned in the state penitentiary for the balance of her natural life." And then a place for you to sign, Mr. Foreman.
    If it is the verdict of the jury, then only you, Mr. Foreman, need sign if life imprisonment is the verdict of this jury.
    Now, in deciding whether to sentence the defendant to death, or to life imprisonment, you are to understand each of these sentences in their plain and ordinary meaning. That is to say, if you sentence the defendant to death, she will actually be executed. If you sentence the defendant to life imprisonment, she will actually be imprisoned in the South Carolina Department of Corrections for the rest of her natural life.
    That is what these sentences mean. And that is how you are to understand them during your deliberations. You are not to speculate that these sentences mean anything other than what I have just told, because what I have just told you is exactly what will happen to the defendant, depending upon the sentence you impose.
    Now, the second part of this form then is the part of the form to be filled out in the event the jury has decided unanimously to sentence the defendant to death.
    By this form which I hold in my hand, is Part B, you, the jury, can sentence the defendant to death. Please understand and observe that immediately below the body of the verdict there are twelve lines. And this is where, should you decide to sentence the defendant to death, each one of you would have to sign your names. It has a place for you, Mr. Foreman, and then the remaining jurors to sign their names. It is the law in this state that a sentence of death must be unanimous. It must be a unanimous verdict, and that each and every juror sign his or her name to that sentencing form.
    I'm now going to instruct you -- I have gone over this form. And as I say, it's the same form for each of the two charges. The first page, as I say, is where you tell us what decision the jury has made as to aggravating circumstances that the State has alleged, the two that the State has alleged. Again, the State has to prove those beyond a reasonable doubt. And if the State has failed, then you would fill out Part A, and that would end your deliberations.
    If on the other hand, they have proved one, or both, beyond a reasonable doubt, you would fill in which one, or both, and then all twelve of you would sign. That would then mean that you now are to --or at that time are to then consider which of the two sentences shall be imposed against the defendant.
    You would then turn to the jury's verdict upon sentence to be imposed, as I have explained that to you. And we will come back to these again at the conclusion.
    Now, I want to take a moment and instruct you on what you may consider in making your decision.
    As I stated to you earlier, the statutory aggravating circumstance is a fact, or an incident, or a detail, or an occurrence which the General Assembly has declared by statute would make worse, that is, would aggravate the offense of murder when the two occurred together. In other words, it's something that increases the enormity, or adds to the injurious consequence, of the offense.
    If you find the existence beyond a reasonable doubt of a statutory aggravating circumstance, then you are permitted - you are not required - but you are permitted to sentence the defendant to death.
    The law also requires, though, that you consider any mitigating circumstances which are supported by the evidence. You must consider mitigating circumstances, because if you are to make an individualized assessment of the appropriateness of the death penalty in this, the defendant's case, which the law of this state requires you to do, then evidence about the defendant's background and character is a relevant consideration. In this regard, it is also relevant for you to consider any positive attributes of the defendant's character in mitigation of punishment.
    Now, there are certain mitigating circumstances which are set out by statute. That is, again the General Assembly has recognized these in the sense of setting them forth in the statute.
    What is a statutory mitigating circumstance? It is a fact, an incident, or a detail, or an occurrence which the General Assembly has declared by statute would reduce, that is, would mitigate the offense of murder.
    In other words, it is a circumstance recognized by statute as one which in fairness and mercy may be considered as extenuating or as reducing the moral culpability for the commission of the act of murder.
    A mitigating circumstance is neither justification nor excuse for the murder. It simply lessens the degree of one's guilt, that is, makes her less blameworthy or less culpable.
    The statutory mitigating circumstances you may consider in this case -- well, again, I have set forth statutory mitigating circumstances which you may consider, should you find them to be support evidence.
    This reads as follows:
    "In determining whether to sentence the defendant to life imprisonment or to death, you may consider any of the -- I'm sorry, "you may consider any -- "you may consider any of the following statutory mitigating circumstances:
    No. 1. The defendant has no prior criminal record whatsoever.
    No. 2. The murder was committed while the defendant was under the influence of mental or emotional disturbance.
    3. The capacity of the defendant to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law was substantially impaired.
    4. The age or mentality of the defendant at the time of the crime.
    Furthermore, you may consider any other mitigating circumstances which you find are supported by the evidence in this case, including the following:
    No. 1. That prior to the offense, the defendant was a competent, loving mother, hard worker, and contributing member of her community.
    No. 2. A sentence of death will bring further grief to many of the surviving relatives of the victims.
    No. 3. The defendant is remorseful.
    No. 4. The defendant has experienced the effects of depression, parental suicide and incestuous sexual abuse.
    No. 5. The defendant has demonstrated that she will be a cooperative and complying inmate.
    You may consider any one, or all of these, if you find them supported by the evidence. Those latter ones are what we call nonstatutory mitigating circumstances. And this is one which is not provided for by statute, but is one which serves the same purpose. In other words, there are some which the General Assembly just simply could not contemplate in advance, because they may be specific to particular cases. But it does not mean that they are any less important for your consideration because they have not been set out under the statute, specifically.
    Now, while there must be some evidence which supports a finding by you that a statutory or nonstatutory mitigating circumstance exists, you need not find the existence of such a circumstance beyond a reasonable doubt.
    Furthermore, although I have instructed you that any finding that a statutory aggravating circumstance has been proven, if such a finding is made by you, that it must be made unanimously and it must be proved beyond a reasonable doubt. As I explained a moment ago, no such requirement exist for you to consider mitigating circumstances. Therefore, in deciding the appropriate punishment in this case, each individual juror must consider each mitigating circumstance which he or she finds to be supported by the evidence. It is not necessary that the entire jury unanimously agree on the existence of any mitigating factor before you, as jurors, may consider that fact. Rather, the existence of mitigating circumstances, and the weight to be accorded to any such mitigating factors, are matters which each juror may determine for himself or herself.
    Nor, as I told you a moment ago, is it necessary for the existence of any mitigating circumstance to be proved beyond a reasonable doubt before each of you may consider it. The defendant does not bear the burden of proving the existence of any mitigating circumstances. Rather, you are to consider each and every mitigating circumstance which you find from the evidence, regardless of what part or what source in the evidence it comes from.
    In reaching your decision as to the sentence, you will consider the aggravating and mitigating circumstances. While an aggravating circumstance must be found before you can even consider the death penalty, once such a finding is made beyond a reasonable doubt, you may sentence the defendant to death, even though you find the existence of a mitigating circumstance or mitigating circumstances. In other words, the existence of an alleged mitigating circumstance is not a bar to the imposition of the death penalty.
    Finally, if you should conclude that a statutory aggravating circumstance exists, you may consider whether the defendant should be sentenced to life imprisonment for any reason, or for no reason at all. This is what has been traditionally referred to as a sentence based upon mercy or a sentence of mercy. And should such be your decision, then you would so indicate by returning to the court the sentence of life imprisonment form, which would be signed again by the foreman alone.
    In other words, you can choose to sentence to life imprisonment if you find a mitigating circumstance, or you can choose to sentence to life imprisonment even if you find no mitigating circumstance, or for no reason at all. That is as an act of mercy.
    In any instance, should you choose to sentence to life imprisonment, as I explained, the foreman alone would be required to sign the sentencing form.
    In deciding whether to impose a sentence of life imprisonment or death upon the defendant, you are not to speculate on which, if either, of the sentences is more likely to deter other persons from committing similar crimes in the future.
    There is no evidence before you as to whether the death penalty will deter crimes like the one in this case any more effectively than will life imprisonment. Therefore, you should disregard anything that you may have heard one way or the other on this subject, and should set aside any preconceived opinions which you may hold as to whether life imprisonment or the death penalty is a more effective deterrent to murder. Such questions cannot be resolved in a trial of this nature. Therefore, they should play no role in your deliberations, and you should not even mention that subject in the jury room. I instruct you that your sentencing decision must be based only on the evidence that has been presented in this case pertaining to the particular circumstances of this crime and the character and background of this defendant.
    In considering the punishment to impose, you may consider any evidence before you concerning the victims' personal characteristics and the unique loss to the victims' family, that the defendant acts of murder have caused. Likewise, you may consider any evidence of the impact of this entire matter upon the surviving family members of the victims, including the family of the defendant, as well as on the community as a whole.
    To the extent that you are called upon to make decisions regarding factual issues, I again remind you that you are the sole judges of the facts, and that the State must prove the aggravating circumstances and the particular circumstances of the crime which they assert or rely upon beyond a reasonable doubt.
    In making your determination, of course, as I explained to you earlier in this trial, you may consider the credibility, which simply means the believability, of those who have come and testified here before you. And, again, you can ask yourself certain questions:
    How did they appear? Did they appear straightforward or were they hesitant?
    What was the ability of that witness to have seen or heard or experienced with their senses what they say they saw, or heard, or experienced?
    Is their testimony consistent with what they have said before? Is their testimony consistent with what others have said?
    Is there any reason for that witness to favor one side or the other? Any bias or prejudice, that is, on the part of that witness?
    All of these things you may consider, keeping in mind that you must give to the defendant the benefit of every reasonable doubt. And, of course, you certainly do not determine the credibility by counting up the number of witnesses for either side. You may believe all of what a witness says or a portion of what a witness says. You may believe one as opposed to several, or several as opposed to one.
    Now, let me remind you again about circumstantial evidence. And as I have said to you before, we have two different categories or types of evidence. And there is no real magic to it. We just break them down into direct evidence and indirect evidence.
    Direct evidence is the proof of the existence of something directly, as where someone comes into court and testifies that they saw something or that they heard something or that she experienced with one of their senses that something. That's direct evidence of that something.
    Circumstantial or indirect evidence would be the proof of a chain of circumstances which points to the existence or to the nonexistence of a particular fact which is at issue.
    The State may prove a matter which is at issue through the use of circumstantial evidence, provided that it meets the legal test or requirements. You see, to the extent that the State relies upon circumstantial evidence to prove something that is at issue, the State must prove each of the circumstances that they rely upon beyond a reasonable doubt. And those circumstances must point wholly and conclusively to that which the State seeks to exclude, to the exclusion of every other reasonable explanation or hypothesis.
    If there is another explanation for such circumstances which the State cannot exclude beyond a reasonable doubt, then you cannot sentence the defendant on the basis of such evidence, because you will have then found that there was a reasonable doubt.
    Now, again I want to instruct you on a very vital and basic rule of law in this country and in this court, and that is, that the fact that a person who is on trial in a criminal case does not testify in their own behalf is not a factor which may be considered by the jury in any way, shape, or form during your deliberations. It must not be considered by you in any manner whatsoever against the defendant. You may not allow it to mitigate against her in any respect. A defendant has a Constitutional Right to remain silent. And the assertion of such a Constitutional Right cannot and must not be considered by you in your deliberations. Indeed, it would not even be proper for you to mention that during your discussions and your deliberations. And that is, as I have explained to you, because the burden of proof is upon the State to prove those parties that the State must prove beyond a reasonable doubt. And again, because the defendant never has an obligation to bring matters before you. The burden of proof is upon the State.
    Now, let me summarize for you what I have just told you.
    You will have in the jury room during your deliberations three forms. The first form is called Statutory Instructions. It sets forth the instructions on how to fill out the form regarding the statutory aggravating circumstance finding. Again, it sets forth what the two statutory aggravating circumstances are that have been asserted by the State.
    It then goes on to tell you what the statutory mitigating circumstances are that you may consider, and the statutory non -- I'm sorry, nonstatutory aggravating circumstances which you may consider, if you find that they are supported by the evidence.
    Now, again with regard to your verdict, you first must determine whether or not the State has proved one or both of the statutory aggravating circumstances beyond a reasonable doubt. If they have not, then on your first page, that is Part 1, where it says Jury Verdict On Proof Of Aggravating Circumstances, Part A is what would be filled out, and that would simply require the signature of you, Mr. Foreman.
    On the other hand, if the State has proved one or both, then you would write out in Part B on those blank lines which one, or both, the State has proved beyond a reasonable doubt, and all twelve of you would sign.
    You would then turn to Part 2 of the form, which is the sentence. You may only consider a sentence of death if the State has proved one or both of the statutory aggravating circumstances beyond a reasonable doubt. If upon your consideration of which verdict shall be rendered in this case, the jury decides that the defendant should be sentenced to life imprisonment, then only you need sign the form, Mr. Foreman, and that's the first part.
    On the other hand, if the jury decides unanimously that the defendant should be sentenced to death, then all twelve of you must sign the form.
    As to that verdict, as to the sentence of death, I tell you that that verdict must be unanimous, and that again all twelve of you must sign it.
    Now, both the State and the defendant have a right to expect that each of you will comply with your oath to carefully and impartially consider all the evidence in this case, and that you will follow the law as I have explained it to you. That is what we ask of you, and that is what we ask you to do.
    Now, ladies and gentlemen, at this time I'm going to ask you to go to the jury room for me for one moment while I go over this charge very briefly with the lawyers to make sure that I have included everything that I need to include. If I bring you back out to tell you again about an area of the law, to a point of law, then please don't attach any special significance to that. It just simply means that I forgot to include it initially or that I told it to you incorrectly.
    On the other hand, if you receive a knock at the jury room door and the bailiff hands in to you the statutory instructions and the forms for the verdict on proof of aggravating circumstances and the verdict on sentence to be imposed as to each of the two indictments, along with the evidence that's been presented in this case, that would be your signal to begin your deliberations.
    Once you have arrived at a verdict, and you have completed these forms, if you will knock on that door and tell the bailiff, and the bailiff will let me know, and we will probably keep you waiting for a few minutes in order to allow people to reassemble, and then we will hear the verdicts.
    Now, make no mistake about it. Your verdict will be the sentence in this case. That's how the law works. So y'all will be making these decisions.
    At this time I will ask you to go to the jury room. And don't begin your deliberations quite yet.
 (Whereupon, at 1:55 p.m., the jury retired to the jury deliberation room)
    THE COURT: Any exceptions or additions, by the State?
    MR. GEISE: No, sir.
    THE COURT: Any exceptions or additions, by the defense?
    MR. BRUCK: None except the exceptions noted in chambers, was the request to treat the statutory or nonstatutory mitigating factors similarly without identifying which was statutory or which was not.
    I understand the court had overruled that request, and I would just like the record to reflect that we had asked that the charge not differentiate between statutory and nonstatutory on the grounds of Lockett principle and of the Eighth Amendment.
    THE COURT: Very well, we will note your exception.
    All right. Then the jury can be begin their deliberations.
    And with regard to that exception, by the way, you will note that I did tell the jury that just because it's not set forth statutorily does not lessen its importance.
    MR. BRUCK: Yes, sir.
    THE COURT: All right. With that in mind then, we will allow this jury to begin their deliberations.
    Counsel, if you would like for one last moment review these three forms before they go into the jury room, since we have had several drafts of it, to make sure that there is a not a word on there that should be, or shouldn't be, or vice versa.
    MR. POPE: Your Honor, we are also going to need to go through the evidence to make sure we have got everything going back.
    THE COURT: Right.
    Before we break, a couple of matters. This has been, I guess, a legal proceeding that started for me in January with counsel. And I just want to commend all four of the lawyers who have been involved in this case for your professionalism throughout this entire matter. And I commend all four of you in that regard.
    I also would like to take a moment just to thank all of the people at South Carolina Enforcement Division, and the sheriff's office, as well as the city police department for all of their work in maintaining the court security and the jury during this proceeding, handling the security matters for the courthouse before we ever arrived, including all of the unusual concerns that everyone had to take into account. These folks have worked very hard to assure that we would be able to try this case fairly and impartially. And they are to be commended for all their work, and I want to thank them. All right.
    We will be at ease with regard to this matter. I have had a request that I give some period of time. I will in view of the number of people who will need to get back into the courtroom. I'm anticipating the jury is going to go out to eat, and it would be awhile. I can't tell how long. I don't want to wait a long period of time. Once they have arrived at a verdict, I don't think that that should be done. However, I will wait fifteen minutes from when we know what the verdict is to allow people time to come into the courtroom.
    The court has one other proceeding to address. I'm going to take ten minutes at this time. And Mr. Bender, are you out there?
    MR. BENDER: I am, Your Honor.
    THE COURT: So you had asked to discuss this case or this matter, and we will do so at this time, and then the court will come back in approximately ten minutes to address that, that matter.
    MR. BENDER: Thank you Your Honor.
    THE COURT: All right. As far as the trial of this case, we will be at ease while the jury is deliberating.
 (Whereupon, at 2:00 p.m., proceedings recessed pending the verdict of the jury)
 (Whereupon, at 2:10 p.m., jury instructed to begin deliberations)
 (Whereupon, at 2:14 p.m., proceedings reconvened)
    THE COURT: Mr. Bruck and Mr. Pope. Mr. Pope here?
    MR. POPE: Yes, sir.
    THE COURT: Okay. With regard to the TV and the video and all the tapes, I'm going to allow those into the jury room because they're all actually evidence. They are not testimony.
    MR. BRUCK: Yes.
    THE COURT: Okay. Very good.
    Mr. Bender, good afternoon, sir.
    MR. BENDER: May it please the court, Your Honor.
    THE COURT: Ms. Decker.
    Yes, sir.
    MR. BENDER: At this time what I would like to offer to the court, as we discussed in chambers, is material in support of the position that -- in conformity with your earlier rulings in this case, there would be no need to call Ms. Decker to the stand. It's our belief that she has in fact presented an affidavit to the Supreme Court that would purge your contempt finding of May 26th.
    THE COURT: Okay. Now, you took that affidavit back with you as we left chambers.
    MR. BENDER: I have another copy.
    THE COURT: I'm not sure if I have got my copy.
    MR. BENDER: Here is a copy, Your Honor.
    THE COURT: Let's go back a little bit in time and then I'll tell you where I might be confused about what is in the affidavit that can be clarified --
    MR. BENDER: Yes, sir.
    THE COURT: -- or whether indeed we are at an impasse as to that particular issue.
    I know that my initial order as to the privacy of the mental health evaluation, in my view of it, extended to the state hospital, the solicitor's office, the defense office, and my office. I know directly from personal knowledge, of course, that nobody saw it at my office except my law clerk and myself and where it was and that sort of thing.
    And my purpose at the time, as you know, was to ascertain where the leak was, because at the particular time in question I was very concerned about what might happen in the ensuing days and weeks that might affect a fair trial.
    Now, your affidavit -- or your client's affidavit. I'll address this to you, counselor, the affidavit says in the pertinent part "no source for my May 25th, 1995 story was a person ordered by the May 16th, 1995 order to maintain the confidentiality of the report, in that none of my sources was quote, the solicitor, defense counsel, or any witness to whom the report of the information was divulged."
    So, as I understand, the affidavit is saying that it wasn't a solicitor, it wasn't a defense lawyer, and it wasn't a witness.
    MR. BENDER: That's correct, Your Honor.
    THE COURT: In the trial of this case?
    MR. BENDER: That is correct.
    THE COURT: And that's where we have a problem. Because, my initial order --
    MR. BENDER: When you say initial order, are you referring to May 16th.
    THE COURT: Let me get it.
    In paragraph four, "the report and its contents are not to be made public pending the further order of this court. No copies of the report are to be made without the express written authorization of the court."
    Now, a copy of this order was served upon the state hospital, state hospital having been ordered to do the report by the court under the code sections that are applicable, and I don't happen to have them in front of me at this time.
    So if Twila Decker is saying in this affidavit that nobody who is employed by or has any connection to the South Carolina state hospital provided any information -- you know, gave her the information, then that's fine.
    I take it the rest of it is saying that no solicitor, no defense counsel, and that -- included in that are their offices, if that's what she means people in their offices.
    So if that's what you mean by this, then that's fine. I just can't -- I can't let y'all make the decision as to -- legally how this is interpreted. I know how it's interpreted from my viewpoint. But I don't mean to limit you factually, if indeed factually that's what the situation is, then that's all I need is an affidavit to that effect, and that ends this matter.
    I'm not asking Twila Decker who her source is. I respect very much the confidentiality of the press sources to the press.
    My problem is if it is somebody who has got a connection with, employed by the state hospital, or is in the defense lawyers' office, or the prosecution's office, or for that matter were it my office, one of those four places, which are the only four places that I know of that the report was, I need to know. And so that's where we are at.
    So if you can clarify that, either with sworn testimony or by affidavit, then that solves the problem and Ms. Decker can go home, or stay here as she chooses, for the rest of the trial.
    MR. BENDER: We may be able to address that issue. But with regard to the interpretation, I would direct the court's attention to the Supreme Court's substituted opinion of July the 11th. I have an extra copy.
    THE COURT: Okay, I think that's in front of me.
    MR. BENDER: In the statement of facts in the first paragraph, the Supreme Court seems to be interpreting your report -- your order of May 16th rather, to require disclosure only to the defense counsel and the solicitor, both of whom were ordered to maintain the confidentiality of the report.
    And I would take the position that based on the Supreme Court's view of it, that the order of May 16th in confined to the specific language as to the persons who are bound by it in the ordering part.
    THE COURT: Well, but the first part of that sentence correctly reflects what the intent of that order was, which was "due to the extensive pretrial publicity, the Circuit Court issued an order on May 16th requiring the report to be disclosed only to defense counsel and the solicitor." Obviously, if I were ordering that as to them, I wouldn't be -- I mean --
    MR. BENDER: Well, I guess it's that last clause, both of whom were ordered to maintain the confidentiality of the report there.
    THE COURT: That's right. Yeah, they were both ordered specifically to maintain the confidentiality.
    But the order itself specifically says that it's confidential and shall not be disclosed, and a copy was served on the state hospital, which as you will notice in the footnote that it specifically refers to the end of that phrase you are talking about, how the Supreme Court also notes the report was also required to be kept confidential pursuant to South Carolina Code Annotated Section 44-22-100, which carries criminal penalties of up to one year in jail for a violation.
    MR. BENDER: Right, except that I don't believe that Dr. Morgan's testimony substantiated that these were patient records under the act, because he said specifically that Susan Smith was not a patient of his and these were not patient records. So I --there is a factual dispute as to the applicability of that statute.
    But I can discuss with Ms. Decker your question about --
    THE COURT: Yeah, let's deal with that, because we may not have a problem.
    MR. BENDER: Give us a minute, Your Honor.
    THE COURT: Yes, sir.
 (off the record)
 (back on the record)
    MR. BENDER: With that clarification, Your Honor, we can provide you with an affidavit.
    Then in addition to the affidavit submitted to the Supreme Court, which we have submitted to you today, described as you have described it, that the source was not an employee of the department of mental health and not of your office, if you want us to say it wasn't from your office.
    THE COURT: Okay. And in addition to that that it's not in the solicitor's office or the public --or the defense lawyer's office.
    MR. BENDER: That's correct.
    THE COURT: Right.
    MR. BENDER: That's what I say. The affidavit we previously submitted as you have described it. I mean, that's what way you described it as being their -- not just the individuals but their offices.
    THE COURT: All right. So you are saying then --Ms. Decker, why don't you just stand there and let me swear you and you can just tell me. I'll ask you specific questions, and you just give me your specific answers, and hopefully we will have resolved this issue.
    TWILA DECKER, having been first duly sworn, testified as follows:
    THE COURT: You can stand right there if you would like.
    THE COURT: Ms. Decker, am I correct then that your source of the information that you reported in your May article about the mental health evaluation of Susan Smith was not, A, an employee of the South Carolina state hospital; B, neither a solicitor, nor an employee of the solicitor; C, neither one of the defense lawyers or an employee of their office; and D, no one connected with my office?
    TWILA DECKER: Yes, you are correct in saying that.
    THE COURT: Very well then.
    Counsel, I don't think that I have a right under our Constitution to ask Ms. Decker to tell me who her source is, if it is not somebody that is protected under that order, or who must -- and has the obligation to protect the information under the order.
    MR. BENDER: I agree with that, Your Honor, and may we --
    THE COURT: I guess the proverbial question is why did we need to go through all that? It's ever present on my mind, but perhaps --
    MR. BENDER: I think timing had a lot to do with it. Had we talked on May the 26th, perhaps before we got into this issue, we might have been able to steer a course through it.
    THE COURT: Very well then.
    MR. BENDER: I appreciate your entertaining us today.
    THE COURT: Very good then.
    MR. BENDER: I would take it that your --
    THE COURT: The reporter, Twila Decker, having related to this court under oath that the source of her information, whoever it may have been, is not connected with one of those four entities - those four entities having been the only entities that the court knew of that had access to the information, and those four entities being covered by the court's order, and the source not being one of those four, then that concludes the inquiry of that matter by this court with Ms. Decker. And the prior order of contempt is hereby rescinded.
    MR. BENDER: Very good, Your Honor. Thank you.
    THE COURT: Mr. Bender, if you would like to draw an order for me to that effect, I'll be happy to sign it.
    MR. BENDER: I'll be happy to, Your Honor. Thank you.
    THE COURT: All right. That concludes this matter.
    Court would be in recess while the jury is out.
 (Whereupon, at 2:25 proceedings recessed pending the verdict of the jury)
 (Whereupon, at 4:37 p.m., proceedings reconvened)
    THE COURT: Ladies and gentlemen, we have received notification that the jury has arrived at a verdict in both of these cases.
    You will recall at the earlier stage, I asked everyone to please not only remain in your seats, but to remain quiet at the sounding of the verdict. It's difficult on a jury to have to be called upon to make these decisions. And so if there is anyone who feels that they cannot control their emotions, I would ask that you leave at this time, because I cannot have any outbursts.
    Very well then. If you will bring me the jury.
 (Whereupon, at 4:38 p.m., the jury returned to open court to report its verdict)
    THE COURT: Mr. Foreman, has the jury arrived at verdicts in each of these two cases?
    JURY FOREMAN: We have.
    THE COURT: Have you filled out those sentencing forms?
    JURY FOREMAN: We have.
    THE COURT: If you will, you can hand them to Ms. Miller for me.
    All right, you may publish the verdict.
    THE CLERK: Docket 94-907, State versus Susan Smith, indictment for murder.  "We, the jury, in the above-entitled case unanimously find beyond a reasonable doubt the existence of the following statutory aggravating circumstances.
    1. Two or more persons were murdered by the defendant, or by one act, or pursuant to one scheme or cause of conduct.
    2. The murder of a child eleven years of age or under."
    And it's signed by the foreman and all the jurors.
    THE COURT: Go ahead and publish the verdict. Just the second sheet.
    THE CLERK: "We, the jury, in the above-entitled case decide that the defendant, Susan Smith, be imprisoned in the State penitentiary for the balance of her natural life." Albert Epps, Foreman.
    Docket No. 94-906, the State versus Susan Smith, "we, the jury, in the above-entitled case unanimously find beyond a reasonable doubt the existence of the following statutory aggravating circumstances:
    1. Two or more persons were murdered by the defendant upon an act or pursuant to one scheme or course of conduct.
    The murder of a child eleven years of age or under."
    Signed by the foreman and all the other jurors.
    "We, the jury, in the above-entitled case decided that the defendant, Susan Smith, be imprisoned in the state penitentiary for the balance of her natural life."
    Signed by the foreman.
    THE COURT: You may have a seat.
    Mr. Foreman, ladies and gentlemen of the jury, was this your verdict?
 (JURY PANEL): Yes, sir.
    THE COURT: All right. If it was your verdict, will you please your right hand?
 (Whereupon, the jury panel raised their hands)
    THE COURT: Very well then. Thank you.
    Before you leave, there is a couple of things that I want to say to you on behalf of myself and on behalf of all of the people involved in this process.
    In the 1970s the United States Supreme Court made a decision that the death penalty could not be imposed unless the jury determined by considering all of the factors in each individual case whether or not it was the appropriate penalty. And only then was it a just and not a cruel and unusual punishment. That is, only then is it not arbitrary.
    Under our system here in South Carolina, in essence, the jury becomes not just the fact finders but the soul searchers, if you will, of the community, who really have to make the tough decisions on a moral and all other levels as to what a judgment should be.
    Placing that kind of a burden on the jury is perhaps placing about the largest burden upon another human being that could be asked. And I want you all to leave here knowing that you have fulfilled your duties to the upmost. I have noticed a United States flag flying out that window throughout this trial. And every now and then I have looked out at it, and it's given me faith in our system and faith in your ability to do what you were called upon to do. And no one could have performed their duties any better than you did. You all were asked intensive questions about matters that you probably never had to think about before in your lives. I know that your hearts were torn throughout this two weeks emotional trial, as I think everyone's hearts have been torn. And I want you to know on behalf of myself, and on behalf of the citizens of Union County, and of this state, and of this nation that your work is not going to be forgotten or taken lightly.
    We oftentimes say that being on a jury, service on a jury, is probably the most important thing that you could ever be asked to do, save and except perhaps service to your country in a time of war. But in thinking about that on the way here today, I began to think that in some ways in this kind of a case, particularly, is even a tougher assignment in many instances, because no one is shooting at you when you have to make the decision of whether somebody else should have the death penalty or life imprisonment. And that's probably the toughest moral decision that you could ever be asked to make.
    I know that your community is proud of you. And I know the people in this courtroom are proud to have been here with you during your service.
    Now, at this point I am going to take a fifteen minute break and ask you all to come into the back for just a moment. I have a couple of other things to make mention to you, and then I will have sentence.
    So, if you will, I'll ask you all to come into the back for just a moment.
    Everyone else please keep your seats while the jury is taken out.
 (Whereupon, at 4:45 p.m., the jury was dismissed)
    THE COURT: All right. I'll have sentencing at fifteen minutes to five. Court will be in recess until that time.
 (proceedings recessed)
 (proceedings reconvened)
    THE COURT: On Indictment 94-GS-44-906 and Indictment 94-GS-44-907, both of those being indictments for murder, the jury has returned verdicts of guilty and has returned a verdict which under the statute is a sentence of life imprisonment.
    Is there any matter upon which the -- that is --and let the record also reflect that the jury has unanimously found beyond a reasonable doubt the existence of both of the statutory aggravating circumstances; that was, that two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.
    And No. 2, that the murder of a child eleven years of age, or under. And that's as to each indictment.
    Mr. Solicitor, is there any other matter that the State needs to bring to my attention or that we need to do on behalf of the State before I pass sentenceing?
    MR. POPE: No, sir, Your Honor.
    THE COURT: Thank you. Is there anything by the defense?
    MR. BRUCK: No, sir.
    THE COURT: All right. Very well then. We will have sentencing at this time.
    In the normal course of either a guilty plea or a verdict of guilt, it is at that stage where the judge would hear from anyone connected with the matter before imposing sentence.
    In a death penalty setting, of course, that is the whole purpose of the proceeding, that the Court and the jury hears from both sides.
    So that having been accomplished as a part of the proceeding, I assume that both Mr. Bruck and Ms. Clarke, that you all have said what you needed to say, but I don't want to assume that. Is there anything further that you wanted to say on behalf of the defendant?
    MR. BRUCK: No, Your Honor.
    MS. CLARKE: No, Your Honor.
    THE COURT: Okay. Ms. Smith, the jury having found you guilty, and the verdicts having been published, is there any matter that you would like to address? Is there any anything that you would like to say before I impose sentence?
    THE DEFENDANT: No, Your Honor.
    THE COURT: Very well then. On Indictment 94-GS-44-906, and on Indictment 94-GS-44-907, it is the sentence of this court that you, Susan Smith, shall remain in the custody of the Department of Corrections for the State of South Carolina for the balance of your natural lifetime.
    And pursuant to South Carolina law, that there be no parole eligibility until after the service of thirty years, in accordance with South Carolina law, in view of the finding unanimously of the statutory aggravating circumstances. And that is the sentence of this court.
    THE DEFENDANT: Thank you.
    THE COURT: Yes, ma'am.
    That having been concluded, I would like to say to Mr. Pope, Mr. Geise that -- you may regain your seats now.
    You have tried this case in a very thorough professional manner. I can understand the reasons why you brought this case to this courtroom and tried it to this jury. I think that a part of each person in the courtroom was swayed by the nature of this crime and the impact upon the victims.
    In a proceeding of this type, it is difficult to understand all that goes into it, unless you are able to go through all the pretrial proceedings and see all that goes into the preparation. But I commend you all for a job well done and by carrying this forward as you deemed in your judgment was required, and I certainly understand that.
    Mr. Bruck and Ms. Clarke, I too want to tell you again that you have conducted yourselves in a most professional manner as well, and have been, as Mr. Geise and Mr. Pope, prepared at all times in this case. Both sides have provided me with excellent argument and excellent law on all the issues that have come up. And there have been some that were somewhat unique to this case. And I'm very proud of all four of you for the jobs that you have done, the judgment that you have shown, the argument that you have made, and the positions that have advocated very ably.
    And with that, this court stands adjourned.

(Whereupon, at 5:12 p.m., proceedings concluded)

Michael R. Watts, Circuit Court Reporter

source: 1995 WL 789245