The Jury

All Rights Reserved © 2002 by Kenneth W Woodcock

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Contents

Aiken standard

CHAPTER I

CHAPTER II

CHAPTER III

CHAPTER IV

CHAPTER V

CHAPTER VI

CHAPTER VII

CHAPTER VIII

CHAPTER IX

CHAPTER X

CHAPTER XI

CHAPTER XII

CHAPTER XIII

CHAPTER XIV

CHAPTER XV

Tuesday August 3, 1982

Aiken standard

7-Eleven case to go to jury today.

Aiken, S.C. Judge Haselden McQuire is expected to turn over deliberations to the jury this morning in the much-publicized 7-Eleven murder trial, after a grueling two weeks of courtroom drama. Prosecution and defense attorneys will make closing arguments soon after the court session begins at nine o’clock a.m.

The trial, which has drawn National attention due to the reenactment of the death penalty in South Carolina last year, will be the State’s first capital murder trial since the law change. Two black men, Bertram Lacey and Cazwell Upchurch, are accused of slaying a white storeowner and his son at a 7-Eleven convenience store on Whiskey Road south of Aiken on the night of January 23rd of this year. The accused were apprehended while robbing another 7-Eleven in Clearwater in March.

Tensions in the community have been strained because of the cruelty of the killings. The storeowner, Wesley Abear and his son, Jody, only 18, were shot in the back of their heads at point blank range with a 10-gauge double barrel shotgun. NAACP and other black groups are claiming the accused are merely scapegoats because of their race.

The jury, five women and seven men, have remained sequestered since the trial began on July 19th. The Prosecutions’ key witness is a black man named

(See Jury on A-7)

CHAPTER I

THE ATTORNEYS

Adonis Lee’s head jerked forward with a start, nearly giving him a severe case of whiplash. He had managed to keep his eyes open, in an attempt to appear attentive, but actually he had allowed his mind to drift. Drift to a wooded area miles away where he could hear the baying of hounds in the distance, signaling the possibility of a covey of quail or white-tailed deer. The sweet smell of heavily frosted air wafting its’ way on a wintry morn filled his nostrils, pumping his heart with the excitement of the chase.

Now, the judge, adorned appropriately in his long black robe of authority, dashed Adonis’ daydream by calling the jury to attention with the announcement that the Prosecution was now ready to begin its’ closing argument. In an instant, the crisp cool morning with its’ quest for wild game, vanished. Replacing it was the reality of a hard wooden chair situated in a jury box in an overly warm Aiken County Courthouse building.

Sixteen long days had elapsed since the opening of this trial. Like Adonis Lee, each member of the twelve person panel had long since tired of sitting in those straight back chairs listening to seemingly endless testimony for hours on end. Now, at long last, the trial was heading toward completion. All that remained was the closing statements by the Prosecution and Defense attorneys and the judge’s charge to the jury. Then the twelve could retire to the deliberation room and bring this entire overdrawn performance to a satisfactory close.

Adonis already knew he would vote guilty. The attorney’s statements would be superfluous; the facts already being laid out before the jury in testimonies over the past eighteen days. There was nothing anyone could say at this point that would change his mind. Let the competing attorneys have their moment of glory, their chance to exhibit showmanship and oratory brilliance for the admiring masses in the courtroom and the media. If the other jurors hadn’t made up their minds by now, they must have been asleep during the trial. From where Adonis sat, the two defendants on trial should fry and he would do everything within his power to make sure that happened.

Ben Williamson, South Carolina’s district prosecuting attorney, lifted his large muscular frame from behind an intricately cut mahogany table and approached the jury.

Ladies and gentlemen of the jury, he began, making eye contact with each juror on the panel as he spoke. Six foot four, weighing two hundred and forty pounds, he had played linebacker for the University of South Carolina in the early seventies. Now his dark blue eyes and prematurely gray hair gave him a definite air of distinction that extended beyond the football arena. He could easily be mistaken for a stockbroker or bank executive, but those who knew Ben Williamson saw him as the consummate courtroom tactician and politician. Prior to the trial’s start, the prosecutor displayed an attitude of friendliness and congeniality. This attitude dramatically changed during the trial, as he became a fierce and sometimes belligerent interrogator.

Being the first murder trial in South Carolina since the reinstatement of the death penalty, the case was receiving extensive coverage throughout the state and surrounding areas. It was also the first murder trial in Aiken

County in over fifteen years. Obtaining a conviction and death sentence could do wonders for the prosecutor’s popularity and political career. The Aiken County Courthouse and, indeed the entire city, crawled with reporters, newsmen, and cameramen covering the story for newspapers, radio and TV. Anyone remotely connected with the trial was fair game for an editorial or live interview.

Ben Williamson saw his name in the Aiken Standard and newspapers from Columbia and Augusta, Georgia almost every day, starting a week before the trial began. On many occasions, his picture would appear, captioned, Ben Williamson, Prosecuting Attorney. There was also a tremendous amount of radio and television coverage. The populace of South Carolina would know who Ben Williamson was before this trial was over, and the prosecutor wanted them to know him as a winner. He had every intention of winning a conviction and making a statement against crime in the state. And the timing couldn’t be more perfect. State elections were only four months away. It was Williamson’s intent to win this case, be elected Attorney General in November, governor in four years, and after that, who could know?

You have patiently sat in this courtroom for eighteen arduous days listening to the facts delivered to you in lengthy testimony throughout these proceedings. I commend you for your endurance and attentiveness. You have both seen and heard evidence presented by the State against Mr. Lacey and Mr. Upchurch. Now you are asked to weigh these facts, correlate that evidence and make a determination of the guilt or innocence of the two men. We, the prosecution, firmly believe that we have proven beyond a reasonable doubt that Mr. Lacey and Mr. Upchurch did, in fact, perpetrate this horrendous crime for which they have just been tried.

Adrenalin flowed rapidly and freely in Williamson’s veins as he continued his closing arguments. Key words were emphasized, as he inflected subtle innuendoes here and there in his conversation to highlight vital points. Raising and lowering his voice to maintain attention, he played to

the feeling of the jurors, especially keying on the women, whom he deemed the more emotional.

"On the night of January 23, 1982, of this very year, Mr. Lacey and Mr. Upchurch entered a Seven-Eleven convenience store located on Whiskey Road in our beautiful and law abiding city of Aiken at approximately two-fifteen A.M. There, they brutally murdered a father of five children and his oldest son, only an eighteen-year old boy. First, they forced the man, Mr. Wesley Abear, to open his cash register and give them all the money he had in the drawer. They then proceeded to take Mr. Abear and his son, Jody, to the back room, tie them up and force them to lie face down on the floor. While the victims lay tied and completely defenseless, the defendants placed a ten-gauge, double-barreled shotgun to the backs of their heads, pulled the triggers and sent a family man and his son into eternity.

Ladies and gentlemen, this was not a crime of passion, nor a case of self defense. It wasn’t even a spontaneous reaction at being caught in the act of robbery. This was a crime of premeditation and willful destruction of human life. Mr. Abear had willingly given the defendants all the cash in his register and had put up absolutely no resistance to the intruders. Doubtless, the father pleaded for the safety of his eldest son, whom he loved dearly. Yet, these two men that you see before you, if you can still call them men, Mr. Lacey and Mr. Upchurch executed their cold-blooded plan of annihilation by scattering their brains all over the stores’ tile floor.

A few of the women jurors squirmed in the hard backed chairs, sickened by the prosecutor’s purposely given grisly depiction of the crime. He succeeded in invoking the reaction he had sought. Calmly, he sipped from a tall water glass and allowed himself a moment to internally gloat on his masterful presentation thus far.

Setting down the glass, Williamson turned his attention back to the twelve-member panel.

But Lacey and Upchurch didn’t stop after pulling the triggers. With Mr. Abear and Jody lying there with their lifeblood pouring onto the floor, the defendants continued their evil desecration. Amidst the blood and gore, they methodically removed Mr. Abear’s watch and wallet and stole Jody’s wallet too. Only someone less than human could possibly execute such a heinous crime. Any person who could do this type of act does not deserve to remain a part of our society. The electric chair is too quick and humane a punishment for this type of individual.

Every ear in the jury was attuned to the prosecutor’s words. He could now lead them into the selling points of his argument. He toyed with them, using a long pause before evaluating all that he had been describing.

"Now, let’s examine the evidence the State has placed before you. Item one: On the night of March 23, 1982, Mr. Lacey and Mr. Upchurch were apprehended while attempting a robbery at another Seven-Eleven store in Clearwater, just a few miles from Aiken. This store was identical to the one in Aiken where the brutal murders occurred. You have listened to testimonies by the Clearwater storeowner and the arresting officers regarding the occurrences of that night. To refresh your memory, Mr. Lacey and Mr. Upchurch had entered the store brandishing a ten-gauge, double-barreled shotgun, similar to the weapon used in the Aiken killings. They demanded that the storeowner open the cash register drawer and hand over to them all the money he had inside.

Fortunately, this store was under a twenty-four-hour surveillance by the Aiken sheriff’s department. Officers Riggs and Smith were close by and able to make a speedy arrest before any further crime could by committed. Note that the Modus Operandi, or mode of operation, was identical in every way to the Aiken Seven-Eleven robbery where two persons died. Had Riggs and Smith not been on the scene in Clearwater, it is highly probable another brutal slaying would have occurred that night.

The prosecutor paused at this point to allow the jurors time to digest all that he had been saying. Smiling inwardly, he turned his back away from the panel for a brief moment. Aiken’s county courthouse was unusually warm, the twelve-year old cooling system barely able to keep up in the sultry August weather. Yet, Ben Williamson was cool and confident, both in his demeanor and his appearance. And why shouldn’t he be? Until now, everything in his life had gone just like he planned. Graduating from South Carolina’s School of Law in the top ten percent of his class, he married into one of the largest law firms in the state and in the process, became the husband of a beautiful wife. With his father-in-laws’ connections and his own dynamic personality, he quickly engineered an appointment to his position as State Prosecutor. The job and, specifically, this case, would be the launching pad he required to vault him into a brilliant political career. Williamson knew he could count on his father-in-laws’ support and his networking of friends in all the right state power positions. After all, what father wouldn’t want to see his own daughter in the Governor’s Mansion?

Item two. Williamson began, returning his attention to the jury. We have the incriminating testimony given by Mr. Noah Jefferson. This is an eyewitness account. In deliberating any case, ladies and gentlemen, the testimony of any eyewitness should carry a tremendous amount of consideration. The defense tried desperately to discredit the character of Mr. Jefferson during the trial, and doubtless will try again in their closing argument. But they were unable to have his testimony disallowed. Therefore, everything Mr. Jefferson stated before this court of law must be accepted as fact.

At the time Lacey and Upchurch were arrested, no concrete evidence was available to tie them to the Aiken murders. Ballistics run on the shotgun found in their possession proved negative, it was not the weapon used in the slayings. For some time, it appeared that police investigations would not be able to turn up anything worthwhile to charge the two in the Aiken crime. But then, Noah Jefferson, a two time loser serving time in the state prison for possession of stolen goods and armed robbery, stepped forward from his cell with the announcement that he had information that could put Lacey and Upchurch at the scene of the crime.

With this eyewitness’ account, the direction of the investigation changed and other witnesses were found that more or less corroborated

Jefferson’s story. The prosecutors’ office now felt it could develop a case against Lacey and Upchurch. Of course, there was always the chance Jefferson was making up his story in order to gain leniency on his own behalf, but with the public’s outcry for a conviction, the prosecutor was willing to take the chance.

"Let’s again review Mr. Jefferson’s testimony concerning that eventful night of January 23. According to Mr. Jefferson, he had stopped by the Waffle House on Richland Avenue for a cup of coffee. He estimated the time to be between twelve-thirty and one o’clock A.M. While seated at the bar sipping his coffee, he overheard a conversation between two men taking place in the booth behind him. He recognized Mr. Lacey, whom he had met previously, talking to another man, later to be identified as Mr. Upchurch. The men were blatantly discussing their anticipated plans to rob a Seven-Eleven store. Jefferson distinctly heard Mr. Lacey say, ‘Let’s waste any witnesses and clear the hell out of the county.’

Trying to be nonchalant, Jefferson went to a payphone and tried desperately to call the sheriff’s office, but kept getting a busy signal. When he returned to the interior of the Waffle House, Lacey and Upchurch had already left. After rushing to his car, Jefferson drove to the Seven-Eleven on Whiskey Road. On arriving at the store, he saw the defendants, Lacey and Upchurch coming out of the front door. It appeared Mr. Lacey was carrying a shotgun in his hands. After the two men left, Jefferson entered the store to find two bodies, later to be identified as Mr. Abear and his son, Jody, lying on the floor in a pool of blood. Not wishing to become involved at the time, Mr. Jefferson left the scene. After Mr. Lacey and Mr. Upchurch were arrested in Clearwater, he felt compelled to come forward and reveal all that he had seen.

Williamson was careful to continue eye contact with each member of the jury as he spoke. He sensed that those twelve men and women were in the palm of his hand.

Item number three: We have three persons, a waitress and two customers, who have verified that Mr. Lacey and Mr. Upchurch were indeed in the Waffle House the night in question. Though they did not overhear the conversation between the two, they definitely quantify the testimony of Mr. Jefferson.

The prosecutor had taken a case with basically no physical evidence and laid together a set of circumstantial evidence that could not possibly be called coincidental. Now, with Jefferson’s testimony, he could place the defendants at the scene of the crime at the time of the robbery and murders. He established that the mode of operation in the Clearwater robbery was identical to that of the Aiken slayings. Unfortunately, the State had not discovered an actual murder weapon, but the fact the defendants used a similar gun in Clearwater made for an overwhelming bit of circumstantial evidence. Still, he felt he should review this point with the jury in his finishing statements.

The defense will emphasize the point that no actual murder weapon was found. Why should this surprise us? If I had committed a murder, the first thing I would want to do would be get rid of the murder weapon. Knowing that double-barrel shotgun could be traced to them, I feel confident the defendants proceeded to lose it immediately after their dastardly crime. At this very moment, it probably lies in silt at the bottom of the Savannah River or in a distant burial spot never to be found again. That particular gun may not be found again, but isn’t it interesting that Lacey and Upchurch used a similar shotgun in the attempted Clearwater robbery? Was it merely a coincidence that it was ten-gauge, double-barreled? I believe that some habits are just awful hard to break.

Williamson once more sipped from the water glass. Setting the glass down again, he slowly turned and panned the jury, staring intently into each eye. He could see they were hot. They were tired. He was almost done.

We, who represent the State of South Carolina, have presented our case to you. Our job is over. We believe we have shown beyond a doubt that Mr. Lacey and Mr. Upchurch, who are here seated before you, committed a horrendous crime against the victims, the State and against humanity itself. Now the job becomes yours. You must bring back a verdict to this courtroom. If you believe, as I do, that the defendants are guilty, then your verdict must be so. We are requesting the death penalty in this case. Anything less would be a miscarriage of justice. These men must not be allowed to return to society to again perpetrate their dastardly crimes against innocent citizens of our state. When you weigh all the testimonies and evidence, I feel confident you, as the intelligent and concerned people that you are, will return a verdict of murder in the first degree. Thank you for your time and patience.

He allowed his eyes to linger for a while longer on the jurors before he slowly crossed the courtroom to take a seat behind the large mahogany table facing the judge’s bench. Sitting erect in the heavy wooden chair, Williamson showed a defiant glint of victory in his eyes. From the table opposite Williamson, the defense attorney stood and made his way over to the jury box.

Adonis Lee leaned back in his chair, bringing the front feet off the floor. He flexed slightly, trying to stretch his unused muscles. He shifted back and forth a couple of times to relieve the soreness in his backsides from the constant sitting.

Fantastic job, he thought to himself. Williamson had displayed total confidence. The man would go far. With a gift of gab like that, he should consider politics. Young, good looks, eloquent voice, dynamic style; yeah, Williamson has it all.

Hell, I would vote for him, the juror considered. Deliberation should be easy after a spiel like that. We’ll probably be out after the first ballot. Adonis felt confident a guilty verdict was in the offering.

Clyde B. Sutters stood before the jury box surveying each face in the panel one by one as if he were analyzing every mind represented there. As he stepped up to the railing, Sutters stood out in sharp contrast to the Prosecuting Attorney who had just preceded him. At five foot nine inches he was nearly on a level with the seated jurors. He was not dumpy or unkempt, but far from the debonair image that Ben Williamson had portrayed. There was no nervousness in his demeanor, yet he didn’t exude the air of confidence of his predecessor. Well past sixty, with snowy white hair and small metal framed glasses resting on the tip of his nose, Sutters appeared more a congenial grandfather that an attorney defending in a strategic murder case.

In Clyde B. Sutters’ case, however, looks were definitely deceiving. He had been a renowned criminal lawyer for nearly forty years, the last ten in Aiken. After an exceptional career with a successful firm in Baltimore, Sutters opted to move to a smaller city and open up his own private practice. He had become disenchanted with the hustle and bustle of big city life in Baltimore, too many people pleasing parties he was expected to attend and the facades required to be a part of the in crowd. Sutters believed in justice for all. He cared for the people he represented. But while he preferred to defend the down and out, his firm manipulated him into defending high profile white-collar criminals and gangsters. He did his job well, but when he had had enough, he got out.

Sutters premise was that any individual should have the best possible defense, regardless of color, religion or status in life. That is why he had agreed to accept this particular case. The two defendants, Lacey and Upchurch, were black, poor and uneducated. Other law firms in the area shied away from involvement, not wanting to have their records soiled by an ugly courtroom loss. Local and State news media already assumed their guilt in broadcasts and news releases. In Sutters’ opinion, even if they were guilty, they deserved representation by a competent attorney. Maybe he could not win for them, but he would give it the best shot humanly possible.

Another more personal motive also prompted Sutters to become involved. It had been over fourteen years since he had defended in a murder trial and he relished the chance to again hone the skills that had made him the most sought after mouthpiece in Baltimore. He welcomed the opportunity, challenge and excitement of going head to head with a worthy adversary in a court of law.

On his initial review of the case, Sutters was convinced that Mr. Lacey and Mr. Upchurch were indeed guilty of the crimes charged against them.

Innocence or guilt didn’t really matter; he would still provide them with an adequate defense. However, the more he conversed with the two defendants and the more he delved into the evidence of the case, the more convinced he became that these two men had not committed the killings. What they had done was use terribly unsound judgment, which placed them in a situation that could now cost them their lives.

Bert Lacey and Cazwell Upchurch were familiar with the killings that had occurred at the Seven Eleven on Whiskey Road just like everyone else in Aiken County. They read the newspapers and watched television. The two reasoned that with the fear factor prevalent in the area, it would be relatively easy to pull off a similar robbery at another Seven Eleven. They figured that no store clerk would put up any resistance knowing there was a possibility they may be killed.

Earlier in the week, before the Clearwater attempted robbery, the two broke into a local hardware store and stole a ten-gauge shotgun. So confident were they that there would be no resistance, they didn’t even take any shotgun shells. What they neglected to take into account was that all the area convenience stores would be patrolled by the Aiken County Police Department. After their arrest, Lacey and Upchurch were prepared to enter a plea of guilty for attempted armed robbery of the Seven Eleven and for breaking and entering of the hardware store, but when Noah Jefferson came forward with his story, the two were put into a state of shock. Bert Lacey had known Noah Jefferson through mutual acquaintances, but they were not close. He could think of no reason why Jefferson would make up such a fabrication against them. Nevertheless, here they were, accused of murder in the first degree, with a death penalty staring them squarely in the face.

The eyes of Adonis Lee followed Sutters as the attorney placed his hands on the jury box railing and faced the panel before him. Like Williamson before him, Sutters was careful to make eye contact with each member of the jury as he spoke. His voice was soft, yet very clear, every word uttered distinct and understandable.

Ladies and gentlemen of the jury, you are about to perform the most important civic duty you will ever be called upon to perform at any time in your life. This court is asking you to decide the innocence or guilt of two of your peers, two fellow human beings. Think for a moment and consider the magnitude of this task. There is no margin for error. The State is asking, no it is demanding, the death penalty in the event of a guilty verdict. The very lives of these two men seated before you, Mr. Bertram Lacey and Mr. Cazwell Upchurch, are in your hands. Now, granted, if after careful and proper deliberation, all twelve of you can say beyond any shadow of a reasonable doubt that they are guilty, you are obligated to find them so. However, if there is any doubt, even the slightest whatsoever in the mind of just one of you, then your verdict must be ‘not guilty.’

The defense attorney casually strode back and forth before the jury box as he spoke. The buttons on his coat and shirt top were loosened and his tie was pulled down slightly and to one side. This appearance did not make him seem sloppy; it actually made him look more down to earth or human. Sutters had forgotten the number of times he had faced juries in similar situations, the number of men and women, some guilty, who were released through his endeavors. Years of trial experience were evident in the stage presence and mannerisms of the attorney. Each jury was the same, and at the same time, each jury was different, a paradox of human behavior. He must analyze them, look for moods in their facial expressions. Was there a bigot in the box? Use that prejudice to an advantage. Look deep into the eyes to find which jurors are sympathetic. Say the right words and the prosecutor’s case could be dashed to shreds; say the wrong words and two men could go to the electric chair for a crime they did not commit. Sutters knew he carried an ace that the prosecutor did not have. It takes twelve jurors to convict, but only one not guilty to cause a mistrial.

Sutters felt the evidence brought forward by the prosecution during the trial was weak. There was no identified murder weapon. No one had witnessed the murders when it was actually perpetrated. The State’s key witness was an ex-con now serving time in prison. There had to have been some kind of deal swung. He again scanned the weary faces seated before him. They were honest, upstanding citizens wishing justice to be served. Sutters’ tact would be to emphasize the law. The defendants must be found guilty beyond any reasonable doubt. Any reasonable doubt.

The defense has tried in every way to be open and up front in this court of law. Mr. Lacey and Mr. Upchurch have freely admitted to being guilty in the attempted robbery in Clearwater. They have also confessed to breaking into a hardware store here in Aiken and stealing a shotgun, but interestingly enough did not take any shells, even though they were on a shelf in plain view. Yes, Bert Lacey and Caz Upchurch are more than willing to admit that they are thieves. But, ladies and gentlemen of the jury, they are not murderers and they did not slay Mr. Abear and his son Jody.

Sutters paused and perused the faces of the jury. They were intently watching his every move and anxiously awaiting his next words. Words backed by forty years of experience in courtrooms just such as this.

"The