NO. 00-00-24467-CR IN THE 137TH JUDICIAL DISTRICT vs. * oF NAVARRO COUNTY, TEXAS i Sion ‘THE ATE OF TEX CAMEN TODD WILLINGHAM STATEMENT OF FACTS vous xv of _/f Volumes TRIAL ON THE MERITS PUNISHMENT PHASE ARGUMENTS, JURY VERDICT and FORMAL SENTENCING COPY al Mr. Jon H. Jackson and Mr. Alan J, Bristol First ssistant District Attorney Assistant District Attorney Navarr: County, Texas Navarro County, Texas 300 W.Third Avenue, 2nd Floor 300 W. Third Ave., 2nd Flr. Corsicna, Texas 75110 Corsicana, Texas 75110 For the State of Texas i Mr. Daid H. Martin Mr. Robert C. Dunn and Attorney at Law Attorny at Law DAWSON, SODD, MOE & MARTIN 115 W. Collin Street 200 Feris Avenue, Suite 200 Corqpiqepag exes 75110 75168 ASLUS o'clock, wi NOV OS a Waxahahie, Tex: sy paces on the flat day of August, 1992, cheskbeveredemeteddtéa caus 4 for trial in the said Court, Honorable came on to be h the following Kenneth A. "Buck" Douglas, Judge Presiding, and dings were had, to wit Ede 3. Swain, Official court ReporINDEX PAGE NO. CAPTION PAGE i DEFENSE'S OBJECTIONS TO COURT'S CHARGE-- 2 DEFENSE'S REQUEST REGARDING PAROLE LAW INSTRUCTION 2 COURT READS COURT'S CHARGE TO JURY. 3 COURT BEGINS AGAIN TO READ COURT'S CHARGE TO JURY- 4 DBFENSE'S ARGUMENT BY MR. DUNN 7 STATE'S ARGUMBNT BY MR. JACKSON- 14 DELIBERATIONS BEGUN BY JURY. 24 JURY NOTE NO. 1 RECEIVED AND WRITTEN ANSWER RETURNED 24 JURY NOTE NO. 2 RECEIVED AND WRITTEN ANSWER RETURNED----- 25 JURY VERDICT AND JURY POLLED-- = 26 JURORS INSTRUCTED AND DISMISSED BY THE COURT~. - 27 FORMAL SENTENCING: - 28 TRIAL CONCLUDED-- - 29 . REPORTER'S CERTIFICATE: NO DOCUMENTARY EVIDENCE Ede J. Swain, Offic: our10 1 12 23 14 15 16 17 18 19 20 21 22 23 24 28 THE COURT: Okay: with reference to the Charge, Mr. Dunn, do you have some objections and sone requests? MR. DUNN: Yes, Your Honor. DEFENSE'S OBJECTIONS TO COURT'S CHARGE BY MR. DUNW: We have filed with the Court formal objections to the Charge, as presented. We believe it is multifarious in nature. We believe that it do it misplaces the burden of proof in this ca: And the other items that are noted in the objection to the Charge, we ask the Court to consider. They are too numerous to enumerate one at a time for this record. and we ask the Court to grant those objections. THE COURT: That is -- that request is denied, overruled, whichever is in order. DEFENSE'S REQUEST REGARDING PAROLE LAW INSTRUCTION MR. DUNN: Your Honor, in regard to the request to include the instruction of the jury the parole law, under Article 37.07, Code of Criminal Procedure, as applied by 4218, we ask the Court to consider that and to let the jury know by its Charge that the minimum requirement of a life sentence is ed by the jury. 35 calendar years, if a life sentence is ass THE COURT: And that request is denied. MR. DUNN: Note our exception, Your Honor. THE COURT: Yes, sir. Bde J. Swain, Official court Reporter, 13th District Court10 a 12 13 14 15 16 a7 18 19 20 2a 22 23 24 25 THE COURT: Bring the panel in, Bill. (The jury entered courtroom and the following proceedings were had:) THE COURT: Okay; the jury panel is back in place. Members of the jury panel, I will now read the Court's Charge to you, COURT BEGINS READING COURT'S CHARGE 70 JURY By your verdict in this case, you have found the defendant, Cameron Todd Willingham, guilty of the offense of capital murder, as charged in the Indictment. It is necessary now for you to determine from all of the evidence in the case answers to certain questions called "Special Issues." MR. DUNN: Your Honor, may we approach the bench? THE COURT: Yes, sir. (The following discussion at the bench was had outside the hearing of the jury:) MR. MARTIN: Let us have a copy of the Charge. THE COURT: Do what? MR. MARTIN: Let us have a copy of the Charge. MR. JACKSON: I ran off and left my copy MR. DUNN: And I did, too. MR. JACKSON: Do you want me to go make one real quick, Judge? = 2) Bde J. Swain, Official Court Reporter, 13th District Court10 an 12 13 14 15 16 17 18 19 20 aa 22 23 24 25 MR, MARTIN: Perhaps we better have one before. MR. JACKSON: 1I'11 be right back; okay? THE COURT: Excuse me just a minute. MR. (The following was within the hearing of all:) THE COURT: Are there some on the air conditioning deal back there? We're missing some copies, ause they've gone to make some copies. Do you want to get Alan, because he’s got my copy? I'm going to start back over at the beginning and read the Charge in its entirety at this time. COURT RE: EADING COURT'S CHARGE TO JURY By your verdict in this case you have found the defendant, Cameron Todd Willingham, guilty of the offense of capital murder, as charged in the Indictment. It is necessary now for you to determine from all of the evidence in the case the answer to certain questions called “Special Issues." Our low provides that the punishment for the offense of capital murder in this state is death, or by confinement in the Institutional Division of the Texas Department of Corrections of Criminal Justice, for life. You're instructed that you may consider all of the evidence submitted to you in the full trial of this cause. That is all of the evidence submitted before you in the trial 4) Ede J. Swain, Official Court Reporter, 13th District Court10 aa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the first part of the case, wherein you are called upon to determine the guilt or innocence of the defendant and in the second part of the trial, where you're called upon to answer Special Issues. It is up to the jury to determine the weight and the credibility of the evidence, if any, and it's bearing, if any, to the Special Issues being considered by the jury. The burden of proof is on the State to prove each Special Isaue submitted to you beyond a reasonable doubt. You're instructed that, in deliberating on Special Issue No. 1, you shall consider all evidence admitted at the Guilt or Innocence Stage and the Punishment Stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty. You're instructed that you may not answer Special Issue No. 1 "yes" unless you agree unanimously, and you may not answer it “no” unless 10 or more jurors agree. The members of the jury need not agree on what particular evidence supports a negative + You're -- You are instructed answer to Special Issue No. that, if you answer Special Issue No. 1 in the affirmative, then you will proceed to answer Special Issue No. 2. You're instructed that you may not answer Special Issue No. 2 "no" unless you agree unanimously and you may not answer it "yes" unless 10 or more jurors agree. You need not agree Bde J. Swain, Official Court Reporter, 13th District Court10 a. 12 13 14 15 16 a7 18 19 20 aa 22 23 24 25 on any -- on what particular evidence supports an affirmative finding on Special Issue No. 2. You shall consider mitigating evidence to be evidence that you might regard as reducing the defendant's moral blameworthiness. If the jury returns an affirmative finding on Special Issue No. 1 and a negative finding on Special Issue No, 2, the Court will sentence the defendant to death. If the jury returns a negative finding on Special Issue No. 1 or an affirmative finding on Special Issue No, 2, the Court will sentence the defendant to confinement in the Institutional Division of the Texas Department of Criminal Justice for, life. Our law provides that a defendant may testify in his own behalf if he elects so to do. This, however, is a privilege accorded a defendant; and in the event he elects not to testify, that fact cannot be taken as a circumstance against hin. In this c ndant has elected not to testify, , the 4 and you are instructed that you cannot and must not refer or elude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever circumstance against him. Under the instructions herein given you, it will not be proper for you, in determining answers to the foregoing issues, to answer the same by lot, chance, average, or any other method than by a full, fair and free exercise of the Bde J. Swain, Official Court Reporter, 13th District Court10 at 12 13 14 15 16 17 18 19 20 a1 22 23 24 25 opinion of the individual jurors, under the evidence submitted to you. You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given the testimony, But you're bound to receive the law from the Court, which is herein given you, and be governed thereby. THE COURT: Does the State care to be heard? MR. JACKSON: The State waives its right to open, and we reserve the right to close, Your Honor. THE COURT: Mr. Dunn. MR. DUNN: Your Honor. ‘THE COURT: Forty-five, at the most. MR. DUNN: Thank you, Your Honor. DEFENSE'S ARGUMENT BY MR. DUNN: Members of the jury, I have not addressed you yet. want to thank you very much on my behalf, as Court-appointed counsel for the defendant, for your attention -- intentions in this case. And I hope that your intentions that you expressed to us when we took you as a jurorman are upheld. I've notice that each of you hi Throughout this ca: been very attentive; and I believe, by your answers to the determination of guilt in this case, that you were permitted to your opinion. Now -- and I regretfully tell you this is the hard part of the case. Ede J. Swain, Official Court Reporter, 13th District Court10 a 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 You people, on one side of this, are to be the conscience of the community, Mr. Jackson will tell you that you are "thé You are the people that they're going to talk about in the coffee shops when they say, why don't "they" do something? Well, you know, we've all been guilty of that, and we've all made statements. I know, myself, probably worse than you, make statements about why doesn't this change? Or why isn't this done? When I don't have any idea of the gravity, the responsibility and the conditions that make up the decision that I disagreed with. So I want you to understand that, when Mr. Jackson makes this argument, it is almost a tradition with the State's Attorney's Office to say that type of thing. That he, like myself, is a practitioner of this, what we call a “practice of the law." He tries his case as I try my case. For 20 years T have addressed juries, and I tried, in my address, to say things that would awaken emotions, would create feelings, and that would stir responses, depending on the case, that might overshadow the deficiencies of my case, by these responses and the actions of the jurors, or accent parts of my case. Now, I want you to understand that just because Mr. Jackson sits on this side of the courtroom and he addresses you as if he was the wearer of a white hat and is on the side of justice and right, that he is just a lawyer; and because Mr. Martin and I sit on that side of the table and we are Court-appointed bot de J. Swain, Official Court Reporter, 13th District Court10 an 12 13 14 15 16 17 18 19 20 aa 22 23 24 25 1, neither one of us do less than our very best. And in order to do our very best, we're going to punch every button that experience, learning and practice has taught us to make you people respond for the benefit of our client, both for the State of Texas and/or for the defendant. Now, I want you to understand, with all of that out of the way, that this is, and the law calls it, "Argument." I guess it is argument for our way of thinking. But T am not going to argue with the basis of what we're here for today. We are here to do the impossible. We're here for you people to be exposed to this whole case and our own theory of it, and then we're going turn you back in that jury room, and we're going to ask you to do something that may or may not haunt you for the next 10 years. We're going to ask you sometime today to make a decision that every time the news comes on and it says, “An inmate was put to death in the Texas Department of Corrections," you're going to put down the toothbrush, "was that Willingham?" It's a That's the reason we spent six hard choice; it's a hard de days talking to almost sixty jurors and that's the reason that you people are here. The District Attorney says, “This juror is acceptable to the State” and the defendant said, “this juror is acceptable to the defendant." So for 12 times we agreed to create a terrible burden on each of you individuals. Now, when you determine the issues in this case, you are given five simple sheets of regular-sized paper. In them, Bde J. Swain, Official Court Reporter, 13th District Court10 a 12 13 1a 15 16 17 18 19 20 21 22 23 a4 25 through your foreman, you must determine a brand new deal. You are aided by the instruction, with all of the facts that you've heard at the regular trial of this case, and all of the facts in evidence that you heard yesterday at the Punishment Phase of this hearing, But, ultimately, you must agree unanimously--all 12 of you--to answer certain questions that will cause the death -- the death by injection of this young man, or 10 of you must agree to answer the questions according to the instructions that will assess a life sentence. Personally, I want to apologize for being @ part of putting you people in that position. I try cases, and have for the last 20 years, and sometimes what I have done haunts me. And sometimes I wonder, “Did I do right?” And sometimes I wonder, "What's happened to those people?" But you know it's -- it's done, and I can't undo it. Remember, when you consider the first issue: Do you find from the evidence beyond a reasonable doubt there is a probability thet the defendant would commit criminal acts of violence that would constitute a continuing treat to society? Remember the definition of reasonable doubt. It was defined in the original Charge; and it is "that doubt based upon reason and common sense, after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs." Proof beyond a 10 Bde J. Swain, Official Court Reporter, 13th District Court10 a 12 13 14 15 16 17 18 19 20 2a 22 23 24 25 reasonable doubt, therefore, must be the proof of such a convincing character that you would be willing to rely and act upon it without hesitation in your -- and the most important of -~ your own affairs. Now, Mr. Jackson is going to tell you that the sheer horrible nature of this offense would make anyone believe that this person would commit further acts of violence, The offense is arson. How quick in your own lives do you recall a fire getting away from you? ‘That's an elementary thing that T think we have all seen. It is not elementary that three children died. But is that act, itself, one of such gravity that would indicate a continuing threat to society? I do not think, I do not think, I do not think that the evidence, by the offense, itself, can allow you unanimously to answer "yes." Now, Mr. Jackson is going to say, “Well, this man hi had a horrible life of crime. He's a petty thief.” He's going to say, “We brought all of the policemen here to say he had a bad reputation, that he threatens people.” But you didn't see the person that had been threatened. That -- that guy didn't come. And we had a fellow that's a -- raises fighting dogs, and he says he was told the defendant killed a dog. Mr. Jackson is going to say the defendant's violent because he beats his wife. Well, the wife didn't say that. Menbers of the jury, as we talked to you originally when you were selected, you were to determine only the 1 Ede J. Swain, Official Court Reporter, 13th District Court10 aa 12 13 1a 15 16 a7 18 19 20 an 22 23 24 25 evidence that came from that chair, not the innuendos, not the references, not the general allegation, but the evidence. They didn't bring you the evidence; they brought you shorthand renderings; they brought you general statements. Members of the jury, there is not enough evidence here for you to anewer this question in any other way but by the bottom verdict form “no.” Special Issue No. 2 addresses a new charge in our law which states: “Do you find, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment, rather than a death sentence, be imposed? Menbers of the jury, when you view this, I want you to understand that we have brought this man's family; and we hed a host of relatives and families, and they are not the most educated, the most articulate, or the most knowing, but they are the man's family. And if a man's family won't come and stand up for him at a trial, and if a man's family won't speak good for him, who will? The neighbors, the rest of the world don't want to get involved. The policemen come because that's id their job. And they testify for the State. Now, they they know Todd Willingham and that he loved those children and that he is a good man. He's had some trouble with the law; 12 Ede J. Swain, Official Court Reporter, 13th District Court