1045
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 9th day of February, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20
On Behalf of the Defendant:
21
GEORGE V. LAUGHRUN, Esq.
22 Suite 602
301 South McDowell Street
23 Charlotte, North Carolina 28204
24
25
1046
1 APPEARANCES: (Continued)
2 PAUL J. WILLIAMS, Esq.
Suite 801
3 301 South McDowell Street
Charlotte, North Carolina 28204
4
5 ---
6 (Charge conference held 2/6/98)
7 THE COURT: Good morning, everyone. We have passed out
8 the proposed verdict form to both sides. Is there any question
9 about that from the government side?
10 MR. CONRAD: No, sir.
11 THE COURT: How about the defense?
12 MR. LAUGHRUN: Judge, we reviewed that this morning when
13 we got here. We had some objections and you heard us on Friday.
14 THE COURT: All right, there is no changes other than
15 what we --
16 MR. LAUGHRUN: Other than what we objected to on Friday,
17 Judge, at this point we have no objections, if Your Honor
18 please -- well, other than the objections we previously made.
19 THE COURT: Okay, that's fine. We will have the
20 instructions for you I hope at the next break. We had some
21 numbering problems on the pages after we put some other stuff in
22 there.
23 As I understand it, each side wants three hours, that's
24 opening and closing, and you can divide it between the two
25 attorneys on each side any way you want to, and I guess we are
1047
1 about ready to go. Is everybody ready?
2 MR. CONRAD: Yes, sir.
3 THE COURT: Do we have 12 jurors? Call the jury.
4 (The jury returned to the courtroom.)
5 THE COURT: Good morning, ladies and gentlemen. I hope
6 all of you had a very pleasant weekend. Now, I have to ask you
7 the standard question one more time: Have any of you seen,
8 heard or read anything about this case over the weekend?
9 (Jurors shake heads.)
10 THE COURT: Anybody tried to talk to you about the
11 case?
12 (Jurors shake heads.)
13 THE COURT: Have you talked to anybody about the case?
14 (Jurors shake heads.)
15 THE COURT: Has anybody talked to you, I asked you if
16 they tried to, but has anybody talked to you about the case?
17 (Jurors shake heads.)
18 THE COURT: All right, it's a sunny day. I hope this
19 will be the last day except for your deliberations. You might
20 run over to tomorrow on that and maybe even longer, I don't
21 know, that's up to you.
22 Now, you remember when I told you in the very beginning
23 that the attorneys will sum up to you at this time what they
24 believe the evidence in this case has shown. The attorneys'
25 recollection of the evidence may be different than yours. If
1048
1 you think that it is, or if you feel that it is and you remember
2 the evidence differently than the attorneys, it's your
3 recollection that counts, not the attorneys'. Listen closely to
4 the statements of the attorneys on both sides, and they will
5 point out some things to you you may have overlooked or maybe
6 help you to recall them as you remember them. And as I say,
7 just listen closely to the statements.
8 Now, each side has a certain amount of time. I will
9 keep time on the attorneys. It's rather lengthy. I don't mind
10 telling you that, because it's a right lengthy bit of evidence.
11 So listen closely, and we will open with the government. The
12 government has the opening and closing arguments, because they
13 have the burden of proof on these issues. All right, the
14 government will open.
15 MR. WALKER: Thank you, Your Honor.
16 I have often wondered what it is that I would say to you
17 at this moment. I am humbled with the responsibility to stand
18 before you and to ask for justice on behalf of Donnie Allen and
19 Robin Williams. I am confident that if they were here, if they
20 could speak to you that, they would do a much better job than I
21 could ever do in asking for justice in this case. But they are
22 not here. We have their photographs, but they are not here, And
23 so I stand up on their behalf and I ask you for justice on their
24 behalf.
25 The defense attorneys in the case will argue for life.
1049
1 They will say emotionally charged statements like, choose life
2 over death. They will tell you that there's been enough death
3 in this case, choose life. They may try to get you to second
4 guess your decision. They may even try to hint at whether you
5 will be able to live with yourselves if you make the appropriate
6 decision in this case. I ask you when they make those
7 arguments, when they ask you for mercy for the one who has shown
8 no mercy, when they plead for the life of the one who
9 deliberately and viciously killed so that he could deliberately
10 and viciously kill again, ask yourself when they make those
11 arguments to you, are they really, are they really trying to get
12 me to follow the law in this case, are they really trying to get
13 me to do my duty in this case, are they really trying to get me
14 to honestly weigh the evidence as the evidence should be weighed
15 in this case?
16 This perhaps will be one of the most difficult decisions
17 you have ever made, but I submit to you that even though it's
18 difficult, it is necessary. I submit to you that days from now
19 when you may talk about this experience, you may think to
20 yourself, this was a horrible, painful expense that I went
21 through serving on that jury. But even though you will say that
22 it was difficult, even though you will say that it was a hard
23 decision perhaps, I ask you today, will you also be able to say
24 that you did your duty? I submit to you that based on the
25 evidence in this case and these two cold-blooded, cruel murders,
1050
1 that the evidence in this case overwhelmingly supports that the
2 defendant should be sentenced to die.
3 I want to go over with you briefly the process that you
4 will go through as to each of Counts 7, 8 and 11. I cannot
5 stress to you enough that this is a decision that you should
6 make based on the evidence and based on the law as Judge Potter
7 will instruct you on what the law is, and I trust that you will
8 make your decision based on those things.
9 I told you before that the government is seeking the
10 death penalty for each of Counts 7, 8 and 11. You will have to
11 consider the aggravating and mitigating factors as to each of
12 those counts separately and make your decision separately as to
13 each of those counts. There is a process, a step by step
14 process that you will have to go through that the Judge will
15 instruct you on, and I want to briefly summarize that process
16 with you.
17 You will first be required to find whether the defendant
18 was at least 18 years old at the time that he committed these
19 offenses. You remember back in the guilt phase we proved that,
20 the defendant even stipulated to that. I submit to you that you
21 will check yes to that question on each of the three verdict
22 forms.
23 The next issue will require you to consider the
24 defendant's intent at the times of the killings. The government
25 has to prove to you beyond a reasonable doubt one or more, only
1051
1 one or more of the following four things: one, did the
2 defendant intentionally kill his victims. I submit to you that
3 there is evidence beyond any reasonable doubt that he
4 intentionally killed his victims. I submit that you can check
5 yes to that question; two, did the defendant intentionally
6 inflict serious bodily injury which resulted in death; three,
7 did the defendant intentionally engage in conduct intending that
8 the victim be killed and/or that lethal force be used against
9 the victim which resulted in the death of the victim. I submit
10 that you ought to be able to answer based on this evidence yes
11 to two and three as well; and lastly, four, did the defendant
12 intentionally engage in conduct which the defendant knew would
13 create a grave risk of death and which conduct resulted in the
14 victim's death. Based on the evidence in this case, you will
15 answer yes to all four of those issues.
16 At that point, you will then consider the aggravating
17 factors, the statutory aggravating factors that the government
18 submits are applicable as to each of these counts. The
19 government will prove those to you and has proven those
20 statutory aggravating factors beyond a reasonable doubt. I will
21 in a few moments summarize that evidence with you.
22 Once you have found the existence of the statutory
23 aggravating factors, you will then look at and consider the
24 existence of any nonstatutory aggravating factors, and I submit
25 to you that the government has proven those to you beyond any
1052
1 reasonable doubt as well.
2 Once you reach that stage in your process, you will then
3 weigh those against any mitigating factors you may have found on
4 behalf of the defendant, and I cannot stress to you enough that
5 it's not a matter of numbers, it's a matter of weight. Ask
6 yourself before you give this defendant a life sentence whether
7 any of his mitigating factors really mitigate what he has done
8 to these two victims, ask yourself that.
9 As to Count 7, the government has proven the following
10 statutory aggravating factors beyond any reasonable doubt: one,
11 that the defendant killed after substantial planning and
12 premeditation to cause the death of Donnie Allen. The
13 government is going -- the Judge is going to instruct you on
14 what substantial premeditation and planning is, and I believe
15 that he will instruct you as follows: Planning means mentally
16 formulating a method for doing something or achieving some end.
17 Premeditation means thinking or deliberating about something and
18 deciding whether to do it beforehand. Substantial planning and
19 premeditation means a considerable or significant amount of
20 planning and premeditation above and beyond the minimum required
21 for the commission of the offense. And I want to talk to you
22 for a few moments about the amount of planning and premeditation
23 that the defendant put into his carjacking and killing of Donnie
24 Allen.
25 You see, the minimum amount of planning to commit a
1053
1 carjacking offense would have been just for him to walk outside
2 of his house out on West Boulevard with the first shotgun that
3 he had bought and carjack and kill someone, leave them there and
4 drive the car to Roanoke. But he didn't do it that way, he
5 didn't do it that way. That was not his plan. His plan was he
6 first bought the first shotgun and when he got it home, I submit
7 to you that he realized that he could not tape the flashlight to
8 the barrel of this gun. Think about the planning that is going
9 through his mind when he makes that decision. This gun could
10 not have a flashlight taped to it like the murder weapon,
11 because you have to pump this gun for it to work. And so he is
12 thinking in his mind at that point when he is out there at his
13 chosen destination to commit this murder that he needed the
14 flashlight, so he takes that gun back and he buys the second
15 murder weapon.
16 Think about the amount of planning, now, that is going
17 through his mind about taping the flashlight to the barrel of
18 that gun, then sawing off the barrel of that gun, and then
19 coloring the lens of that flashlight red. That alone, I submit
20 to you, is considerable substantial planning and premeditation
21 to cause the death or whoever it would have been who approached
22 that intersection at that time. Think about how he not -- he
23 didn't pick a car that was going up and down West Boulevard. He
24 had thought that out in advance as well. He wanted the darkest
25 intersection he could find, an intersection which at the time
1054
1 had no street lights, an intersection that was some several,
2 several feet away from his house and he walked to that
3 location.
4 Think about the planning that went into, he just didn't
5 want any old intersection, he wanted an intersection where it
6 would be dark and he could be secluded. That is substantial
7 planning and premeditation. He walked to that location with his
8 gun loaded, walking, walking, walking, thinking, thinking that
9 he was going to kill so that he could kill again. And when he
10 got to that location, what did he do? He secluded himself in
11 the high grass. And does he act immediately? No, he waits 30
12 more minutes, thinking again, planning again, who will be his
13 victim, which car will finally pull up to the red light that had
14 the driver's side window rolled down? That, my friends, is
15 substantial planning and premeditation.
16 He marched Donnie Lee Allen out of the car, off the
17 road, feet down off the roadway into the drainage ditch area
18 there where he shot him three times from less than 5 feet and
19 then he dragged the body up into the woods to conceal the body.
20 Those are all steps that he took. That was his plan, and that
21 was the plan that he executed. That was plan that he came up
22 with, and that was the plan that he executed.
23 The second statutory aggravating factor that the
24 government has proven to you beyond any reasonable doubt as to
25 Count 7 is the statutory aggravating factor of pecuniary gain.
1055
1 The Judge will read to you the definition of pecuniary gain, but
2 I submit to you that the government proven beyond any doubt that
3 the defendant randomly killed Donnie Allen for two reasons: the
4 car, that's the expectation of pecuniary gain, and his wallet
5 and money, the expectation of pecuniary gain. He killed a
6 complete stranger to get that car and to get the money that
7 person might have in their wallet in case he might need it for
8 gasoline. That is killing for pecuniary gain, and I submit to
9 you that killing Donnie Lee Allen for pecuniary gain after this
10 amount of substantial planning and premeditation outweighs any
11 mitigating factor you could possibly find on behalf of this
12 defendant. That alone justifies a sentence of death in this
13 case, and I ask you to do that as to Count 7.
14 The government will also submit to you and we have
15 proven to you beyond any reasonable doubt the nonstatutory
16 aggravating factors. Future dangerousness, and I ask you to use
17 your common sense when you consider whether the defendant is a
18 danger in the future. You know, Dr. Cunningham came in here and
19 he spent some 15 or 16 hours with the defendant and he wants you
20 to believe that he knows exactly what the defendant will or will
21 not do in the future. What does your common sense tell you
22 about that? You think the defendant may have been on his best
23 behavior when he met with his doctors? Don't you think he was?
24 Is it some big deal that he has behaved himself in prison while
25 awaiting these charges? Don't you think he behaved himself in
1056
1 prison while awaiting these charges so that he could tell you
2 that he behaved himself in prison while awaiting these charges?
3 Don't get that -- don't give that evidence any weight that
4 Dr. Cunningham gave you. Use your own common sense.
5 What would Natasha Heard say if you asked her if the
6 defendant is a danger in the future? Remember, she is the girl
7 that testified under oath. She said, I've blocked so much of
8 this out because, quote, I've just been through so much. What
9 would she say if she had to answer the question about the
10 defendant being a danger in the future?
11 What would Crystal Dennis say if you asked her, what
12 would her two- and five-year-old children say, the two- and
13 five-year-old that inflicted -- beaten up by the defendant in
14 these photographs? If you had to ask them if the defendant was
15 a danger in the future, what do you think they would say?
16 What do you think the witnesses would say if you asked
17 them who saw the defendant holding a knife to the throat of
18 Alesha Chambers? They would say, of course this man is
19 dangerous, and I submit to you that we have proven beyond any
20 reasonable doubt that he is dangerous and that he will be a
21 danger in the future.
22 I want to now turn your attention to Count 8. Count 8
23 also deals with the murder of Donnie Lee Allen, but you will
24 also have to reconsider and refind the existence of the
25 statutory and nonstatutory aggravating factors just as you had
1057
1 in Count 7. You will reconsider those issues again, and I
2 submit to you that you can use the same process that I just
3 explained to you and that you should be able to find beyond any
4 reasonable doubt that as to Count 8, the following two statutory
5 aggravating factors have been proven beyond any possible doubt:
6 substantial planning and premeditation and pecuniary gain.
7 Those statutory aggravating factors have been proven as to Count
8 8 and I submit outweigh anything you could possibly find about
9 this defendant in mitigation.
10 I now want to turn your attention to Count 11 and the
11 statutory aggravating factors that are applicable, which the
12 government has proven are applicable as to Count 11. First is
13 substantial planning and premeditation. There has never been a
14 murder that was more thoroughly planned out than this
15 defendant's cold-blooded murder of Robin Williams. This plan
16 and his intent to kill her started perhaps with he left her
17 apartment when he moved back to Charlotte, but it for sure
18 started the night that he called her and he heard Bennie Greene
19 in her apartment. I told you before in the guilt phase that the
20 fuse at that point was lit and this defendant was on a one track
21 mission, and that was to kill Robin Williams.
22 His intent to kill her, his plan to kill her started way
23 back even as he drove up to commit the fire bombing. You can
24 consider the fire bombing as his intent to kill her. You can
25 consider that as substantial planning and premeditation to cause
1058
1 her death. Think about this defendant yelling "Die, bitch, die"
2 as he threw that fire bomb into her apartment. That was his
3 intent was to kill her. And when that first attempt did not
4 work, what did he do? He waited, he waited. What did he wait
5 for? For her to get out of the burn center, that's what he
6 waited for.
7 He wants you to believe that he was at home waiting to
8 be arrested, but do you really believe that? We have proven
9 that he was in Roanoke stalking Robin Williams, leaving notes on
10 her car. The lady from Camelot even told you that she saw him
11 there in Roanoke a couple of weeks before the fire bombing and
12 that he seemed fine. This defendant would have you believe that
13 he was at home, depressed, waiting on the police to arrest him.
14 Does your common sense tell you that's true when we know we have
15 proven to you that he was in Roanoke stalking her, leaving notes
16 on her car which her brother found? He testified to you about
17 those things.
18 Think about the defendant, after killing Donnie Allen,
19 driving three and a half hours to Roanoke, Virginia to finish
20 the job that he didn't finish when he did the fire bombing.
21 What do you think is in his mind as he makes that drive? He's
22 thinking, he's planning, he's premeditating, well above and
23 beyond even substantial planning and premeditation. We have
24 proven that as to Count 11.
25 The second statutory aggravating factor that the
1059
1 government has proven as to Count 11 is grave risk of death to
2 more than one person other than the homicide victim. In other
3 words, the government has proven to you that not only did he
4 kill Robin Williams, but during the course of killing Robin
5 Williams, he created a grave risk of death to I submit to you
6 three other people. Who were those three people? The first I
7 submit to you is Bertha Williams, the second is the grandchild,
8 the eight-month-old grandchild that she had in her hands when
9 the defendant first confronted her and pointed the shotgun at
10 her and said, where is Robin, and the third person that was in a
11 grave risk of death is Sonji Hill, the neighbor that was outside
12 on the phone.
13 I want to read to you what Ms. Williams said on the
14 witness stand. I got up around 6:00 o'clock, came downstairs.
15 She was -- we went out on the porch. We went out on the porch
16 and sit and wait on my grandbaby. She was supposed to have been
17 there at 6:30, she was late. So I was reading the paper. After
18 she came, I went on back inside, sat her down in the den in
19 front of the TV. She was eight months old. I went in the
20 kitchen and made a batch of brownies, put those in the stove and
21 it was about 7:00 o'clock. I remember looking at the clock,
22 because I had to time my brownies.
23 And after I put the brownies in the stove, I walked in
24 the den and sat down and I heard a big bang, and I said, God
25 Almighty, my stove must be blowing up. I didn't know at the
1060
1 time. Well, I got up and I looked and I sat back down and heard
2 a bang again. Well, I didn't get up that time. Then I heard
3 another bang, and I got up and looked. And as I said to myself,
4 somebody must be shooting at my door, by the time I turned
5 around, Robin was at the bottom of the steps and she said, Mama,
6 what is it? And I said, I don't know, somebody is shooting at
7 the door. And I said -- I picked up my baby and stepped out the
8 front door and looked around, but I couldn't see the back door.
9 And as I said, I don't know what it is, Robin, it must be Mark.
10 And she started turning around and around.
11 Think of the fright and the absolute terror she had at
12 that moment, after having endured those grafts at the burn
13 center, at home where she is supposed to be safe with her
14 mother, she realizes at the point that Mark has come back to get
15 her, this defendant has come back to finish the job and kill
16 her. And Robin is in hysterics, turning around and around in
17 circles, asking her mother, Mama, what should I do? This is
18 what Ms. Williams said she told her: And I said, I don't know,
19 baby, I said, run, just run. And as I was standing in the door
20 holding my grandbaby, out the door she went. And when I turned
21 around, there was Mark looking at me, at my face. He had that
22 gun in his hand and he did like that, and she indicated how he
23 held the gun at her, and he it this way. And I said, Mark,
24 don't shoot my baby. He said, where is she, and I said, she's
25 gone running, leave her alone. And out the door he took.
1061
1 I submit to you we don't have to prove that he intended
2 to kill Miss Williams, we don't have to prove that to you. What
3 we do have to prove to you that was the defendant in such a mind
4 set at that point that he was willing to kill Robin Williams and
5 whoever got in his way was in a grave risk of death? Of course
6 they were. You think about this defendant, armed with this
7 sawed-off shotgun, confronting Mrs. Bertha Williams in the
8 hallway of her home while she held that eight-month-old baby,
9 pointing the gun at her saying, where is Robin? That is a
10 substantial risk, a grave risk to Ms. Williams and that
11 eight-month-old grandbaby.
12 I said, Mark, leave her alone. I said, you have already
13 disfigured her for life, leave her alone. And he was just
14 pulling her by the hair and he said, I'm going to kill her. He
15 said, I'm going to kill you, I'm going to kill myself. And then
16 he started talking about the police. He started talking about
17 some attempted murder. Do you think that the defendant, when he
18 had that shotgun in his hand, when he told Ms. Williams, I'm
19 going to kill you, that put her in a grave risk of death? You
20 should find that beyond any reasonable doubt in this particular
21 case.
22 Think about what happened next. I walked across the
23 grass. They were stopped at the utility box, and I walked
24 across the grass, walked over to Robin and got her by the arm.
25 And Ms. Williams has her daughter by the arm at that point, and
1062
1 it's at that point that the defendant shoots at Robin with a
2 sawed-off shotgun. Did that put Ms. Bertha Williams in a zone
3 on danger that she might have been killed as well? Of course it
4 did, of course it did. Two witnesses told that you Ms. Williams
5 was right beside her. Mrs. Williams told you that Robin fell at
6 her feet when she was shot, when the second shot was fired.
7 Sonji Hill told you that Ms. Williams was close enough to touch
8 her daughter at the time her daughter hit the ground.
9 Think about what went through Sonji Hill's mind when she
10 is on the phone that morning talking to a coworker, minding her
11 own business, and she hears the shots. Mr. Conrad asked her
12 about that. She said, I called 911. Why did you do that?
13 Because Ms. Williams asked me to. What did you do next, what
14 did you see next? Well, I said they passed me, she came to the
15 bottom of the steps, and then once he caught her over the hill,
16 they came back down and they were parallel to me. And then he
17 asked her the location of her apartment.
18 Then Mr. Conrad asked Sonji Hill, and what did you see
19 when you were on your porch? From my porch, I could have turned
20 to my right and he had brought her back parallel to me. He had
21 her by her hair and he was dragging her back down. Listen to
22 this answer. Did there come a time when you called 911?
23 Answer, yes. When I was on the phone with 911, I guess he
24 realized that I was calling. And I was asking what was his
25 name, what was his name, and then when he realized that I had
1063
1 the phone in my hand, he pointed the gun up to me and told me if
2 I didn't hang the motherfucking phone up, that he was going to
3 shoot me, and then I hung up the phone. Do you think she was in
4 a grave risk of death? Of course she was, of course she was.
5 What was your reaction to that? My reaction was I hung the
6 phone up and went in my home. Why did you do that, did you
7 think he was going to shoot you? Yes, I did. Think about
8 those -- think about that evidence when you decide whether the
9 government has reached its burden of proof. I submit to you
10 that we have as to proving that statutory aggravating factor.
11 The nonstatutory aggravating factors as to Count 11 have
12 also been proven beyond a reasonable doubt, future dangerousness
13 of this defendant, the impact of the murder on the Williams
14 family. And you will also consider that as a nonstatutory
15 aggravating factor as to Counts 7 and 8, and that is the harmful
16 impact of these horrible murders on the Allen family as well.
17 And the law allows you to consider those harmful impacts, and if
18 you conclude that we have proven that beyond a reasonable doubt,
19 you can give that aggravating factor as much weight as you want
20 to give it, and I submit to you that you should give it a
21 tremendous amount of weight.
22 The defendant put up Dr. Sultan, the first expert in the
23 defendant's case. Do you really believe that Dr. Salton came in
24 here as an objective credible witness, or do you think that she
25 has an agenda, that she already has her mind made up in advance
1064
1 about how she is going to testify in a death penalty case? Of
2 course she does. You shouldn't give her testimony any weight at
3 all.
4 And then there was Dr. Halleck, and I'm sure Dr. Halleck
5 is a nice person and he seemed like a nice person, but I submit
6 to you he didn't do anything on this case. I respectfully argue
7 to you that he didn't do anything on this case. I asked him,
8 you indicated that you reviewed his medical records, is that
9 right? That's correct, his high school records and employment
10 records, yes. And I believe you also reviewed autobiographical
11 information prepared by Mr. Barnette. Then I asked him, did you
12 review the discovery in this case? Answer, I don't think I
13 did. Question, you didn't look at any of the arrest reports by
14 members of the Charlotte-Mecklenburg Police Department? He
15 answered, I did review the confessions. And the only thing he
16 has reviewed is what the defendant has told him is what it
17 amounts to.
18 And then I said, but my question specifically is, did
19 you review any other police documents other than the statements
20 the defendant made to the police? And he answered, I don't
21 believe so, I don't believe so. This is a person who is telling
22 you under oath that he knows this defendant yet he doesn't
23 bother to really research what the defendant has done in this
24 case. Is that somebody you can rely on in reaching your
25 decision? I said, did you speak to Tasha Heard? No. Did you
1065
1 speak with Crystal Dennis? No. How about Ms. Dennis's two
2 children? No. Did you speak to Alesha Chambers? No. How
3 about Jasper Chambers? No. Did you speak with an individual
4 named Brian Ard about the defendant? No. Did you ever speak
5 with Derrick Barnette about the defendant? Here was his
6 answer: We shared about two words while waiting for my
7 testimony, but we never really discussed the defendant.
8 Question, so you never discussed with Derrick Barnette the
9 allegations that the defendant made about him? Answer, I never
10 discussed it with him, no.
11 Then I asked him this question, and I ask you to think
12 about this over and over again when you make your decision in
13 this case. I said, Dr. Halleck, question, you made no mention
14 of Donnie Allen in your report, why is that? Answer, there was
15 no particular reason. One reason is I had no way of trying to
16 explain what happened there. The reason he left Donnie Allen
17 out of his report is because he can't explain it, and I submit
18 to you that they can't explain it either. And it can be
19 explained only by one reason, and that is this defendant decided
20 in his mind that he would kill a complete stranger so that he
21 could go and kill again. You remember what Dr. Halleck said
22 before you decide to give this defendant a life sentence.
23 I want to make a couple of things as perfectly clear as
24 I know how to make them in my concluding remarks to you. I want
25 you to see this defendant for how he really is, and what he is
1066
1 is a combination of liar and killer, and that's the most deadly
2 combination. He has lied to and manipulated people's emotions
3 his entire life, and he now is attempting to do that to you.
4 This is the defendant who hoodwinked his probation officer, his
5 probation officer thinking that he was living here when, in
6 fact, he was in Roanoke, Virginia living a separate life. He
7 lied to his probation officer. I submit to you he will also lie
8 to you.
9 This is the defendant who Brian Ard said was the best
10 talker, the best interviewer he had ever seen. He fooled Brian
11 Ard; don't let him fool you, don't let him fool you. This is
12 the man, this is the defendant who doesn't even lose his
13 appetite at lunch when he talks about killing a stranger in cold
14 blood. What type of punishment is appropriate for a person such
15 as that? I submit to you that there is only one form of
16 punishment and that based on the law and the evidence in this
17 case, that is a sentence of death for each of Counts 7, 8 and
18 11. Thank you.
19 THE COURT: Mr. Conrad, are you going to talk now?
20 MR. CONRAD: In rebuttal, yes, sir.
21 THE COURT: Defense?
22 MR. LAUGHRUN: Thank you, Judge Potter.
23 I like Thomas, and I've known him a long time. I've
24 wondered what would I say to you folks, and I am inadequate to
25 say it and Mark deserves better and I apologize for that. I've
1067
1 been doing this 18 years. Paul has been doing it 30 years. Am
2 I scared to death? You bet, and I apologize for that. A man's
3 life is on the line, and I apologize if I don't come across as
4 eloquent as Mr. Walker does. But let me start off by telling
5 you there are absolutely no excuses for what Mark did. And what
6 Paul Williams and I talk to you about this morning is not
7 offered as an excuse, it's offered to try in some way to give
8 you a reason for what happened.
9 What do you say to these folks sitting out here, the
10 Allen family, the Williams family? I don't know. This is their
11 time again to grieve for their loved ones. What do you tell
12 them about the pain, the sorrow, the anger that they must feel?
13 I don't know what you tell them, I don't have an answer for
14 that. How do you explain the lack of birthdays and Christmases
15 with the family members being gone? It's natural to have those
16 feelings, folks, but your verdict can't be based on that,
17 because Judge Potter will tell you your verdict can't be based
18 on sympathy, it can't be based on anger or hate for the
19 defendant, it can't be based on that, and if you do that you
20 violate your oath.
21 January 29th was a Friday afternoon that you folks heard
22 from the Williams family and the Allen family up there, and I
23 can tell you from sitting at this table right here with Paul,
24 that was the toughest day of my professional life and I'm sure
25 Paul's, too. When you hear these folks get up here and tell you
1068
1 what a loss they've suffered, you saw the video of Christmases,
2 what good families those folks come from.
3 We don't have Christmas videos, we don't have family
4 pictures after age 15 showing a happy, stable childhood. We
5 don't have the Allen and Williams closeness. We don't have
6 that, because it's not there. Don't you know we would have
7 liked to put up Christmas past for the Barnette family? Instead
8 we put up evidence that the house reeked of alcohol. That's
9 what Mark grew up with, not a warm, nurturing, loving
10 environment like Donnie and Robin grew up in, we don't have
11 that, and that's important. All of you know a home life is
12 stability, role models for parents, that's important. We don't
13 have it. Is that an excuse for what happened? Oh, no. Is that
14 an excuse to take these two people's lives? Absolutely not. Is
15 it a reason? Sure, it is.
16 What do you say to the Barnette family sitting here?
17 They are victims, too, but not near to the magnitude, not near
18 to the extent and not near to the loss that the Allen and
19 Williams families have suffered, but they are victims, too.
20 Their loved one is going to leave federal prison in a coffin,
21 period. The only question is when, when.
22 This case is about punishment. Paul Williams told you
23 the first day he had opening statements that Wednesday
24 afternoon, Wednesday morning. He said, we are not going to
25 contest much of the government's case, and we haven't, except
1069
1 now, except now. What good will become of executing that young
2 man sitting there? None. This case is not about an eye for an
3 eye, a tooth for a tooth. It's not about vengeance, it's not
4 about revenge, it's about punishment. And if executing Mark
5 Barnette by putting him in the electric chair or the gas chamber
6 or lethal injection or whatever would bring back these two
7 folks, don't leave the jury box, vote right now. But it won't,
8 it won't. So your verdict can't be based on vengeance, it can't
9 be based on anger or revenge, because if you do, you lose and
10 violate your oath.
11 You have spoken. You have said that the government's
12 proven to me individually and as a group of jurors that Donnie
13 Lee Allen and Robin Williams died at the hands of Mark
14 Barnette. Paul Williams said it better than I could on
15 January 29th, he says there's been enough death, and he is so
16 right, he is so right. You have already sentenced Mark Barnette
17 as we said earlier to die in federal prison. The question is
18 when, and that's what you have to decide today or tomorrow.
19 Now, let's talk about what life without the possibility
20 of release means, and all of you know what it means. This isn't
21 State Court, folks, you don't get a life sentence and get out in
22 20 years. You've heard the Senior Judge of this district tell
23 you what it meant, it means he will die in federal prison. He
24 is away from society, he is away from the everyday people, he is
25 away from working people, he is away from the good families, he
1070
1 is caged in federal prison for life, no hope of release.
2 There is a sign at one federal prison that reads,
3 abandon hope all ye who enter, and that prison is hell. And
4 that's where that quote comes from, abandon hope all ye who
5 enter, and that's where he is. He has no hope, he has no hope
6 of going to McDonald's, walking the streets, watching a ball
7 game, eating what meals he wants, what clothes to wear. It's
8 gone. Does he deserve that? You bet he does. This case is not
9 about excuses. That's what he -- he deserves to think about
10 Robin and Donnie every day of his life and of what he did to
11 them and the pain he's caused their families. He deserves to
12 think about it, because isn't that the worst punishment of all?
13 It's like going to a dentist and hearing the drill. You think
14 it's worse when you think about it over and over and, God, I've
15 got to get my tooth filled, whatever, over and over you think
16 about it. Every day of his life when he looks out and sees the
17 sun through these windows, he'll never breathe that fresh air,
18 and he doesn't deserve to, a constant reminder of what he has
19 done.
20 Why should you do that? Thomas Walker gave an excellent
21 argument, and I'm sure Bob Conrad will give you an equally good
22 argument for the government. But let's think about this, when
23 do you learn your values and morals and how you view people?
24 You learn that at ages 13 through 15, the formative years,
25 teenage years. Mark's mom and the man he thought was his father
1071
1 divorced, separated at 13, divorced at 15. And you heard what
2 Paul Williams told you in his opening about what his father told
3 him at age 15, what he -- number one, stopped coming around,
4 two, stopped paying child support, stopped being there for him.
5 When the blood tests came back, he was not his father, he said,
6 it's like your girlfriend having babies with another man.
7 Now, let's think about that. You are 13, your mom and
8 dad divorce, dad still stays around a couple of years. At 13,
9 he comes home and said, Mark and Mario, let's go out to dinner.
10 And then the bottom falls out. Be suspicious of women, is what
11 he is telling Mark, you can't trust what they do. And these are
12 the formative years, folks. That's his role model, Derrick
13 Barnette. And up until that time, did Mark have any problems at
14 all? No. No juvenile record, no problems at school, home life
15 wasn't perfect. But that's what happened. That's why he can't
16 deal with women. Be suspicious is what Rick told him.
17 And you heard what Faye Sultan -- whether Thomas Walker
18 or Bob Conrad liked Faye Sultan or not is not an issue here.
19 What she told you was she is an expert in domestic violence.
20 She told you domestic violence is learned behavior. You
21 don't -- you are not born in this world mean, you are not born
22 in this world abusive to women, men, children, whatever, you are
23 not. But he saw it on a regular basis. He saw it every day of
24 his life. You heard Sonia tell you about that, said that Rick
25 came home one day in front of Mark, what he did do? He hit her
1072
1 in the head with a hammer. I'm sure that didn't go on in the
2 Allen and Williams families. But it was a day, it was a fact of
3 life that Mark lived with every day.
4 He told Tasha Heard about it, and you heard Mr. Williams
5 ask Tasha Heard those questions. We would sometimes cry in the
6 closet for what we had been through. That's not normal
7 behavior. You heard Tasha Heard tell you about what they had
8 been through in their lives. Both talked about the beatings
9 that Mark witnessed. Mark saw domestic violence live and in
10 person. He didn't read about it on -- see it on TV, he didn't
11 read about it in the paper. He was there, and he saw it and he
12 lived it, and is that an excuse for what happened? Absolutely
13 not, but it's a reason things happen.
14 Why did Mario turn out so good? You heard Mario
15 testify, and the reason was that Mark protected his younger
16 brother. Mark was the adult for Mario's purpose. He protected
17 his younger brother. The picture shows it; that sums it up
18 right there.
19 You heard Sonia tell about the beatings Mark endured.
20 What did she tell you last Monday morning on that stand up
21 there? She said, it got so bad I went downstairs and shut the
22 door (indicating). Not with your hand, not with a switch, but
23 with a belt. For what? For making a bad grade. That young man
24 lived domestic violence. He had no chance, folks, because in
25 the formative years, the man he thought was his father is gone
1073
1 through a separation. Okay, people get through separations and
2 divorce. But then two years later for him to say, I'm not your
3 dad, I still love you, son, I'm not going to pay child support,
4 I'm not going to come see you, he is gone. And then there is
5 Mark left with the home situation that you heard about.
6 You read Tina Davis's statement about home life. Tina
7 is the one who's got cancer, dying as we speak. You hard her
8 statement about the family.
9 Mark Barnette is abusive to women. All of the evidence
10 shows that. Faye Sultan told you that. She told you that
11 domestic violence is in generations, it's in the family. Mark
12 had two grandmothers murdered. How much more domestic violence
13 can you have? Crystal Dennis, no excuse for that. All domestic
14 related. Tasha Heard, domestic related. Alesha Chambers,
15 domestic related. Anthony Britt, the man who was killed in
16 Newnan for picking on the wrong person that Mark had an
17 altercation with, domestic related. Joanna Baldwin who
18 testified last week, sexual harassment at work. Again, it goes
19 to the root of the problem. Mark Barnette has never, for
20 whatever reason, formalized or come to grips with or learned
21 about his relationships with females. Does that fit in the
22 DSM-4 analysis? No, but it's a reason for what happened. Is it
23 an excuse? Absolutely not, because there are no excuses. You
24 don't have to worry about that in federal prison, there are no
25 coed federal prisons.
1074
1 Why do you think he does so well in federal prison?
2 Because there is not that pressure of those relationships
3 there. And there is no evidence at all beyond a reasonable
4 doubt, the greater weight of the evidence, that Mark's
5 suspicions were true, but we believed them to be true. You
6 don't need to kill him for that. You can isolate him away in
7 society.
8 Thomas Walker doesn't like Seymore Halleck. Let's talk
9 about that for a minute. Dr. Halleck is the, my words, older
10 grandfatherly like gentleman who testified for us last week.
11 Paul Williams asked him, Dr. Halleck, is there any bias in those
12 reports? He gave you the most honest answer, and Paul is going
13 to talk to you about that in a few moments. There is bias in
14 every report, Mr. Williams. That's the most honest answer from
15 any expert. And he didn't get up here and say, well, yes, I'm a
16 psychiatrist and I've made this diagnosis that Mark Barnette is
17 mentally ill such that he didn't know what he was doing and he
18 was insane. That's not what happened. Dr. Halleck got up here
19 and told you just like Dr. Sultan did that he does not fit the
20 DSM-4. You know, that's the big red book that Dr. Duncan,
21 Cunningham and Salton talked about, the Bible if you will of
22 psychology. He doesn't fit that analysis.
23 Now, if those experts were going to get up here and give
24 you as Bob Conrad probably may call a dog and pony show, why
25 wouldn't they come in here and say he is so mentally ill, he
1075
1 didn't know what he was doing at this time. That's not what
2 they told you, folks. You heard their testimony. They told
3 you, yes, he was suffering some symptoms, but he was not insane
4 at the time this happened, he did not know right from wrong.
5 The most important thing you need to glean from that testimony,
6 folks, is Dr. Halleck told you about the illness he suffered and
7 that he would do well in a federal prison.
8 And let's think about that for a minute. Mark's
9 problems deal with women. You take alcohol from an alcoholic,
10 you have no problem. You take drugs from a drug addict, you
11 have no problem. You eliminate slot machines for a gambler, you
12 eliminate the problem. You eliminate the female sides that Mark
13 Barnette's been exposed to, you eliminate the problem, and
14 that's what life in federal prison will due.
15 Now, why else should you give Mark Barnette life? On
16 your verdict form that you are going to get, there is a blank
17 space that says you individually as a juror can decide there is
18 a mitigating factor that ought to be considered, and let me tell
19 you about one that we've proven beyond any doubt. Two people
20 are dead because of the negligence of the Charlotte police
21 department. Is that an excuse for what that young man did? No,
22 absolutely not, but it's a reason. On Defense Exhibit 10, on
23 May 2nd, '96, our police department sent to Roanoke, Virginia a
24 note, a telex, 3413 West Boulevard Charlotte is not a valid
25 address. What other evidence do you need that it is?
1076
1 We know that on January 10th, '93, they answered the
2 first call for service out there. You can see all of the calls
3 for service. They answered at what address? 3413 West
4 Boulevard. And you know that, you know that beyond any
5 reasonable doubt and that's not our burden. You know they've
6 been out there. You've seen the pictures of the mailbox that
7 was still out there then. Is that an excuse for what happened?
8 No, no and no. Is it a reason to give him life in prison?
9 Sure, it is, because if somebody else had done their job, the
10 evidence was Mark moped around the house during that period of
11 time. He wasn't there 24 hours a day, 7 days a week.
12 But if you think about this, he is wanted for this fire
13 bombing incident that is horrific. One of to the telexes talked
14 about he is wanted for two counts of attempted capital murder.
15 Instead of doing DWI check points and speeding check points,
16 don't you think our Charlotte police should have sat out there
17 and waited on the house to arrest this man, and that is
18 something that you have a duty the consider, and they dropped
19 the ball. Is that an excuse for what Mark did? Again, folks,
20 no, but a reason.
21 You know Thomas Walker spent 31 minutes talking to you
22 about substantial planning and planning and planning. If it was
23 such a good plan, why did he come turn himself in, why didn't he
24 keep going? Would he have been caught eventually? Probably.
25 But not only did he drive back to Charlotte. He didn't park it
1077
1 in a place open to the general public, he parked it behind a
2 shopping center, walked home, and his mom was there when Dick
3 Womble the FBI agent called and said, Mark is here.
4 Now, let's think about that for a minute. Here is
5 someone we know has been wanted on all of these fire bombing
6 counts, someone who has committed two murders. Does our police
7 department again send a blue and white zone car out there ASAP?
8 Of course not. They had so much confidence in Sonia Barnette
9 and her ability to handle her son at that point because of her
10 cooperation with them, Dick Womble got in the car and drove out
11 there, gave him some time with his family, and he turned himself
12 into the police. Is that a mitigating factor? Sure, it is. Is
13 it is an excuse for what happened? Absolutely not.
14 Not only did he turn himself in, he confessed three
15 times, and he told them where Mr. Allen's body was, drew them a
16 diagram. Are all of those mitigating factors? Sure, they are.
17 Do they take away from the bad things that he did? No. Is it
18 an excuse for what he did? No. But he made the U.S. Attorney's
19 job and the police department's job easy. He didn't hide behind
20 a lawyer and say, I want a lawyer before I talk to you, I want
21 to talk to somebody about my rights. All of the evidence was he
22 confessed three times. And we played the tape for you, the
23 government didn't play it, we played the tape for you last week
24 because we wanted you to see the remorse, the crying that he
25 went through.
1078
1 Thomas Walker made a big deal a few minutes ago to say,
2 well, when he was talking with Duncan and Grant, he still ate
3 his cheeseburger. Folks, you tell a version of what happened so
4 many times to so many people, think about the number of times he
5 had to tell this. Don't put any weight in that emotional
6 argument, he is trying to get your emotions all riled up.
7 Evidence also is that when Mark was in Knoxville,
8 Tennessee he prayed for the victim's family, also that he told
9 Investigator Womble, when you talk to the Allen family, tell
10 them I prayed for Donnie. What do you make of that? I don't
11 know. Is that the sounds and the signs of a cold-blooded,
12 hopeless, let's execute him, murderer, or does it show somebody
13 who has got some compassion and a heart, as small as it might
14 be? Sure, it does, sure, it does.
15 The area is, why should we give him life? Folks, when
16 Mark was in jail in Newnan, Georgia and here in Charlotte, he
17 made a perfect adjustment and I calculated 587 days as of
18 today. Now, in those 587 days, haven't we all done several
19 things that your boss doesn't like, that your wife, your
20 husband, your boyfriend, your girlfriend doesn't like? And they
21 have said, you were late, you talked back to someone, you talked
22 back to your employer, you were late for work? Sure.
23 And he is not in jail, folks, with choir people or
24 people that sing in the Baptist church choir. He is in jail
25 with the worst of the worst. And no jailer from Butner or the
1079
1 Mecklenburg County jail came in here and told you, oh, yeah,
2 Mark gets in fights all the time over there, he is disrespectful
3 to the guards, he won't do what we ask him to do. And again, if
4 you are in jail with your best friends, that will happen. If
5 you are in jail with people you go to church with, that will
6 happen. But he is in jail with the worst of the worst and not
7 one single writeup, not one single infraction, not one complaint
8 about his conduct, not only here but the federal correctional
9 facility, a federal prison. But, in fact, he did so good there,
10 they moved him out of the seclusion area. That's the type of an
11 adjustment to jail that that young man can make, and you know
12 why? Because there is no female relationships to deal with,
13 there are none. And when you take away the disease, you take
14 away the problem.
15 Mark's got two children, and I'm not about to tell you
16 he is a good farther to those children, he is not. He is an
17 awful father to those children. He didn't pay child support,
18 didn't sent them a card at Christmas, didn't send them a card on
19 their birthday. But one day those kids are going to want
20 answers. Tasha Heard told you about the difficulty she had
21 dealing with all this. They are going to want answers, and the
22 only person that can give them those answers is the man sitting
23 at the table, and if he is gone, he can't give those kids
24 answers to why. Why, Dad, why, Mark, why did you not have
25 anything to do with us, why did you desert us, Mark, why? Tasha
1080
1 can't answer those. That right there is something that you
2 ought to consider in deciding whether or not to execute that man
3 sitting there.
4 A reason to save his life, you heard Dr. Halleck, you
5 heard Dr. Cunningham. Let he tell you a little bit about
6 Dr. Cunningham. If you were facing heart surgery or eye surgery
7 or cancer surgery, you would want the best, and he is the best
8 at what he does. What you heard from him, and he didn't get up
9 here and tell you like Dr. Duncan did, and I'm going to talk
10 about him in just a minute, take my word for it. He said, the
11 numbers bear it out. Paul is going to talk to you about that in
12 a few minutes, and you know, Paul is right, the numbers did bear
13 out Mark Cunningham. You didn't hear the government come out
14 and say any stats that he used or anything of that was wrong.
15 In fact, most of his statistics were BOP, Bureau of Prison
16 statistics. And his goal in all of this was to say, I'm going
17 to do a risk assessment, and he said that Mark Barnette would do
18 fine in federal prison.
19 Bob Conrad took about a 5-inch binder and said, didn't
20 you testify in this certain case? I sure did. Nobody came in
21 and said his testimony in any of those other cases were anything
22 less than credible. So that's something that you can believe.
23 And Thomas is right, we are going to ask you for mercy.
24 What is mercy? Southern Baptists call mercy unmerited favor,
25 something you don't really deserve but you get anyway. Is there
1081
1 no glimmer of goodness in him? Mercy trumps justice, folks.
2 An old Greek saying says, you choose hope over despair,
3 compassion over retaliation and mercy over revenge. So yes, we
4 are going to ask you for mercy, because there is a glimmer in
5 that young man's life that doesn't need to be extinguished.
6 Let's talk about what the government is trying to show
7 you. In State Court, there is a jury instruction that talks to
8 jurors at the end of the case and it says, as a juror, you are
9 not to base your verdict on sympathy, bias or prejudice, you
10 have no enemy to punish, no sorrow to assuage, no friend to
11 reward and no anger to appease. These are emotional cases,
12 folks. There are potentially three deaths involved here. There
13 is the death of Robin and Donnie and the potential death of that
14 young man sitting right there. Don't let your sympathy for the
15 Allens and the Williams' decide this case. More has to happen
16 than just the convictions of two weeks ago. You are never, and
17 His Honor will tell you this, you are never required to impose a
18 death sentence, never.
19 The government sits there and tells you that he is a
20 future danger to society. Folks, there is no evidence that he
21 is future danger to society except form one person, Dean
22 Duncan. Dean Duncan, whose bread I eat and whose song I sing,
23 he gets his paycheck from the same place those two prosecutors
24 get their paychecks. And the evidence was that he got up here,
25 and you talk about hoodwinking in Mr. Walker's word, hoodwinking
1082
1 this jury, he told you in spite of the evidence introduced by
2 Mr. Williams, I work for Judge Potter. Folks, he was asked to
3 do a report by the government, and for him to get up here and
4 try to underscore his credibility saying he works for the Senior
5 Judge in this district, ought to make you look twice.
6 Would you buy a used car from him? Of course you
7 wouldn't. And you ought to look at that testimony for what it
8 is. It's bought and paid for testimony by a government employee
9 who got up here, and they can't say anything else about Mark
10 because that's not -- it's in controversy to the real experts,
11 so he comes in here and talks to you about a PCL-R report or
12 test that he is buying into. And Paul offered this article that
13 you can look at. It talks about how invalid and improper it
14 is. And it is such a bad test, it's not even in the DSM-4
15 psychology Bible.
16 Now, who knows what goes on up here, but don't you think
17 if it was such a reliable instrument, the publishers, American
18 Psychological Association or whoever writes the DSM-4, would
19 have put the PCL-R in there and say, look, use it, learn it,
20 it's got some restrictions, but use it. And that's all that
21 Dean Duncan could tell you about. And it's in controversy to
22 Dr. Sally Johnson, the head of psychiatry, a psychiatrist
23 herself at FCI Butner, came in here and told you, well, the
24 government didn't call her, and she gets her paycheck the same
25 place that Dean Duncan, Mr. Walker and Mr. Conrad get theirs.
1083
1 She came in here and told you that when he was there, he was a
2 model inmate and here's what he told me.
3 I noticed they didn't ask her about the PCL-R. Don't
4 you know why? You don't ask a question, you don't either like
5 the answer or you don't know what the answer is going to be.
6 And if it's such a reliable instrument and measure of
7 psychopathy, why in the world didn't they go out and hire some
8 independent psychologist and come in and tell you about it. The
9 burden of proof is on this table. Or is it because the only
10 person who buys into that is a U.S. penitentiary psychologist
11 based in Atlanta who would have no independent knowledge?
12 Wouldn't you want to hear from an independent person? Sure, you
13 would.
14 The government made a lot of points to try to tell you
15 that after Donnie was murdered at the drainage ditch at Billy
16 Graham and Morris Field, that he drug the body further.
17 Remember all of that testimony? We offered these photographs,
18 they didn't, and what it shows, folks, every red arrow is a
19 place where blood was found in Mr. Allen's Honda, 32 at my last
20 count, 32 places, about the clothes that the defendant wore, and
21 yet nowhere on there can they show you one drop of Donnie Lee
22 Allen's blood.
23 Why is that important? You heard Detective Bob Holl
24 testify. He said yes, they got Mr. Allen's blood, they got the
25 defendant's blood, and they have a serologist at the crime lab
1084
1 who can match it up. When I asked him, question, if they tried
2 to wipe it, talking about the blood, off, you'd still get traces
3 of it with the luminol process, is that right? That's correct.
4 Luminol, remember what he told you, when you spray something on
5 it to tell you if blood has been wiped off, and there is not one
6 speck of blood that they can show that was in Donnie's car, that
7 was his, on the defendant's clothes. So folks, don't buy into
8 this when Mr. Conrad said, well, he planned it so he drug the
9 body down there. There is no evidence of that, and the burden
10 of proving that is on the government beyond a reasonable doubt.
11 No DNA, none of that.
12 Let's talk about what the government contends is sexual
13 harassment at work. It's there. It's part and parcel of the
14 disease that Mark has, and the disease is he can't deal with
15 relationships with women. And you heard what Brian Ard said.
16 Brian, what kind of employee was he? Excellent worker, knew the
17 product. Any history of him being less than honest about
18 changes in the register, money being short, products, CD's,
19 cassettes being short? Absolutely not. He can't deal with
20 women.
21 Let's talk about this Alesha Chambers incident. You
22 heard about this, and the evidence is that she says that she was
23 raped by the defendant. I hope the government is not telling
24 you that our elected District Attorney's office is so busy that
25 won't prosecute a solid rape case. You saw the evidence, you
1085
1 saw it, it's in evidence. The DA rejected that case, two
2 officers. What does rejected mean? There is not enough
3 evidence to go forward with it. And don't you know why? Here
4 is a lady who after the defendant was raped -- raped her, her
5 version, says, I will meet you at the Motel 6 at 8:30 in the
6 morning for consensual sexual intercourse. Now, don't buy into
7 what she tells you. Did she have some problems with the
8 defendant? You bet, but they're not to the scope and magnitude
9 that the government contends they are.
10 The government told you that Mark does haven't a very
11 good probation record. Folks, he is not going to get probation,
12 he is not going to get probation. The fact that he's lied to
13 various people, the fact that he's lied on job applications, the
14 fact that he lied to get the shotgun, you will not see on the
15 aggravating sheet verdict form the defendant is a liar. You
16 won't see that.
17 Judge Potter is going to tell you what the law is.
18 Listen to those statements. He will tell you time and time
19 again, you are never required to impose a death sentence. The
20 burden of proof is entirely on this table. You are never
21 required to execute him.
22 You know, I thought last night I wonder what would
23 happen if Mark Barnette had a heart attack right now? How many
24 people do you think would rush to his aid to do CPR, mouth to
25 mouth, whatever, and do you know why that is? Because in human
1086
1 nature, we are taught to preserve life. You can consider that
2 when you decide what ought to happen. Is he the worst of the
3 worst that deserves elimination from society? You can do that
4 by giving him life without the possibility of release. Let him
5 think about what he has done the rest of his life.
6 I'm almost through, folks, and I'm scared to sit down.
7 I'm afraid if I sit down, I'll sit down and think of something
8 else that I ought to tell you about, something that touches a
9 nerve in your heart that says -- and if I keep talking, maybe I
10 will do that, but I can't. And it's tough for you folks. I
11 don't have to make the decision, you folks do.
12 And let me apologize to you if Paul or I either one have
13 said anything to any witness or voir dire'd any of you jurors
14 that we offended. I apologize, hold it against us, don't take
15 it out against him, he deserves better.
16 Let me leave you with a quote. It's a quote out of the
17 New Testament. Set before you this day are life, death,
18 blessings and cursings. Choose life and everybody will be
19 served. Thank you.
20 THE COURT: Members of the jury, we will take a recess.
21 You have no objection to that, do you?
22 MR. WILLIAMS: (Shakes head.)
23 THE COURT: Take a recess at this time. Do not discuss
24 the case among yourselves while you're out, please, it is not
25 over yet. Thank you.
1087
1 (The jury left the courtroom.).
2 THE COURT: Are the marshals going to need to take the
3 defendant downstairs?
4 MR. LAUGHRUN: No, sir.
5 THE COURT: In that case, recess until 10:55.
6 (Brief recess.)
7 THE COURT: Both sides, my secretary is bringing --
8 Ms. Healy is bringing out the revised jury instructions that are
9 revised, checking them out over the weekend. As you'll note,
10 I've added Pages 2A and 2B, and those are the ones which had to
11 do with definitions. I caution y'all about that, because
12 neither one of you have seen that. I also have added Pages 20A,
13 35A and 52A, which were the mitigating circumstances. And I
14 left out the original things, so don't worry about those.
15 That's all on the front page. At any rate, you'll have over the
16 lunch period to go over those.
17 All right, are we ready for the jury?
18 MR. CONRAD: Yes, sir.
19 THE COURT: Call the jury.
20 (The jury returned to the courtroom.)
21 THE COURT: Members of the jury, the defense now has the
22 last -- not the last argument, but their last argument. Go
23 ahead, Mr. Williams.
24 MR. WILLIAMS: This is very, very difficult to say the
25 least. I don't matter how many times a lawyer gets up here and
1088
1 talks about something like this, it gets tougher every time.
2 If killing Mark Barnette, if putting him in the death
3 chamber, if executing him would bring back Donnie Allen, would
4 bring back Robin Williams, so be it, wouldn't have a problem.
5 If putting Mark Barnette in the execution chamber, sentencing
6 him to the ultimate penalty on this earth would stop the pain
7 and the grief of Robin Williams' family, Bertha Williams,
8 brothers, uncles, and if that would stop the pain and the grief
9 of Donald Lee Allen's family, so be it, wouldn't have a problem
10 with that. But killing Mark Barnette, putting him in the death
11 chambers, sentencing him to death, is not going to stop that,
12 it's not going to change that.
13 So you have to go through some process to make some
14 sense out of this, to try to make some sense out of this, and I
15 think Thomas Walker said it correctly. I think when he said we
16 talk about justice, and when he began this argument a long time
17 ago in opening at the first phase and said the crimes and the
18 murders cry out for justice, they do. But what is that
19 justice? That's what you are grappling with. What do we do,
20 how do we bring the justice, and you are justice. You are the
21 ones who make that individual decision in your heart, in your
22 soul, that moral judgment of what is justice.
23 Someone a long time ago said about justice or talked
24 about justice and said it far better than I could ever say it,
25 in the context of a capital case, if there is such a thing as
1089
1 justice, it could only be administered by one who knew the
2 inmost thoughts of the man to whom he was meting it out, who
3 knew the father and mother and the grandparents and the infinite
4 number of people back of him, who knew the origin of every cell
5 that went into the body, who could understand the structure and
6 how it acted, who could tell how the emotions that swayed a
7 human being affected that particular frail piece of clay. It
8 means more than that. It means that you must appraise every
9 influence that moves men, the civilization where they live and
10 all society which enters into the making of the child or the
11 man. If you can do it, you are wise, and with wisdom goes
12 mercy. No one with wisdom and with understanding, no one who is
13 honest with himself and with his own life, whoever he may be, no
14 one who has seen himself a prey in the sport and the play thing
15 of the infinite forces that move man, no one who has tried and
16 who has failed, and we have all tried and we have all failed, o
17 one can tell what justice is for someone else or for himself.
18 And the more he tries and the more responsibility he takes, the
19 more he clings to mercy as being the one thing which he is sure
20 should control his judgment of men.
21 Yes, we talk of mercy. Mr. Walker said why should you
22 give mercy, why should we even talk about mercy, he gave no
23 mercy to Donald Allen, he gave no mercy to Robin Williams. But
24 are we -- are you to be the same as that Mark Barnette? Are you
25 to be that same person and think that same way? Of course not.
1090
1 You are way above and beyond Mark Barnette. And mercy, we talk
2 about mercy, his life in prison for the rest of your life where
3 you die and you do what you do in a federal prison, is that
4 mercy, is it really mercy? It is a severe, severe punishment
5 for which this young man should suffer. Was it Dr. Duncan who
6 said there are even some prisons that you lock them down for 23
7 hours out of a 24 hour day. That is severe punishment.
8 In trying to determine what this justice is -- and I'm
9 not going to go through all of this, I'm going to try to do this
10 as directly as I can, but I have a few things I want to say so
11 just please bear with me -- in going through this concept of
12 justice and looking at the individual and the person that you
13 are having to judge, you don't know me, you don't know
14 Mr. Laughrun or these lawyers over here for the government, you
15 certainly know Mark Barnette until you walked into this
16 courtroom. And Lord knows, how difficult it is for a lawyer to
17 come into this courtroom and try to present to you his entire
18 life in a day or two or three, and that's what we have had to
19 do. That's what that life history is about. It's not excuses,
20 there is no excuse for what this young man did, there's no
21 justification for what this young man did, but we have some
22 responsibility to help you, to guide you in your decision, the
23 important one you will ever make in your life, to know something
24 about Mark Barnette, to know something about how to get to
25 justice, how to reach that plateau, climb the mountain, get
1091
1 there. And you've got to do some things before you get to
2 justice. You got to do the things before you get to the top of
3 that mountain, don't you? Sure, you do. You have got to try to
4 find out something about the person you're judging.
5 I'm not going to go into Mark's life in great detail,
6 you have heard it. But let me ask you this question, and this
7 is what plagues me as a person, not as a lawyer, I don't want to
8 be a lawyer right now, I just want to talk to you about this,
9 when we are born into this world and the doctor slaps you on the
10 butt and that child of God who is a creation of God, who is
11 creation of the love and affection and, yes, passion of two
12 human beings, when that baby starts crying and the umbilical
13 cord is cut, is the baby crying because he got smacked on the
14 butt or is it because he wants to go back into mama's womb where
15 it's safe and warm and secure?
16 Something has the happen to that child of God.
17 Something has to happen to that child when he comes out of
18 mama's womb, like Mark Barnette. And he comes out into this
19 world, he is innocent. He is a child of God at that point, we
20 all know that. He is not a killer when he is born. He is not a
21 killer when this picture is taken of him holding his brother.
22 He is not a killer at this time in his life. He is not a killer
23 when this photograph is taken of this young man going through
24 life, coming out trying to survive. He is not a killer when he
25 did that. He is not a killer when he gets a little bit older.
1092
1 The point is, something has to happen to him and something did.
2 You don't create a Mark Barnette by cutting the umbilical cord
3 and putting him in this world.
4 So that's what in reaching justice, that's what his life
5 history is about and that's why we presented it to you, to tell
6 you something about him, try and give you some flavor of what
7 happened to him and how he got from this to this (indicating)
8 and to the killing of two people. How do you get from here to
9 there? Isn't that what this is all about, isn't that what we
10 are talking about? And it's our responsibility to try. God
11 knows it's difficult in the time we have to help you understand
12 how he got from there to there. No excuses, no justification,
13 just give you some reason, some concept, an idea to explain it
14 to you as best and as humbly and probably as poorly as we can or
15 do, inadequately.
16 Now, I can't think, we hear about abuse and neglect and
17 all of these things and it happens to lots of people, but
18 growing up subjected to what he was subjected to, it has to have
19 an affect on that young child. It has to affect him every day
20 of his life. Some are more affected by others -- than others.
21 Being subjected to alcohol and drugs and not only being abused
22 by the father, but being -- seeing mama abused, beaten up, hit
23 over the head with a hammer or being subjected to that kind of
24 abuse. Terrible thing for a child to see, a child of God that
25 begins one place and ends up another. That has to have an
1093
1 affect on you. And I can't think of anything more disastrous to
2 the identity, to the soul of a human being who is told, that's
3 your daddy, that's your daddy, that's your daddy, and you grow
4 up in this lie of who you are and where you came from. It's a
5 lie. And in his formative years, before age 15, there were not
6 any problems with Mark Barnette basically. We don't see it.
7 Dr. Sally Johnson says in her Butner report, before age 15, no
8 problems of any substance other than some -- I mean, there are
9 some emotional things going on in Mark, but I'm talking about
10 him getting into trouble with the law or manifesting itself
11 other than potential suicide attempts or some concerns and
12 psychological problems that are going on. But then all of a
13 sudden, his world collapsed as I told you in the opening
14 statement, his identity disappears, it goes into destruction.
15 Daddy takes them out to the steakhouse and says, I'm not
16 your daddy, I'm not your daddy, and not only am I not your
17 daddy, I'm not Mario's daddy. Can you imagine one of you or
18 someone you know taking your child out to a steakhouse and
19 telling them that? The effect, the explosion on the identity?
20 And then it's the beginning of the end, because he tells him,
21 well, what I mean by that is it's like if you had girlfriends
22 who went out and had babies by someone else. And yes,
23 Mr. Laughrun has gone into that and I'm not going to go into
24 that again. But can't you see, can't you see the destruction
25 path that is beginning here on a young man getting into young
1094
1 adulthood, adolescence, whatever you call it at the age of 14,
2 almost 14, his daddy said that to him? And that's his
3 introduction to women, that's what he thinks about women, from
4 his supposed daddy who is not his daddy.
5 So from then on, he doesn't trust women. He thinks
6 they're are all running around on him, he thinks they are all
7 having babies. Anger develops. Anger turns to rage. Not only
8 was Mark Barnette angry in building a rage, he was angry with
9 women but he was angry with his mother, another female in his
10 life who was drinking and doing drugs, having men come in and
11 out of the house. What a role model, what a great role model
12 his dad and his mom were. That's how children learn, and some
13 of them survive it and some of them don't.
14 The United States government has told you about
15 aggravating factors and I'm going to go through those very
16 quickly, because they say these aggravating factors, ladies and
17 gentlemen, are the reason you should execute this young man, put
18 him in the gas chamber or whatever, take him off the face of
19 this earth because of these reasons, and they don't add up. The
20 problem the government has here, I argue to you respectfully, is
21 that there is not a beyond a reasonable doubt here. They can't
22 get over the mountain top. They can't get over this highest
23 burden.
24 They can allege things, but you know that this isn't a
25 situation -- it's not every first degree murder case, you see.
1095
1 You knew that, you were told that when we questioned you to
2 begin with. You don't give the death penalty in every first
3 degree murder case, there has got to be something much more,
4 much beyond that. And this is what they say is much beyond
5 that, because in every first degree murder case there is a
6 victim. There is a victim's family and there is grief and there
7 is pain in every first degree murder case. But you've got to
8 find that it's just so beyond in this case to even consider the
9 death penalty.
10 They say that as to Count 7, pecuniary value, Mark
11 Barnette committed the offense in expectation of the receipt of
12 something of pecuniary value. Now, can you imagine being asked
13 to execute somebody for pecuniary value? It's not right.
14 People steal cars and steal money, they don't get executed for
15 it. But the government is saying one reason you ought to
16 execute this young man is because of pecuniary value. No
17 weight. Sure, it happened, but no weight.
18 Substantial planning, well, without going through all of
19 the substantial planning, I think there are a number of
20 explanations for that, but you have already found that in the
21 guilt phase, don't you see? Don't let the government get you
22 confused here or don't you get confused. You have already found
23 premeditated murder in the guilt, phase which we didn't give you
24 much fuss about. Okay, you have already done, premeditation,
25 you have already found that. Now they want to say substantial
1096
1 planning, substantial planning.
2 Dr. Duncan, the government psychologist, their witness,
3 paid for, paid by the government, employed by the government,
4 chosen by the government to come in here and testify, and he
5 said, Mark Barnette's antisocial personality traits include,
6 government witness, impulsivity or failure to plan ahead. Well,
7 what is wrong here? The government gives you a psychologist, a
8 government psychologist who says he can't plan ahead, and yet
9 they want you to put him in the gas chamber or the execution
10 chamber because he's done substantial planning. How is that
11 beyond a reasonable doubt, how does that go to the top of the
12 mountain in making that decision?
13 Harm to the family, absolutely, absolutely, we talked
14 about that. Don't get caught up in the emotions of that. I
15 told you in my opening statement the profound emotional impact
16 of that kind of testimony. We have to sit there and take it,
17 and we understand it, we empathize with it. Don't let that
18 emotionalize you into a verdict.
19 Acts of violence in the future, I mean, this just isn't
20 true, and for the government to sit here and argue to you that
21 he is a future danger is with all due respect ridiculous. Why?
22 Dr. Cunningham's testimony, Dr. Cunningham came in here as a
23 risk assessment expert and presented to you slides. They make
24 fun of him and they say it's a slide slow. There's nothing
25 funny about that. We are trying to educate you. We are trying
1097
1 to give you some facts, some studies. We don't want -- we are
2 not trying to give you emotionalism to make your decision. Here
3 are some facts, ladies and gentlemen. Here are some studies by
4 the Bureau of Prisons, by the Department of Justice, facts. Did
5 they dispute them? No, not once. Did they bring any experts?
6 Don't you know the United States government has the financial
7 wherewithal to hire God knows how many experts to come in here
8 and say Dr. Cunningham is full of baloney, that those facts and
9 figures and studies aren't worth anything. Did they do it? No,
10 because they can't, can't argue with the facts.
11 Dr. Cunningham says he's not a future danger.
12 Dr. Halleck says he is not a future danger. Real quick,
13 Dr. Halleck, one last question, based upon your interviews of
14 Mark Barnette and the materials that you have reviewed and based
15 upon your opinions and diagnosis, do you have an opinion as to
16 how Mark would do in a federal prison? He has adjusted
17 extremely well, this is his answer, he had adjusted extremely
18 well in the Charlotte jail, at the federal correctional
19 institution. I think Mark's problems are primarily with women,
20 and I think as long as he is not involved in these kinds of
21 contentious relationships with women, he will not be violent in
22 a correctional setting. That's two witnesses who says he is not
23 a future danger.
24 The jail deputies came in and told you he is not a
25 future danger, over a year and a half, said, oh, he is trying to
1098
1 fool this jury, he's trying to fool everybody, he is just being
2 a nice guy while he's in jail. Not one infraction, not one
3 discipline. That's a fact, that's not emotion.
4 And then Dr. Sally Johnson talks about his adjustment,
5 in federal prison. So all of those things go to prove that he
6 is not a future danger. And remember, it's not being a future
7 danger in a federal prison context, not out in society. He is
8 not going to be in society, so he is not a future danger.
9 Killing two people, they talk about. They talk about
10 killing two people as a reason to now kill him.
11 MR. CONRAD: Objection.
12 MR. WILLIAMS: Or to now execute him or have him
13 executed.
14 THE COURT: Wait just a minute. There was an objection,
15 right?
16 MR. CONRAD: Yes, sir.
17 THE COURT: Objection to which phrase?
18 MR. CONRAD: I'm objecting to him saying we're trying to
19 kill him and execute him.
20 THE COURT: Sustained.
21 MR. WILLIAMS: Well, sentence him to death. That's -- I
22 mean, that's what we are doing. But you have already found he
23 killed two people. See, and again, it's going beyond what you
24 have already found at the guilt phase. You found that he killed
25 two people; you've already done that. Now you've got to find
1099
1 something beyond that to sentence him to death, and those
2 aggravating factors are the same and reiterated throughout.
3 I want to say a couple more things about emotionalism.
4 Who was it that said, President Roosevelt, Franklin Roosevelt
5 said, the only thing we have to fear is fear itself, many years
6 ago, World War II. The fear I have as Mark Barnette's lawyer is
7 for you to emotionalize this verdict, get back there and get so
8 stirred up because you just don't like this man. I'm not asking
9 you to like him, but don't get so caught up in the anger and the
10 emotionalism of what's going on here to return a verdict based
11 on that. Why do I say that? Tell you why I said that. For
12 good reason I say that. Not only the victim impact testimony
13 which we talked about, but bringing in all of these women that
14 he had relationships with. You don't execute someone, you don't
15 sentence someone to death because he had bad relationships with
16 women. That's not a substantial aggravating factor. They argue
17 that because it shows his future dangerousness, I assume, but
18 you don't sentence somebody to death because they've had bad
19 relationships with women or that they've been abusive to them.
20 Brian Ard, sexual harassment, you don't sentence
21 somebody to death for sexual harassment. Shirley Williams,
22 Joanna Baldwin, fear, emotionalism. What do I mean? The
23 government puts this young lady on the witness stand to tell you
24 what she told you about what Mark Barnette told her about
25 putting part of his anatomy in her. Now, if that's not
1100
1 emotionalism, if that's not an attempt to interject a racial
2 statement into this case, I don't know what is. And why do I
3 say that? I say it for a good reason. When you get through
4 deciding this case and reach that plateau of justice and you
5 have climbed the mountain, you have got to sign a certificate,
6 that's what the law says. The law says you have got to sign a
7 certificate that says your verdict is not based on race,
8 discrimination, any of those things. That's why I mention
9 this. I'm not interjecting it, it's there, it's part of this
10 case. And their trying to get you stirred up by putting a young
11 lady on the stand for that kind of intolerable conduct is
12 emotionalism.
13 Dr. Duncan, I guess, and I'm getting close to being
14 done, I guess Dr. Duncan, I guess the government is going to get
15 up here and tell you that Dr. Duncan is the man that you can use
16 to put Mark Barnette -- to sentence him to death, because he
17 gave him a test, PCL-R test, therefore, he is a psychopath.
18 Emotionalism is what that is, emotionalism, a test. It's not a
19 very good one, it's guarded in its use, and interestingly enough
20 I'm arguing to you that they are using that for emotionalism,
21 for emotionalist reasons, not future dangers, but trying to get
22 you so stirred up to say this man is a psychopath, you better
23 put him to death. That test is no good, and you score him, you
24 score him, I'll give him a one or two for this, a one or a two
25 for this, subjective scoring by a man who is paid by the
1101
1 government, chosen by the government, employed by the
2 government, and the government wants to ask you to rely on that
3 to sentence this man the death. That's frightening.
4 And lastly, the PCL-R test, does anybody in this entire
5 courtroom from any witness other than Dr. Duncan mention it?
6 No. Capital N, capital O. Their own government psychiatrist,
7 Dr. Sally Johnson, finally, from Butner, examined him, the
8 government. Any mention by her of the PCL-R test? No.
9 Dr. Halleck? No. Dr. Fay Salton? No. And where is Dr. Grant,
10 the government psychiatrist? All you heard from was this
11 Dr. Duncan. Where is Dr. Grant, why didn't they bring him in
12 here? You see, dangerousness, emotion.
13 Let me leave you with these thoughts. Does Mark
14 Barnette, and I have jotted down some notes and I am going to
15 refer to them and then I will leave you and let you decide this
16 terrible decision, make this terrible decision, does Mark
17 Barnette want to be this person who killed two people, who beat
18 his girlfriends or abused them in other ways? Why has he
19 attempted suicide throughout his life, why did he try to kill
20 himself after killing Donald Allen and Robin Williams? Because
21 he does not want to be this person. He is ashamed of being this
22 person. He prayed to Jesus and asked Jesus to forgive him. He
23 is not remorseful, he's cold-blooded the government says, prayed
24 the Jesus to ask him -- when he comes out of this thing he is
25 in, this horrible thing he goes through and this horrible thing
1102
1 he did to these people, and he asks and begs Jesus to forgive
2 him. He said on the video, this is not me. I remember a quote,
3 he doesn't want to be this person. It's a shame what he has
4 become.
5 He is not a monster or an animal as the government would
6 have you believe, he is a product of his life. He never got the
7 substance, the needs, the base, the nurturing so necessary.
8 They want you to execute him for what he did in a two-month
9 period of his entire life. What do we say about the other 23
10 years and 10 months of his life, is it all so bad that he must
11 die? Because you must look at his entire life, you must
12 consider it all. There is a way to severely punish Mark
13 Barnette without saying that he must die. That's life without
14 the possibility of release. Who can we save, what reaction will
15 there be in his family if he dies, his mother, his grandfather,
16 his brother, what about his two children, do we save them? Will
17 we save them by telling them that their father was executed,
18 sentenced by 12 jurors individually to die in the -- in the
19 death chamber, or do we tell them that their father will be in
20 prison for the rest of his life?
21 Will society be protected, will all of the women in the
22 world be safe from Mark Barnette if you sentence him to life
23 without the possibility of release? They will be. There are no
24 women where he is going. Mark's life history is not intended to
25 excuse, justify or diminish the significance of what he has
1103
1 done, but to help explain it and explain it in a way that has
2 some relevance to the decision you must make about sentencing.
3 Life histories are not excuses, they are explanations. No jury
4 can render justice in the absence of an explanation of how Mark
5 Barnette has been shaped and influenced by the events in his
6 life to reach the point he did. Children need dependable
7 attachment, protection, guidance, stimulation, nurturing and
8 some ways of coping with that adversity. Without self worth,
9 any sense of their own value, they become angry, and yes, some
10 become destructive.
11 Abandonment, neglect, abuse, cycle of violence, effect
12 of witnessing violence and abuse. Look at Mark's criminal
13 sentences, what was done to get him help or put him in a therapy
14 program. Not everybody who goes through this does this. It's
15 the combination of all in that human being. Like a bad mix of
16 toxic chemicals, a life is an accumulation of interacting
17 variables. We can't simplify it. Not everyone responds to the
18 same to risk factors. Mark Barnette did not choose his
19 experiences as a child. He did not choose to move about, he did
20 not choose to be abused, he did not choose to be neglected, he
21 did not choose to be separated from his father, he did not
22 choose to learn his values by his father, and he did not choose
23 the emotional consequences of having to grapple with it.
24 So we take the sum of that life, the terrible turns that
25 it took into account in deciding how to punish him. We do not
1104
1 excuse him no do we sentence him to death, we understand life
2 without the possibility of release is a severe punishment and it
3 is enough, it is enough.
4 THE COURT: Mr. Conrad?
5 MR. CONRAD: Thank you, Your Honor. Thank you, ladies
6 and gentlemen. I'm the fourth lawyer you have heard from this
7 morning, and I apologize for that. No one should have to endure
8 that, but I beg your indulgence and I ask for your attention.
9 I'm not the orator that Paul Williams is or that Thomas
10 Walker or George Laughrun are. I'm not very good at giving
11 speeches. I don't intend to give you a speech today, but I
12 promise you with the time that I have left to talk to you that I
13 will attempt to bring back into focus the two people who have
14 sort of disappeared from focus in the last couple of hours and
15 the two people who have sort of disappeared in the last week of
16 this trial, and, of course, I'm talking about Robin and Donnie.
17 But before I do that, I do want to address the issue
18 that Mr. Williams brought up at the end, and I had thought that
19 we would get through this trial without a lawyer playing what I
20 call the race card, and that is trying to make you feel guilty
21 about doing something, making an important decision because of
22 the race of the defendant. We almost got there, but we didn't.
23 And you heard Mr. Williams tell you that the only reason we
24 brought Joanna Baldwin into this courtroom was to inject race
25 into this case and to inject emotionalism, and I flatly deny
1105
1 that.
2 Mr. Williams said to you in opening that when Robin
3 Williams broke up with Barnette, his life ended. Joanna Baldwin
4 testify in the part of the trial called rebuttal, and when they
5 put up evidence that his life ended when Robin Williams broke up
6 with him, we are entitled to rebut that. And we rebutted that
7 by showing that when Robin was hard at work at the hospital,
8 this defendant was taking a 16-year-old back to Robin's
9 apartment and having sex with her there. And he was at work
10 harassing people at work, and it has nothing to do with race.
11 And I resent that playing the race card, I resent the insult it
12 is to your intelligence and I would ask you to see the evidence
13 we presented to you for what it is. It shows a defendant who is
14 not remorseful, it shows a defendant whose life did not end.
15 The people whose lives are really significant in this
16 case, the people who lost their lives because of the defendant,
17 were symbolically reduced to a single red circle on Page 14 of
18 the defendant's life line. The two people whose sole worth to
19 this defendant were in the case of Donnie Lee Allen someone to
20 eliminate just to get a car, an opportune victim in order to
21 obtain a car to murder someone else, and in the case of Robin
22 Williams, a person who dared to defy him, to dare to tell him
23 no, someone he would make pay. And that, ladies and gentlemen,
24 is the very simple, unadulterated truth in this case, the
25 execution of Donald Lee Allen for his car and the murder of
1106
1 Robin Williams because she dared to tell him no; and yes, I am
2 here at this time to ask you for the ultimate punishment for
3 these ultimate crimes.
4 I will not offer you a slick, color-coded time line, nor
5 a generic one size fits all slide presentation. While those
6 things may be worthy of our ad crazy age, I contend and submit
7 to you they are not worthy of this courtroom. You will not hear
8 me defend Cynthia Maxwell, a self-described mitigation
9 specialist, who is qualified for what? To put together these
10 multicolored notebooks, notebooks of deception that omit the
11 most important facts surrounding your decision and reduce Donnie
12 and Robin to a single red circle. Who fails to list the acts of
13 violence committed by this defendant throughout his life. Why?
14 She didn't have room on her time line. There wasn't a
15 conviction, or she didn't think it was sufficiently
16 significant. Who didn't even list the defendant's history of
17 probation on his time line. Why? Because she called down a
18 couple times to Georgia and didn't get an answer, even though we
19 all know that the probation was in North Carolina, not Georgia.
20 Who doesn't list on her time line the conduct that you
21 found the defendant guilty of in the guilt phase of this trial,
22 it wouldn't fit. That time line that was presented to you in
23 this case is a onesided distortion not of who this man is and
24 what he has done, but rather how he can be repackaged and
25 presented to you. Painters and lawyers have been known
1107
1 historically as people who can turn black into white, and I
2 would submit to you you should add mitigation specialists to
3 that list as well.
4 I will not ask you to believe in an expert psychologist
5 who comes in and says to you, I quote, I sit before this jury as
6 a psychologist whose obligation and purpose is to present my
7 scientific findings and knowledge about the defendant, but tells
8 a radio audience the very morning she testified in this
9 courtroom that her purpose is to leave you crying. Who when
10 asked about her book under oath in this court told you her book,
11 the book she left off her curriculum, that that book is
12 primarily about child abuse, but later is forced to admit that
13 the week before, she told yet another radio audience that she
14 was touring Europe promoting her book which is, quote, about the
15 death penalty in the United States. Who thinks that it is not
16 important that you should know that she is passionately anti
17 death penalty, who has been sent two reprimand letters from the
18 North Carolina Board of Psychology, not once but twice, one for
19 testifying to a diagnosis that does not exist and one for
20 exploiting her patient. I will not ask you to believe in that
21 witness.
22 I will not ask you to believe in a traveling slide show
23 presenter from Abilene, Texas who testifies all over the country
24 in death penalty cases for a fee, a fee in the case of a death
25 penalty case in Arkansas of $21,000 and then testifies that two
1108
1 shanks possessed by the defendant in jail are just simply works
2 of art, and a club with batteries inside it is a homemade
3 baseball bat. He testified here in Charlotte last week, who
4 knows where he is testifying this week, he has ten cases in the
5 hamper. But what we do know is regardless of the facts, he will
6 testify as he testified here and as he always testifies that the
7 defendant is not a risk of violence. We know that that is his
8 testimony. No tests administered, it's just the same slide show
9 he presents in every jurisdiction he goes. But here, he omitted
10 several slides that he presents in other jurisdictions and we
11 brought that to your attention, and those slides show that this
12 defendant is not part of the group he is testifying about.
13 He had to admit when asked that this defendant was
14 different than 97 percent of the people studied in his previous
15 test. When I asked him why he had omitted that, he told you he
16 wanted to be sensitive to your time, the one slide that dealt
17 with this defendant was omitted because he was sensitive to your
18 time. And he forgot to tell you that some of these prisoners
19