COLUMBIA, S.C. — Lawyers for Timothy Jones Jr appeared before the South Carolina Supreme Court on Tuesday, Nov. 9, 2021, to argue for a new trial for their defendant. On June 4 2019, Jones was found guilty of five counts of murder for killing his five young children – Abigail Elaine, 1; Gabriel, 2; Nahtahn, 6; Elias, 7; and Mera Gracie, 8 – and sentenced to death.
According to court filings, Jones’ lawyer, Chief Appellate Defender Robert Dudek, challenged the conviction and sentence on the following points:
- The trial court erred by qualifying and disqualifying certain jurors
- Refusing to instruct the jury on the consequences of a not guilty by reason of insanity verdict
- Failing to suppress evidence obtained at a safety checkpoint
- Excluding relevant mitigating evidence during sentencing
- Admitting autopsy photographs of the victims
Dudek began by addressing the issue of the defense not being allowed to call one expert witness, Dr. Flores, to rebut the testimony of Dr. Cruz on the state of Jones’ mental health status and diagnosis of schizophrenia; and not being able to introduce mitigating evidence to support a verdict of not guilty by reason of insanity.
The trial judge, Judge Griffith, did not allow video-taped testimony from Jones’ mother, who was institutionalized due to her mental state.
Presentation of the autopsy photographs to the jury were “carefully orchestrated,” according to Dudek, where they would not look at the photos in open court for fear of how jurors would react.
Justice George C. James said the trial judge allowed the photos in based on a discretionary call that the photos were of probative value.
Dudek’s argument is that the probative value is substantially outweighed by the danger of unfair prejudice. He said that for the jury to see pictures of dead children is enough, but to see autopsy photographs –nine days after the children were killed – would give the jury a reason to impose the death penalty.
The photos were presented to the jury in an envelope. It is unknown if, once back in the jury room, jurors opened the envelope and looked at the photographs during deliberations.
Justice Few asked Dudek if his argument for the introduction of photos as a basis for a new trial is not blunted by the fact Jones’ defense team wanted the photos included.
Dudek then turned to the expert testimony presented that said Jones was malingering. Dudek said Dr. Cruz had scored data pointing toward a malingering diagnosis incorrectly. Defense was not allowed to call their own expert Dr. Flores to rebut Cruz’ testimony that Jones was faking a mental condition.
Five other doctors testified during the trial that Jones was not malingering. Only Cruz, according to Dudek, purported herself to be “the scientist, the objective one” over and over on the stand. Dudek said Flores was “the only one on Cruz’ level” to come in and rescore the data and show that Cruz was off base in her diagnosis of malingering.
Turning to qualifying certain jurors, one female in the jury pool was asked if she could find a verdict of not guilty by reason of insanity. She said she could not unless she knew the consequences. Justice Few asked if the defense would want the jury to know that, if Jones was found not guilty by reason of insanity, after 120 days he could be released.
Senior Assistant Deputy Attorney General Melody Brown responded for the prosecution.
The “battle of experts” was addressed as the trial judge ruled Flores’ interview in court without the jury inadmissible because there was no opinion put forward by Flores that was a result of scientific testing.
As to the inadmissibility of mitigating testimony – the video tape of Jones’ institutionalized mother – Justice Kaye Hearn asked how the Court could uphold the trial judge’s opinion. One of Jones’ line of defense was that he “lost it,” and if there was testimony that his mother was schizophrenic, there might have been a possibility of finding Jones guilty by reason of insanity.
The facts that Jones’ mother and grandmother were both diagnosed with schizophrenia was entered into testimony in court. Only the video of Jones’ mother was excluded in both the guilt and sentencing portions of the trial.
The jury instruction for the possible find of not guilty by insanity is one that confused a possible juror during the vetting process. The woman in the jury pool said she would consider insanity as a verdict but was concerned about what would happen if such a verdict was handed down (the juror was excluded).
In this case, jurors could have decided Jones was guilty, not guilty, not guilty by reason of insanity or guilty but mentally ill.
Brown argued that prosecutors in the murder case did not want the guilty by insanity verdict fully explained to jurors – that the defendant would be evaluated for a mandatory 120 days and then possibly released – so that it would not cloud their judgement in handing down a verdict in the case.
She said prosecutors were “focused on the fairness of the proceedings and that is why they followed the law of the state, and why they did not want that jury instruction. We don’t want a conviction, we want a fair proceeding.”
Jones had plead not guilty by reason of insanity.
Eleventh Circuit Solicitor R. Hubbard, who prosecuted the Jones case in Lexington County Court, then spoke before the court about the admission of the children’s autopsy photographs. There were 569 pre-autopsy photographs taken.
According to Hubbard, the trial judge looked at the volumes of photographs presented pre-trial by both the prosecution team and defense team. In some instances, the photos were the same for both sides. Hubbard said there are only two things that set the prosecution’s selection of photos apart from the defense photos.
“Decomposition plays a role here that it doesn’t play in most cases,” he said. “Usually, decomposition would be a problem. But this was part of the postmortem plan that Jones had the night he killed his kids. He developed a plan immediately. His kids – he couldn’t remember if they were still on the floor of if he’d just put them in the car. He sat down and drew up a list on how to destroy the bodies. He rode around for over a week with these children in his car and they were in an advanced state of composition before he even relinquished them.”
Hubbard goes on to tell the court that after dumping the bodies in the woods in Alabama, Jones tried to hasten the decomposition of the children’s bodies chemically.
Judge Kittridge asked what role the photos played in the trial. Hubbard said the photos were the evidence of the traveling crime scene and therefore the photos were probative to the case.
Justice Few asked what the photos contributed to the case that witness testimony did not.
Hubbard said the photos went to how Jones treated the bodies after death and to his mindset. The way Jones treated the bodies with contempt were the reason the photos were entered into evidence. Hubbard said his plan for not publishing the photos in open court but delivering them to the jury in a sealed envelope was to allow the jury to observe the photographs in their own time.
The photos were submitted to the jury during the sentencing phase, not the penalty phase.
The Supreme Court gave no timeline as to when they would render an opinion in this case. Dudek is asking for a new trial for Jones.