1

1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR MARION COUNTY
2
CASE NO. 2011-CF-3085-A-X
3

5 STATE OF FLORIDA,

6 Plaintiff,
vs.
7
JAMES EDWARD BANNISTER,
8
Defendant.
9 _______________________/

10 *** EXCERPTED TRANSCRIPT ***

11 Jury Trial - Death Penalty Phase

12 Closing Argument by Defense Counsel

13 PAGES 1 - 62

14
HELD BEFORE: THE HONORABLE WILLARD POPE
15 DATE TAKEN: November 16, 2017
TIME: 8:35 a.m. - 4:52 p.m.
16 PLACE: Marion County Courthouse
110 NW 1st Avenue
17 Ocala, Florida 34475

18 This cause came on to be heard at the time and

19 place aforesaid, when and where the following

20 proceedings were reported by:

21 Karla Layfield, RMR

Kerr & Associates
22 614 North Sinclair Avenue
Tavares, Florida 32778
23 (352) 742-3144

24

25
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1 A P P E A R A N C E S:

2
ROBIN ARNOLD, ESQUIRE
3 REBECCA FLETCHER, ESQUIRE
OF: Office of the State Attorney
4 110 NW First Avenue, Suite 5000
Ocala, Florida 34470
5 Attorneys for State of Florida

6
TERENCE M. LENAMON, ESQUIRE
7 245 SE 1st St., Suite 404
Miami, Florida 33131
8 terry@lenamonlaw.com
Attorney for Defendant
9

10 TANIA Z. ALAVI, ESQUIRE

Alavi, Bird & Pozzuto, PA
11 108 N. Magnolia Ave., Suite 600
Ocala, Florida 34475
12 talavi@abplegal.com
Attorney for Defendant
13

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1 ****

2 THE COURT: Mr. Lenamon.

3 CLOSING ARGUMENT BY DEFENSE COUNSEL

4 MR. LENAMON: Good morning.

5 (Chorus of good mornings.)

6 MR. LENAMON: Where do we begin? We have a

7 lot to talk about. Last time I talked to you

8 individually was back in jury selection when you

9 all made me some real important promises, and I

10 suspected that this day would come.

11 If you remember, I spent a lot of time

12 talking about penalty phase and not a lot of time

13 talking about the other part of the trial. And

14 it's been a long journey for all of us. You have

15 taken on a role which requires great

16 responsibility, and you have. You have done your

17 job. There's no question about that.

18 But we need to talk about how you do your

19 job now. There are some really important things

20 that you got to keep focused on. And the first

21 thing is is that when you look at this case, when

22 you look back at the facts, you have to

23 distinguish real from not real, supported

24 evidence from unsupported evidence, conjecture,

25 speculation from what is really going on.

 4

1 Was there enough evidence to convict

2 Mr. Bannister of the crimes charged? Look back

3 to my closing statement, look back to my opening

4 statement.

5 MS. ARNOLD: Objection, Your Honor.

6 THE COURT: I will sustain that,

7 Mr. Lenamon.

8 CLOSING ARGUMENT BY DEFENSE COUNSEL (cont'd)

9 MR. LENAMON: I told you pretty much there

10 was. I told you that we had a situation where a

11 conversation is recorded with a cousin and my

12 client is saying things that only can lead to one

13 thing, his guilty conscience, this involvement in

14 something that you ultimately found him

15 responsible for, and legally that is correct.

16 But we're in a different place now

17 because, as I talk to you over the next hour or

18 two, I'm going to point out to you how the things

19 that were not said, that were not proven, that

20 were not shown are going to allow you to take a

21 journey where the only just verdict in this case

22 is life. And we're going to talk about that in

23 detail.

24 But before we get to that point, there's

25 one aspect that Ms. Robin talked about that's

 5

1 never going to leave this process, and that is

2 that you are never ever required to vote for

3 death. Ever. And that you can attach whatever

4 reason you want to not vote for death.

5 And I would suggest there are plenty of

6 reasons, and the biggest one is that we don't

7 really know what happened here. We don't. I

8 mean, I don't know what part of the trial

9 Ms. Arnold was involved in when she said there

10 was this conspiracy to lure LaShawna over there

11 because she was now part of the phone

12 conversations, and all of that. There's nothing

13 to prove any of that.

14 MS. ARNOLD: Your Honor, I object. Can we

15 approach?

16 THE COURT: Yes, ma'am.

17 (The following proceeding was held at

18 sidebar outside the presence of the jury.)

19 MS. ARNOLD: He's now coming out, and

20 skirting around and saying to the jury they

21 should sentence him to life because of doubt

22 about the guilt phase of the trial.

23 MR. LENAMON: That's not accurate, Judge.

24 I'm going to be arguing that all the evidence in

25 this case supports the reduction of weight and

 6

1 the aggravating factors -- the reduction of

2 weight and the aggravating factors; the CCP,

3 which they chose to present and argue, allow me

4 to argue every factual thing that happened in

5 this case.

6 THE COURT: Well, it doesn't permit you to

7 reargue the weight of the evidence in the guilt

8 phase.

9 MR. LENAMON: Absolutely does, Judge.

10 Absolutely. Because they used the CPP -- she

11 just got up there for 45 minutes and talked about

12 how he went there with a firearm. He made these

13 calls. He lured -- all that stuff.

14 Clearly, the facts are going to show here

15 that he was was under the influence --

16 THE COURT: Pipe down just a little bit,

17 Mr. Lenamon.

18 MR. LENAMON: Clearly the facts show he was

19 under the influence, and that he was using large

20 amounts of drugs, and he was out of his mind.

21 And there is evidence to support that.

22 THE COURT: I mean, I think you can argue

23 that evidence.

24 MR. LENAMON: And that's what I'm arguing,

25 Judge.
 7

1 THE COURT: But you're asking questions

2 specific -- you're pointing out, you know, I

3 don't know where the prosecutor was. You know,

4 first of all, stuff like that is improper, Mr.

5 Lenamon.

6 You certainly can make that argument. But

7 questioning the validity of the evidence in the

8 guilt phase, at this point after the jury has

9 made a determination that he's guilty --

10 MR. LENAMON: Judge, she argued -- if you

11 remember, she argued in her closing argument in

12 penalty phase that my client lured over LaShawna

13 because he wanted to kill her because she knew

14 about the conversation that was occurring between

15 her and Joc.

16 There's not a piece of evidence that

17 supports that. So for the Court to allow her to

18 argue that and shut me down --

19 THE COURT: Okay. Well, I'm not going to

20 shut you down, Mr. Lenamon.

21 What I want to suggest to you, without

22 making reference to what the prosecution has done

23 or hasn't done, or whether you think that they

24 weren't here, or something like that -- if you

25 argue that there's no evidence to support the

 8

1 notion that someone was lured as a reason for not

2 imposing the death penalty, I'm not going to shut

3 you down from that.

4 But the thing about where she was and -- I

5 think maybe you might be a little careful because

6 you might be skirting the issue of residual

7 doubt.

8 So rephrase your comments.

9 MR. LENAMON: Yes, sir.

10 (End of sidebar, and the following

11 proceeding was had before the Court and in the

12 presence of the jury.)

13 CLOSING ARGUMENT BY DEFENSE COUNSEL (cont'd.)

14 MR. LENAMON: So we're going to talk about

15 how important the facts are here because

16 essentially there's a bunch of things going on

17 that you have to do as jurors in your

18 responsibilities.

19 As we talked about -- as Ms. Robin Arnold

20 talked about, you have aggravating factors. You

21 have to first come to the conclusion whether

22 those aggravating factors have been proven beyond

23 a reasonable doubt. And I don't dispute that

24 some of them have.

25 I mean, clearly the murders have. You

 9

1 found him guilty of the murders. The more

2 important one is this cold, calculated and

3 premeditated which is a distinctive different one

4 from what she decided in the first part.

5 Remember, we talked about in jury

6 selection how there's only a limited defense to a

7 state of mind that someone is insane. We didn't

8 bring insanity as a defense in the first part of

9 the case. We said he wasn't involved in this.

10 It wasn't proven beyond a reasonable doubt.

11 Now -- back then you were absolutely

12 correct when you looked at it and said we believe

13 the evidence shows premeditation because of maybe

14 some of the phone calls. Maybe some of the

15 things that are going on. But at that point you

16 weren't told -- or it couldn't be pointed out

17 through expert testimony that his state of mind

18 is in question because of the drugs that he used

19 at the time.

20 So this becomes important, and I'm going

21 to explain in detail -- this becomes important to

22 how you look at weighing the aggravating factors,

23 giving weight to the aggravating factors -- the

24 murders, and the cold, calculated and

25 premeditated aggravating factors. We'll talk

 10

1 about that in detail how those facts are really

2 important. Okay.

3 Because this is not a decision-making

4 process of whether he did it or not. He did it.

5 That's what we're here to say; he did it. You

6 made that finding that he did it. No question.

7 Okay. Now, we're here to decide, well, what was

8 going on? They have never backed down from their

9 position.

10 They don't have to prove motive, and they

11 didn't. They didn't show any motive. There's a

12 reason for that. We know now there's a reason

13 for that. Because this man wasn't in his right

14 mind at the time that this happened. And that

15 the period of time that we're talking about is

16 reasonable, even with all these activities,

17 including Diaz's conversation where he is having

18 these conversations with Diaz.

19 He is sniffing, and he's acting

20 irrational, and they try to play down that he was

21 acting irrational. I impeached their own

22 detective about his irrationality. And Detective

23 Smith got up there and said, no, he was just

24 fine. We know that they have been hiding the

25 ball on this issue, and it's important that --

 11

1 THE COURT: Mr. Lenamon, it's improper to

2 make accusations against counsel for the other

3 side. All right.

4 CLOSING ARGUMENT BY DEFENSE COUNSEL (Cont'd)

5 MR. LENAMON: The State of Florida has a

6 responsibility to you, as jurors, to be truthful

7 and give you the ammunition you need to make your

8 decision. What did they give you? Did they give

9 you Randall Neumann's complete statement in

10 direct examination? No, they didn't.

11 They didn't ask him about the conversation

12 he had with Mr. Bannister where Mr. Bannister was

13 talking about the video games, being out of his

14 body, out of his mind. They didn't ask him that.

15 I had to ask him that.

16 So what's important that you have to keep

17 in play now is that this is a playing field where

18 it's your responsibility not to get tunnel vision

19 and to think, you know, this man brutally

20 murdered four people including two children, and

21 I'm shutting down. Because the biggest problem

22 with that is you all promised me way back when, a

23 month ago, when we started talking to each other,

24 you promised me a bunch of things.

25 Number one, you promised me that you would

 12

1 keep an open mind and listen to all the evidence.

2 Number two, you promised me that just because

3 children were murdered that that is not going to

4 be a jump right into the death penalty for you.

5 And you would look at all the

6 circumstances surrounding that. And honestly,

7 what circumstances do you know other than that

8 both those kids were killed in a house that was

9 burned down. What do you know? I mean, really

10 what do you know about the facts and

11 circumstances?

12 They certainly didn't come from

13 Mr. Bannister or Mr. Neumann or from any of the

14 detectives. What we know is that the two

15 children and the two women were killed with

16 gunshot wounds.

17 And that Mr. Bannister was located using a

18 cell tower in that area for an hour and a half

19 period, from sometime around 11:00 p.m. until

20 sometime around 12:30 or 12:45, and that he

21 starts going back to his house after that.

22 That's what we know.

23 We know that Randall Neumann says -- and I

24 brought the transcripts that are in evidence. We

25 know that Randall Neumann says that --

 13

1 "Question: We'll talk about that, but

2 let's jump ahead for a second. It was your

3 testimony on direct examination that he was

4 ranting. Is that right?

5 Yes.

6 That it was like a movie. Is that right?

7 Answer: What do you mean by that?

8 Question: He was describing to you that

9 this was like a movie. Isn't that true?

10 Answer: He said it felt like a movie when

11 it was happening, yes.

12 Question: He was out of his mind?

13 Answer: Yes.

14 Question: Like a video game?

15 Answer: Right.

16 Question: Couldn't stop it. Wanted to

17 stop it but couldn't. An-out-of-body experience.

18 Is that right?

19 Answer: Yes."

20 That's Randall Neumann and our client, my

21 client in that recorded conversation you heard.

22 "Smoked about seven or eight of them,

23 Pint, with coke, and I was dumping, like, a whole

24 bag of coke on it, on the blunt for that shit.

25 So about seven blunts of that shit with seven

 14

1 bags of clean on top of it."

2 That was the conversation he had with

3 Randall Neumann that you heard yourself, or part

4 of the conversation. What I'm going to talk

5 about in a little while is I'm going to talk to

6 you about how you're going to be able to use the

7 information that I presented to you in multiple

8 ways because you're dealing with wearing a number

9 of different hats.

10 But through all this process, I want you

11 to remember that for any reason you want you can

12 vote for life. There's nothing stopping you from

13 voting for life. Nothing.

14 So even if you find that the aggravating

15 factors outweigh the mitigating factors, you, as

16 an individual, can vote for life. I'm going to

17 go through the verdict form at the end of this

18 and show you this, okay -- why you can do that.

19 But we're going to talk a little bit about

20 what you also promised me which is important, and

21 I think this clearly exists, without question,

22 based on my observation.

23 You promised me that you would respect

24 each other as individuals. And that if we got to

25 a point, when we were in the penalty phase, that

 15

1 you would respect your fellow juror and protect

2 your fellow juror if there were other jurors that

3 were trying to bully or change a person's mind.

4 Because at the end of the day this is what

5 it's like. It's you, you alone are making a

6 decision whether to authorize, under the laws of

7 our state, the execution and killing of James

8 Bannister. That's what you have to decide.

9 There's no way around that factor. There's no

10 way to make that fluffy and nice or to distance

11 yourself from that.

12 And when they train people in the Army to

13 fight to kill, one of the things they do is they

14 depersonalize the enemy. They make the enemy as

15 non-human as possible to make it easier for us as

16 human beings to commit this -- probably, in the

17 hardest situations most of the time, but in war

18 it's a riotous thing to do. This has been no

19 different, folks. This has been no different.

20 One side has a responsibility to try to

21 get the death penalty. And it's my

22 responsibility, from the very beginning -- and I

23 knew that coming into this. My responsibility

24 from the very beginning was to convince you to

25 spare his life. Because you have that power.

 16

1 We talked about that, that individual

2 power that you have in this particular case

3 unlike the first part of this where you as a

4 group had to talk. And you spent a lot of time

5 doing your job and it's appreciated by all of us

6 in this community how much time you took to look

7 at the evidence, to review the evidence, to talk

8 among yourselves, to spend nine hours, nine hours

9 deliberating because you knew how important your

10 decision was.

11 That is a service that you did. But the

12 rules were different then than they are now. The

13 rules that exist now is that each of your

14 decision is an individual, moral responsibility.

15 It's a moral decision for each of you.

16 If you believe death is appropriate, that

17 is a moral decision that you can make. If you

18 believe life is appropriate, that's a moral

19 decision that you can make. So as we go into

20 this phase, there has to be clarity in

21 understanding your responsibility here. This is

22 not a group activity.

23 And although at the end of the day, you

24 are going to tally votes for a number of things,

25 like the aggravating factors and the mitigating

 17

1 factors; ultimately the most important tally of

2 vote is whether you are agreeing to put your name

3 in a group that's saying life or death.

4 It's your decision individually. And

5 nobody can change that, and nobody can influence

6 that -- certainly, they can influence that. I

7 mean, if there's a renegade group out there -- I

8 don't think this is the case -- that someone

9 feels, you know, death, we have to send a

10 message. The community, the family is waiting

11 for this.

12 I would suggest the family is not waiting

13 for this. I'm going to talk to you about

14 Ms. Wade in a little while. Because this is

15 about humanity. This part of the case is really

16 about humanity. You certainly have a function

17 that you attach weight to things, facts to

18 things. And we're going to go through that, and

19 I will work it through so I can give you all the

20 tools you need so you feel comfortable in your

21 decision.

22 So this is about humanity. I would

23 submit that the most humane moment we have seen

24 in this trial was the first part of this case

25 when Ms. Wade got on the stand and testified, and

 18

1 told you that there was a moment in time that she

2 went to a court hearing and that she was trying

3 to reach inside the mind of Mr. Bannister because

4 she wanted an answer.

5 She was seeking to find a way to forgive,

6 and she was struggling with that. I would

7 suggest that Ms. Wade's statement and presence in

8 this case is the most humane thing that we have

9 to offer in this process over this period of time

10 of several weeks.

11 Then you saw Ms. Wade come back and read a

12 statement and tell you how unique both her aunt

13 and her cousin were. How important they were to

14 her and to her life. And you heard other things

15 that we'll talk about later on which is called

16 "victim impact" about the children.

17 But I would suggest you need to grab hold

18 of that humanity because that's what this is

19 about. But now it's you who have to reach into

20 yourself and try to find that humanity to get

21 past this horrible, horrible, horrible crime.

22 I'm going to try to help you understand

23 some of the things that were going on over the

24 week, or so, leading to this and what we heard in

25 the trial, and what we have heard in the penalty

 19

1 phase and what the evidence is.

2 So essentially here we have three things

3 that we're looking at. We have what is called

4 the aggravation, the aggravating circumstances.

5 And Ms. Arnold went through those already. We'll

6 talk about those.

7 And we have the mitigating circumstances.

8 As always, we have this part of you that you're

9 never required to vote for death for any reason.

10 Then we have this thing that, although, it's

11 included in the mitigating circumstances, I'm not

12 going to address it in the context of the

13 mitigation.

14 But the first three mitigating

15 circumstances reference that you can find it as

16 mitigation if you believe it has been established

17 by a greater weight of the evidence. What is the

18 greater weight of the evidence?

19 The aggravating factors, the aggravating

20 factors have to be proven beyond a reasonable

21 doubt by each of you individually. So the

22 process is, technically, if you look at each of

23 the aggravating factors, and there's several,

24 there is the ones where they group the murders

25 together.
 20

1 So we have, for example, Joc's murder, and

2 then we have the three other murders. Those are

3 considered aggravating factors. Then we have the

4 prior violent felony of Mr. Bannister when he had

5 the armed robbery in Baltimore.

6 Those four are grouped together, and you

7 can give that whatever weight you want. You put

8 weight to it. You establish the weight. You

9 decide how much weight it is. You individually

10 give it whatever weight you want to give. The

11 same thing as we get down to the cold,

12 calculated, premeditated aggravator, that is

13 individually, and you give it whatever weight is

14 given, if it's proven beyond a reasonable doubt.

15 So step one is proving it beyond a

16 reasonable doubt which is, as I said, the murders

17 are no brainer. They are already in existence.

18 These aggravators have been proven beyond a

19 reasonable doubt. They exist. We know that.

20 The next question is the robbery. They

21 put a certified conviction showing he has a

22 robbery. Was that proven beyond a reasonable

23 doubt? I think it was. I mean, that's what they

24 have to do. They gave you a certified

25 conviction. There is no question.

 21

1 I didn't challenge the conviction. He was

2 over 18, and he went to prison. No question the

3 aggravating factor exists. Then you have to

4 attach weight to it.

5 With the robbery, you may say to yourself,

6 well, I never really heard any of the facts about

7 the robbery. And although he went to prison, I'm

8 not sure what really happened. So I'm going to

9 give it some weight. I'm not going to give it a

10 lot of weight.

11 I'm going to get back to the three murders

12 in a little bit because they are going to be

13 talked about in this box. We'll call this box

14 facts and testimony. All right.

15 So then you are going to go down to the

16 next aggravating factor: Cold, calculated and

17 premeditated. It's heightened premeditation.

18 It's a different level of premeditation than what

19 you had to deal with in the first part of the

20 case.

21 And you have to weigh that based on the

22 facts. Now, Ms. Arnold gave you her version of

23 facts which I suggest are not supported by the

24 evidence. There's a lot of conjecture, a lot of

25 speculation. You're assuming things. Okay. You

 22

1 can't assume things when we're looking at the

2 proof of an aggravating factor.

3 And if you were assuming things, it needs

4 to go to the weight if it's been proven. Okay.

5 So if there's a proof that you believe that the

6 cold, calculated and premeditated was proven --

7 the heightened premeditation was proven beyond a

8 reasonable doubt, individually -- this is you,

9 only you making a decision -- then you have to

10 assign weight to it.

11 And I would suggest -- as we talk about

12 the facts and testimony, I'm going to talk to you

13 about how we apply the weight to it. The final

14 issue is with the two children under 12 which

15 Ms. Arnold had talked about that you should give

16 great weight to.

17 There's no question that that aggravating

18 factor is created, in part, because children are

19 such a special part of our lives. There is no

20 question about that. And you certainly can give

21 any weight you want to that aggravating factor.

22 But one of the things that you have to

23 keep in mind, as you look to that, and I think

24 it's your responsibility to do so, you have to

25 keep asking yourself what really happened. What

 23

1 was in Mr. Bannister's brain at this time? What

2 was going on? Why? How? When? And we're going

3 to talk about that in regard to the facts and

4 testimony in a minute.

5 So those are the aggravating factors that

6 you are going to have to deal with. The

7 mitigating factors and the mitigating

8 circumstances, for the most part, which I'm going

9 to talk about is James' life. Now, it's

10 interesting that in the first part of the closing

11 we didn't hear anything about racism, or the

12 effect of race on his life, or the names that he

13 was called, or what his family had to do or the

14 multi-generational evidence that has been

15 presented to you.

16 This is a tough question, folks. It's not

17 a comfortable thing for us to talk about. We

18 know the elephant in the room is, oh, is that

19 defense attorney using the race card? He's

20 trying to use the race card to try to benefit his

21 client from getting the death penalty? Guess

22 what? I wasn't there when he was a kid living

23 homeless in a tent with white family relatives,

24 some of which were racist and said things to him.

25 I wasn't there growing up as a young

 24

1 African American man, from a dysfunctional

2 family, thrust into a system that's broken. And

3 we know it's broken, and we know that racism

4 exists.

5 My job is to bring it to you. You can

6 reject it. You can put it aside. You can say,

7 listen, I've dealt with that my whole life, and I

8 turned out okay. You absolutely have that right.

9 But that's really not all that we're looking at

10 here.

11 We're looking at a big picture to

12 understand how this man got to where he was. And

13 what we're really talking about here is is there

14 a -- it's kinda a separation. Let me bring up

15 another board and let me explain it.

16 What we're talking about here are kinda

17 two things. Okay. Up to August 4th at

18 approximately -- we're going to call it

19 11:00 p.m. -- I think he had a conversation with

20 Marketi at 10:50. I think that's what they said.

21 Who was James Bannister? Who was James

22 Bannister and how did he get to where he was at?

23 Because that's really the mitigation story for

24 the most part.

25 There's one distinction to that, and

 25

1 that's the distinction of the trauma incorporated

2 with all the things, and all the things that we

3 talked about and how that plays into someone with

4 brain damage, who had brain damage -- you heard

5 from Dr. Wu, and I'm going to talk about Dr. Wu

6 in a little bit -- and who uses synthetic

7 marijuana, smokes that, laced with coke. And how

8 that gets you to a place where you go into a

9 psychosis where you see things, do things, things

10 occur to you as was described to Randall Neumann.

11 Listen, I just didn't pick Dr. Cooper off

12 the street and say, you know, Dr. Cooper, what

13 does the literature say about this? Well,

14 there's nothing really about this on this issue.

15 Dr. Cooper, I want to tell you some facts about

16 James' situation. Is there consistency here?

17 Are we seeing something that's real, that's

18 supported? She told you absolutely, absolutely.

19 And he admitted to her that he smoked more

20 than he usually smokes. He told Randall Neumann,

21 their star evidence, their star witness -- and

22 remember, folks, do they get to pick and choose

23 the evidence that they find reliable or

24 unreliable? That's your job.

25 Shouldn't they present everything to you

 26

1 and let you decide? Absolutely. So why don't

2 they? Why didn't they? Why didn't they do that?

3 Well, I did. And I put on a whole bunch of

4 experts. They put on one, Dr. Holder, who is a

5 quasi-retired radiologist, living in

6 Jacksonville, who testifies for them on nothing

7 but death penalty cases, where they are trying to

8 legally, under the laws of our state, execute

9 people, and he always finds them normal. That's

10 Dr. Holder.

11 You watched his demeanor. He said at the

12 beginning of his testimony, well, you know, I

13 will show you one or two slides. I don't want to

14 bore you. How many slides did he show you? How

15 motivated was he to try to show you what he

16 wanted to show you and tell you what he wanted to

17 tell you?

18 He's no Joseph wu, renowned Joseph Wu who

19 gets million dollar grants to do PET testing.

20 Who writes article after article after article on

21 PET. He wrote none. Zero. You can't trust

22 anything that man says, and I would suggest that

23 you don't.

24 And how Dr. Maher correlates the PET with

25 the history of head injury. Did you ever hear

 27

1 Dr. Holder say, yeah, you know, I was told he had

2 multiple head injuries, or I interviewed him, and

3 he had multiple head injuries, or any that about

4 history, or any attempt to correlate records, or

5 any attempt to correlate anything?

6 Did you ever hear that, at all, from Dr.

7 Holder? Absolutely not. But Dr. Wu got up there

8 and put on a powerpoint slide where he showed you

9 specifically where the damage is. And what did

10 he say? He said that he really doesn't believe

11 in PET scans but he is going to show you how they

12 are normal. That's what he said.

13 I don't really believe in PET scans. I

14 don't think that they show -- maybe you can use

15 them for cancer or for some kind of other medical

16 issue. But when it comes to traumatic brain

17 injury, he says he doesn't believe in them.

18 But he went out of his way to show they

19 were normal -- that's Dr. Holder. So when we're

20 talking about two things here, about the life of

21 James Bannister, the first journey we took -- we

22 took them altogether. But if you separate the

23 journeys, we're talking about what happened to

24 this man based on pre-birth history all the way

25 through to August 4th, 11:00 p.m. That's what

 28

1 we're talking about in mitigation.

2 That's the human being, okay. When we're

3 talking about the use of some of this, which we

4 put on testimony from three experts about this

5 issue about drug-induced psychosis -- now, I used

6 in my closing, "blackout." I used that. I

7 apologize because apparently, according to Dr.

8 Cooper and even Dr. Maher, it's really not a

9 blackout situation.

10 It's a situation where at some point you

11 remember and there are occasions and reasons, and

12 sometimes, where you will lose your memory, or

13 bear your memory per say. So we know, based on

14 what you know now going into this case, that my

15 client said he didn't do this. Leading up to

16 this trial, that is what I had to deal with. But

17 I knew what the evidence was.

18 And I knew talking to Dr. Maher and Dr.

19 Cooper -- I didn't talk to Dr. Cooper yet. I

20 talked to Dr. Maher -- that it's not unusual for,

21 first of all, human nature. I mean, how are you

22 ever going to admit to something like this? Even

23 in the most-traumatized psychosis where you have

24 some faint memory, a dysfunctional memory of this

25 happening, how are you ever going to step forward

 29

1 and tell anybody that you did something as

2 horrendous as this? How?

3 But, I mean, there's a possibility,

4 according to Maher, that he completely, like,

5 blacked this out of his mind. We know at the

6 time that he was talking to his cousin, Neumann,

7 that there was this disjointed memory. And I

8 read you the transcript of that where he was

9 ranting, and it was like a moving and -- he

10 was -- I'm reading from page 83 from the

11 transcript of Neumann's cross-examination.

12 "You made an observation that he was very

13 pale?

14 Answer: Yes.

15 That he was depressed?

16 Answer: He wasn't acting right, I felt

17 it.

18 Question: Was not acting right?

19 Answer: Just different.

20 Question: Paranoid?

21 Answer: Not himself.

22 Question: He was extremely paranoid,

23 wasn't he?

24 Answer: Yes."

25 So we know that in the days, day or two,

 30

1 after this he's acting different. He's acting

2 extremely paranoid. He's telling his cousin

3 about this movie-like experience. Never any

4 details. There's never any evidence of the

5 details that happened in this case.

6 And that's important because you have to

7 look at that as you start judging the aggravating

8 factors and the weight that you give those

9 aggravating factors. Certainly, there was enough

10 for you to convict him. There's no question

11 here. But we're at a different place. Convict.

12 Kill. Convict. Kill.

13 I mean, I don't mean to be frank with you

14 folks. We can't soften what we're here for.

15 That's what we spent four days here dealing with

16 is whether there's going to be a state-sanctioned

17 killing in this case.

18 So when we're talking about your

19 responsibility, although, technically, you have

20 some of the same standards -- and all the

21 standard for mitigation is lower, about fifty-one

22 percent. I think that is the only thing Holder

23 said when he talked about the standard in terms

24 of greater weight -- is that you have a greater

25 responsibility here to look at all the facts and

 31

1 make a decision on how much weight you're going

2 to give the aggravating factors. How much weight

3 you're going to give the mitigating factors.

4 And at the end -- again, I would say this

5 again, and I will repeat it a couple more times,

6 even if you go through this checklist and you,

7 individually as jurors, find the aggravating

8 factors outweigh the mitigating factors,

9 individually, collectively at the end of that,

10 you can say, I'm not going to vote for death

11 because I don't want to vote for death because.

12 As a matter of fact, you don't even have to say

13 "because."

14 And if all of you have, you know, found

15 that place that we talked about where you're

16 respecting each other, then that should be it.

17 That should be all. Like, I don't want to vote

18 for death. I want to be the one person out of

19 the twelve that's not going to vote for death.

20 Because why? Because at the end of the

21 day, that's something that you're going to have

22 to live with forever. Now, there may be people

23 on this jury who'll go, I'm going to kill this

24 guy. He killed two kids. I don't care what

25 drugs he did.
 32

1 MS. ARNOLD: Objection, Your Honor.

2 THE COURT: Sustained.

3 CLOSING ARGUMENT BY DEFENSE COUNSEL (Cont'd)

4 MR. LENAMON: Everyone has their own

5 personal choice to make. And you have the

6 absolute right. I don't control that. The judge

7 doesn't control that. The state doesn't control

8 that. I only got to spend a couple of hours

9 talking to you. I only know what I have observed

10 and what I see.

11 You're very conscientious. You get along.

12 You listen. You're respectful of each other.

13 You can't ask for any more than that.

14 So going back to what I was saying in

15 terms of talking about this. You're looking at

16 mitigation and you're weighing that mitigation

17 and you're looking at his life. You heard the

18 evidence. His family is in the courtroom also.

19 I know the victim's family is here. But his

20 family is here too. And they are important to

21 him.

22 They mean something to him. That could be

23 enough for you to vote for life in itself. You

24 can find any one of those 40 mitigating factors,

25 and some of those are like an abusive mother, his

 33

1 father was violent.

2 If you read them, they kinda track the

3 story of his life from birth all the way until,

4 you know, the night before this. Like I said,

5 the first two or three address the issues of his

6 state of mind at the time of this event which

7 would be considered a mitigating factor.

8 But as you start going through this,

9 essentially, you get to decide what is important

10 to you. And I would suggest that -- you know,

11 what do we have here? Three hours, three hours

12 of this man's life that we're talking about here?

13 That's what you're judging, really. Three hours.

14 You can certainly judge the armed robbery.

15 And you can give whatever you want to the

16 rebuttal argument of the State that, you know, he

17 was disrespectful. He didn't, you know, get

18 along with people. But think about what the

19 story is. The story is this man is born into a

20 dysfunctional family. His mother, before he is

21 born, is in an abusive relationship whose

22 husband, and his father, rapes and beats the

23 mother.

24 This woman is trying to nurture. He has

25 her own story. Like Dr. Maher said, there are

 34

1 many people in this room who have their own

2 story. Some of them you heard from. But she has

3 her own story. And although we criticize and

4 talk about all the things she could have done, or

5 should have done differently, it's not intended

6 to take away from the pain that she herself

7 suffered and the tragedy that this woman tried to

8 do the best she could, many times, to raise her

9 five children.

10 You can't take that away. But you have to

11 look at the effect it has on James. What it

12 caused to James. And what it did to James. So

13 we have a little boy who grew up in an

14 environment where his mother is fleeing from his

15 father. She is homeless. He's unprotected. He

16 has some family members, like his grandmother I

17 think, who occasionally enters his life and are

18 trying to take care of him.

19 But when his mother is good, as one of the

20 sisters said, I think it was Sable -- when his
21 mother is good, she's good. When she's bad,
22 she's really bad. This is the dysfunction. So
23 he grows dysfunctionally attached to her. He
24 needs her. And what happens?
25 I mean, at eight, she starts using drugs.
 35

1 Now we have an eight-year-old who is attached to

2 his mother who is trying to grow up and function

3 properly. We have this eight-year-old who is now

4 having to deal with his environment. And, you

5 know, you can imagine running a movie out of

6 this. I mean, we can do a two-hour movie and you

7 would see this would happen.

8 Unfortunately, we probably see this more

9 than we want to see it in our society. The

10 failures of the systems. Things that could have,

11 should have, would have happened and they don't.

12 And the end results.

13 He had at least two, and probably more,

14 young men that were murdered that were friends of

15 his. Imagine growing up in that kind of

16 environment. Imagine. It's a terrible thing

17 that you have to deal with. So when he was

18 twelve, he got sent away. He went into foster

19 care after his father sexually abused his sister,

20 and tried to do something, and got pushed, or

21 shoved, or hit.

22 And one day his sister leaves. The person

23 that's closest to him. You heard Dr. Maher talk

24 about how important that attachment is. He

25 leaves -- she leaves and she never comes back.

 36

1 He stays there for, like, a month. I think the

2 State crossed on that issue that he was there for

3 about a month with this woman who was the

4 girlfriend of her (sic) father.

5 He was running away, staying on the

6 streets, and then put in foster care. So imagine

7 being all alone like that when you're

8 thirteen-years-old. Imagine. So now he's then

9 sent home to his mother. And imagine the hopes

10 and the desires and wishes he had as he drove on

11 the bus from Baltimore to Ocala.

12 Then he arrives home and within a short

13 period of time she is using drugs. Of course,

14 his behavior is starting to shift because guess

15 what? Guess what he has been through? A failed

16 system in Baltimore. No father figure. And a

17 mother who is dysfunctional -- who is there to

18 love him.

19 I mean, you heard Dr. Maher talk about the

20 importance of two family members in this

21 situation. We all know that there's people who

22 just have one, and that one is really good and

23 functional and does the role of mother and father

24 and then some.

25 I mean, the women nowadays, unfortunately,

 37

1 are stuck in this role over and over again.

2 That's the way it is. But he's dealing with

3 this, and you're looking at him. So what happens

4 is his mother pushes him away. He's trying to

5 reach out to her. I'm sure he's misbehaving.

6 But she is rejecting him because all she

7 wants to do is get high. That's all she wants to

8 do is get high. She can't handle him. She can't

9 deal with him. So what does she do? She sends

10 him away. Sends him away. We know from the

11 first time that she sent him away that there was

12 a family member up there who was willing to take

13 him. It was the father's sister, who you heard

14 from.

15 The father's sister came down from

16 Maryland to tell you that he, her brother, would

17 beat on James' mother. Would beat on her. When

18 he came out of the service, he was a changed man.

19 Violent. That he intervened, and he tried to

20 grab James for whatever reason.

21 And what happened? So when he gets back

22 the second time, do they call her? No one ever

23 reached out to her. Meher tells you that could

24 have been a life-changer for James. It could

25 have been a life-changer for James. Failure of

 38

1 the system.

2 I mean, we can sit up here all day long

3 and say, you know, we do the best we can. That's

4 okay. But not if you're going to kill somebody.

5 Not if you're going to kill somebody. You have

6 to look really hard and give credit to what

7 deserves credit.

8 So he goes up there. What does he become?

9 He becomes a teenager who is out of control. Who

10 is angry. He's angry at the world. Can you

11 blame him? Can you blame him for being angry?

12 He's rejected by his mother. His father is a

13 piece of work.

14 Nobody really cares for him. And even

15 though there's a gentleman who is trying to help

16 him, as Dr. Maher said, he's not trying hard

17 enough. Because he himself, as you heard

18 multiple times when that witness was telling you,

19 multiple times he said, you know, listen, we

20 tried to do the best we can. We have a system.

21 Some of it works; some of it doesn't. He's not

22 the only one dealing with this.

23 But unfortunately right, he is not the

24 only one who dealt with this. So we have this

25 child who is in and out of foster care. That

 39

1 ends up hanging out with the wrong element and

2 commits a robbery which is the aggravating factor

3 presented to you, one of the aggravating factors.

4 He goes to prison.

5 Sadly, sadly we hear that's probably the

6 safest place, most structured place he's ever

7 been. He seems to do well there. You heard from

8 Ron McAndrew who was a warden in the Florida

9 State prison.

10 A life sentence without the possibility of

11 parole means that that man will go off to state

12 prison to a facility where he's going to be

13 housed with one other inmate in the cell. And

14 when he's moved, he's going to have chains placed

15 on his legs. And although he can do work inside

16 the fenced compound, under supervision, direct

17 supervision, that man is going to go to the

18 Florida prison and come out in a box by your

19 verdict last week. That's where he's at. He's

20 never ever getting out.

21 He's going to be sentenced to four

22 consecutive life sentences. He's going to die in

23 prison. But Ron told you that he still could be

24 a benefit. He still has something to offer. He

25 talked to you about the masonry thing. Talked

 40

1 about what he did when he was in prison the first

2 time.

3 You heard about the letters that he wrote

4 to two of his sisters, one which -- she told it

5 was life-changing. She was going through a bunch

6 of bad things. She wanted to get pregnant when

7 she was twelve-years-old. He's like, no, no,

8 can't do that. There's goodness in that man.

9 He has a family that loves him still who

10 will visit him. By a life sentence, he would

11 have an opportunity to give back something. You

12 don't forget that. So he comes home with the

13 hopes of making a change. He tries to make the

14 change. He gets a job at a cat litter factory.

15 He works there for three years. But

16 something happens. He has a fight with a fellow

17 worker, and he losses his job. That's, like, in

18 December or January, 2011. About eight months

19 before that. And you heard he tried to get a job

20 but things started to go back to the way they

21 were. Starts on drugs, starts using drugs again.

22 Because that's just what he did.

23 So then we lead up to this event. What

24 evidence do we have about this event? Okay. One

25 of the things that you get to consider when

 41

1 you're looking at the aggravating factors are you

2 have to weigh the murders themselves and the

3 heightened premeditation.

4 Heightened premeditation means not only

5 the premeditation that you guys found from your

6 first part but the heightened premeditation where

7 you're looking at his state of mind at the time

8 of this event. And that becomes important here

9 because what we know -- this is a hypothetical

10 because we don't know, in reality, what really

11 happened.

12 I mean, honestly we don't know what really

13 happened. And we don't know what really happened

14 with the drugs. We don't know what happened with

15 the circumstances. But what you have to look at

16 and say to yourself is what was the motive here.

17 Was this a motivated crime for some reason

18 that I see within the phone records, within the

19 evidence, within the testimony that drives us to

20 a super-confident area where we are willing to

21 throw aside the possibility of this hypothesis?

22 Here's the hypothesis I presented to you.

23 This is the hypothesis. This man is

24 hanging out with a woman. Randall Neumann tells

25 you that. He says that James told him he was

 42

1 hanging out with this woman. And that is

2 sometime probably around 10:00, 11:00 o'clock.

3 We have a gap in the phone records.

4 There's a gap from 10:00 to 11:00 where

5 there's nothing going on. At 10:55, he calls his

6 sister, and there's some conversation with Joc.

7 And then at 11:19, we have the situation where

8 he's texting this message which is a message to

9 Bridget. Then there's multiple phone

10 conversations, very short conversations with Joc,

11 multiple hangups and miss phone conversations.

12 And there's this one phone record at close

13 to, like, midnight which is, supposedly before

14 the murders, that says "I'm home." And then we

15 have this situation where he's, at some point

16 around 12:40, headed back to where his house is

17 if you look at the records of the cell towers.

18 Then he's home. Then he's back over to the crime

19 scene by, I think she said, 1:55 when he has this

20 conversation with Diaz.

21 What are we talking about here? Why is

22 this important? Zeva Cooper comes in here. She

23 is an expert in synthetic marijuana. She tells

24 you, you know what? Marijuana was happening.

25 Then all of a sudden, they started generating

 43

1 kinda this illegal synthetic marijuana.

2 And then somehow the synthetic marijuana

3 ended up in the stores that were being used and

4 people were smoking it. And some of the reasons

5 people smoked it, you couldn't check, like, I

6 think it was THC they said -- that would show up

7 in marijuana, and it would show up in your blood

8 system. So people were using synthetic marijuana

9 to skirt the issue of a drug test.

10 What she says, this is really bad stuff.

11 Okay. You have this synthetic marijuana which

12 she says James admits to using. Now, the State

13 put up all this evidence about his family members

14 didn't know.

15 James was living with Joc and apparently

16 Joc knew. I don't know why the State didn't

17 bring this up, but page 55 of 120. I'm going to

18 pass this --

19 THE COURT: Mr. Lenamon, I'm going to ask

20 you to reframe from making comments about

21 opposing counsel's job and performance.

22 MR. LENAMON: Yes, sir.

23 DEFENSE COUNSEL CLOSING ARGUMENT (cont'd)

24 MR. LENAMON: I have a paperclip marked

25 where this is. I'm going -- you can look at it

 44

1 later. I'm just going to show you.

2 This says, it's a text message from 8100,

3 which is Joc's, on July 22, 2011. So that is

4 thirteen days, or so, before the murders. In the

5 text, she texted James and says: Have you done

6 started smoking "boonk" joints?

7 That's the text from Joc. Boonk joints.

8 Now, Dr. Cooper didn't know what boonk joints

9 were. I would suggest boonk joints is the

10 synthetic joints that she is talking about. We

11 have the woman who is closest to him, confronting

12 him, thirteen days before this incident that he

13 had started smoking -- asking him, in a question,

14 have you started smoking boonk joints?

15 He's smoking, at least, according to the

16 independent evidence, on 7/22 of '11, boonk

17 joints. That's the question from her. We know

18 from Randall Neumann -- we've already been

19 through it. And you heard the testimony that was

20 recorded that was presented as part of their

21 evidence. Do they get to pick and choose their

22 evidence? Of course.

23 Could he have been making this up? Of

24 course. I don't know why he would make that up.

25 But certainly you can believe, or disbelieve,

 45

1 whatever you want. But we have this conversation

2 where he says he's done seven to eight joints

3 that were laced on the day leading up to this

4 event.

5 You heard from Dr. Cooper. She said he

6 used double the amount than he normally used

7 during this period of time. Okay. So why is

8 this important? Because what is important here

9 is his state of mind at the time and leading up

10 to this event, the murders. That's what is

11 important here.

12 That's why I called Dr. Cooper to come in

13 here and go through this hypothetical. And

14 here's the hypothetical: Doctor, if you smoke a

15 large amount of this, what are the risk factors

16 when you do that? And she said, psychosis. It's

17 called disassociation.

18 And you heard Dr. Maher and Dr. Cooper

19 describe what is disassociation. What do we have

20 in terms of evidence? We have Randall Neumann

21 giving the symptoms of disassociation six years

22 ago, this out-of-body experience, no control,

23 like a video. Those are everything Dr. Cooper

24 talks about.

25 Why is this important? This is

 46

1 important -- and we went through a timeline with

2 her where she says that depending on the amount

3 that you smoke is going to depend on how long the

4 psychosis -- some of it is short-acting; some of

5 it is an hour; an hour, twenty minutes; two

6 hours. It could be up to three hours.

7 Depending on the amount of drugs that you

8 smoke, it's going to be active. So here's it:

9 Choice, choice, choice. That's what this is all

10 about. He made an individual choice to do this.

11 He was motivated to do this. He had some motive

12 to do this. That's something that you have to

13 look at when you're talking about the aggravating

14 factors in this case and what weight you give

15 them.

16 Is he making a choice? Is he smoking this

17 stuff and something is happening in this man's

18 brain that caused him to act this way? To do

19 this thing that is completely irrational? Do we

20 know that? We don't know that. We don't know

21 anything. All we know is what Randall Neumann

22 says. Remember, I told you in the first part of

23 this case that Randall Neumann was driving this

24 bus. He's still driving this bus, folks.

25 He's still driving this bus. Now, you

 47

1 certainly get to pick and choose what evidence

2 you believe about Randall Neumann. But I think

3 that it makes absolutely no sense --

4 MS. ARNOLD: Objection.

5 THE COURT: Sustained.

6 CLOSING ARGUMENT BY DEFENSE COUNSEL (cont'd)

7 MR. LENAMON: The evidence clearly shows

8 that the conversation that Randall had with this

9 James Bannister was completely consistent with

10 the psychosis disassociation that occurred.

11 Completely consistent.

12 And when you get to the point where you

13 have Detective Diaz, some two to three hours

14 after the beginning of this -- I would suggest it

15 started right around the time that he started

16 making these calls at 11:00 and acting -- again,

17 this is a hypothesis. I'm giving you something

18 to look at and think about.

19 Because the bottom line is in your

20 decision today, you have to come to a factual

21 conclusion if you can. If you can't come to a

22 factual conclusion, then you have to give the

23 benefit to Mr. Bannister.

24 I suggest that based on the evidence that

25 we have and the testimony of Dr. Maher, and Dr.

 48

1 Cooper, and Dr. Wu who said that the risk factor

2 for psychosis, the risk factor for psychosis is

3 increased significantly when you have a head

4 injury, or multiple head injuries, and then you

5 have this issue about the trauma, the

6 post-traumatic stress issues that was talked

7 about over three days with this -- with the

8 witnesses that were called, the family members,

9 the records, the social worker, all those

10 things -- so we have a risk factor here.

11 So how do you use this? You use this to

12 reduce the weight you give to the aggravating

13 factors. That's it. That's what we're talking

14 about here. No one is asking you to second guess

15 your opinion. Your opinion was sound based on

16 the evidence. It's not being questioned.

17 You made the right decision. What I'm

18 asking you here is to expand the factual

19 scenario. Because I have added a whole bunch of

20 stuff that you didn't have available to you

21 before. You didn't have the experts.

22 You didn't have this information about

23 what occurs in the psychosis to put in

24 conjunction with what was going on with Randall

25 Neumann. The law, without question, in

 49

1 Florida -- just so you know, the law, without

2 question, is even if I put that evidence on in

3 the first part of this case, the law would

4 require you to find him guilty. Because it

5 doesn't take into effect someone who uses drugs

6 voluntarily and gets to the point where they do

7 something like that.

8 So there's no issue about you doing the

9 right thing and making the right decision. But

10 what I'm asking you is to step aside from that

11 decision and take a look at this as you start to

12 look at the aggravating factors.

13 So let's go through the aggravating

14 factors. There's no question that the murders

15 were proven here. So you have -- for each of the

16 murders, you have three other murders which are

17 considered aggravating factors. They are all

18 grouped together with the issue of -- let me put

19 this up here.

20 All right. So we have the aggravating

21 factors: Murder I, II, III Okay. So this is

22 for Joc. So Joc is homicide. Then we have the

23 same for Bridget and then with Cordarian and

24 Cordarica. We have the same three plus one which

25 is the children under twelve. Okay.

 50

1 So what I'm asking you to do -- these are

2 the aggravating factors. There's no question

3 these were proven beyond a reasonable doubt. So

4 you're past step one on that. You're past

5 sufficiency. Because I think there's

6 sufficiency. You may decide you, as an

7 individual, don't find it sufficient. That's up

8 to you. Okay. But let's get past sufficiency.

9 So you're past sufficiency.

10 So aggravating factor, proven beyond a

11 reasonable doubt and sufficiency. And we have

12 the CCP which I will get to in a second.

13 So, for example -- actually, you have the

14 armed robbery. This is all one. Okay. You may

15 decide the armed robbery wasn't proven beyond a

16 reasonable doubt. All you have to do is find one

17 of these. And that exist. The aggravating

18 factors exist. Then you have to give weight to

19 it.

20 You look at the weight that you're going

21 to give the aggravating factor. Okay. What I'm

22 suggesting on this, and on the cold, calculated

23 and premeditated that when you inject the factual

24 scenario that I'm presenting to you, and the

25 questions that you have in your mind about what

 51

1 really happened, how it really happened,

2 speculation, conjecture, motivation, all those

3 things, that that goes to the weight of that

4 aggravating factor.

5 So you can look at this and go, you know,

6 what? I believe it's proven beyond a reasonable

7 doubt, but I'm going to give it, you know, so

8 much weight. I'm going to give -- if I were to

9 give a hundred percent, I'm going to give fifty

10 percent, the weight. Okay.

11 If I give it seventy-five percent, or

12 whatever you want to give it, you give it the

13 weight. Then when you go to the CCP, you have to

14 say was that proven beyond a reasonable doubt?

15 Now, when you made your decision initially, you

16 were given premeditation, and you found

17 premeditation, specifically.

18 But as we talked about, this is a

19 heightened premeditation. So this is a --

20 there's more of a standard, a higher standard.

21 So you can say to yourself this is individual.

22 Because what is going to happen? Let me show

23 you.

24 What's going to happen is that there's

25 going to be -- so here's the box. I know you

 52

1 can't all see it. I will try to explain it.

2 This is Count I which is Joc. This is

3 aggravating factors as to Count I.

4 Then it would say, We the jury

5 unanimously -- that means each one of you have to

6 find it. But if one of you says, no, I don't

7 believe it's unanimously proven, so it's not

8 proven, then you would indicate X, "no."

9 Establish beyond a reasonable doubt the

10 existence of the aggravating factor. The

11 defendant was previously convicted of a capital

12 felony or a felony involving the use or threat of

13 violence. And those were the murders we talked

14 about.

15 Then to CCP: We the jury find the jury

16 has established beyond a reasonable doubt the

17 existence of the aggravating factor, the capital

18 felony was a homicide and was committed in a

19 cold, calculated, premeditated manner without any

20 pretense. You say, "yes" or "no." Each of you

21 have to decide.

22 If you vote "yes --" if all of you vote

23 "yes," it would be a "yes." If you vote, "no,"

24 it would be a "no." Then it gives instructions

25 where you move to the next which is the

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1 sufficiency. You have to decide on those

2 aggravators and then decide on the sufficiency.

3 After you move to the sufficiency, then

4 you are going to be asked questions about the

5 mitigating circumstances if you get passed the

6 sufficiency. So you make a vote. If you all

7 vote the aggravating factors exist beyond a

8 reasonable doubt, "yes."

9 So you may find that the aggravating

10 factor of those exist. Because, as I told you,

11 it's a no-brainer there were other murders

12 committed. You may get to the CCP, and one of

13 you may go, I'm not comfortable with that and

14 then you will find, "no," but you still move on.

15 You still move to the sufficiency question.

16 Once you move to the sufficiency question,

17 you have to decide whether, in reviewing the

18 aggravating factors, we unanimously found to be

19 established beyond a reasonable doubt in section

20 A, which is this, that the aggravating factors

21 are sufficient to warrant a possible death

22 sentence. So you just do a check off as you're

23 moving along.

24 Then you get to the mitigating factors.

25 If you find it's sufficient -- normally you use

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1 the one aggravator. So if you find CCP that

2 wasn't proven by one of you guys, then, you know,

3 you still move to the sufficiency. If you find

4 that's sufficient, based on what I'm talking to

5 you about -- it may be sufficient, you move to

6 the mitigating factors.

7 Then you have to answer each mitigating

8 question. Here's an example: Mr. Bannister's

9 mother fled to Florida to escape the father: Yes

10 or no. All twelve -- if one of you says "yes,"

11 and, you know, eleven say "no," then you would

12 put "yes." Then you would put by a vote of

13 eleven -- one, yes; eleven, no. Or ten, yes;

14 two, no.

15 So you're going to go through and make

16 specific findings. So it's an individual thing

17 for each of you. So you're just going through --

18 and these are little pieces. This is the

19 evidence whether it was proven by a greater

20 weight which is more than less.

21 These are just little pieces. But the

22 pieces add up. And you're required by law to

23 make findings. There are, like, forty of them.

24 Like, Mr. Bannister's mother left them. That's a

25 mitigating factor. That's a piece. So what you

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1 will find as you go through these mitigating

2 factors is you get to collectively give and weigh

3 as much or as little as you want for each or all

4 punitively.

5 So you may find some of the mitigating

6 factors less weighty and some mitigating factors

7 more weighty. So you will have to make a

8 decision on how you decide that. The verdict

9 form will walk you through this.

10 What I'm saying right now is, as you look

11 at this factor that I'm talking about, this

12 disassociation, it really goes to, in my opinion,

13 the weight of the aggravating factors in deciding

14 how much weight you give. Ultimately, the

15 decision that you're going to make is you weigh

16 the aggravating factors against the mitigating

17 factors, individually.

18 You get to choose what weight and how much

19 you want. You may say, the life story and life

20 of James Bannister is compelling to me, and I'm

21 going to give that more weight than what I

22 believe the aggravating factors are. Because

23 guess what? You know, I know I found him guilty

24 of murder, I believe that he did it, but I also

25 think that the evidence of psychosis was

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1 troubling, and what was going on in his brain at

2 the time bothers me. I'm not sure what happened.

3 I'm not sure how it happened, or why it happened,

4 and for that reason I don't want to vote for

5 death. You can do that. Because that's what the

6 facts are in this particular case.

7 You get to use the facts. I didn't make

8 up the facts. They are what they are. So you

9 get to use those in deciding how you weigh the

10 aggravating factors and how you weigh the

11 mitigating factors.

12 Now, at the end of the day,

13 hypothetically -- I'm not going to say this

14 happens. But hypothetically, if you're in a

15 situation where all the juror members

16 individually vote aggravating factors, mitigating

17 factors, and we believe they outweigh,

18 individually -- the aggravators outweigh the

19 mitigators, then the next step you have to go

20 through is whether you're willing to vote for

21 death.

22 The law says you don't have to do that.

23 So, in other words, everyone can find the

24 aggravating factors outweigh the mitigating

25 factors, but at the end of the day, you never

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1 have to vote for death. This is the law.

2 This is the instruction that the judge

3 will give you.

4 So when I talked about, at the very

5 beginning of this and in jury selection, the

6 importance of how you would be standing alone and

7 the individual, moral responsibility you have, as

8 a juror, I foresaw that we would get to the point

9 where you are in a position where you have to

10 make a decision yourself.

11 You're the only one who can make that

12 decision. No one can change your position on

13 that. No one should try to change your position

14 on that. This is not a message. This is an

15 individual decision that you are making based on

16 all the evidence, and the law, and how everything

17 exists.

18 There was drugs found in James' house,

19 synthetic marijuana. Again, these are the facts

20 that you need to kinda reach back in your memory

21 and look at when deciding that issue. That's the

22 issue we're talking about. Again, this is

23 deciding life or death. That's all we're talking

24 about here.

25 That's why we spent a lot of time dealing

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1 with that issue. This guy clearly was using. I

2 think the evidence clearly supports that there's

3 enough there for you to take a hard look at this

4 and use this as part of the process that you

5 ultimately decide. As I close out, I'm going to

6 wrap it up on this now. I want to -- I wanted to

7 remind you this is James and James' family and

8 James' life.

9 I ask you to rely on your own memory of

10 things that I may have missed about things that

11 have happened to him in his life that was

12 testified to by family members.

13 But, you know, Marketi, Ryan, Frankie,

14 Sable, Kya -- they have been here. They are for

15 him. They are his family. They are important to

16 him.

17 Certainly, that's something that you can

18 consider. You know, if you find that mercy is

19 the only thing that you believe that you can give

20 in this case, you can do that for any reason at

21 all. It's up to you. There are no winners in

22 this case.

23 There is a tragedy for so many and for our

24 community. And I ask that as you make this final

25 journey, and listen to the law and the

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1 instructions, and go over the facts in this case,

2 I ask that you look inside your heart. This is a

3 tough job you have.

4 It was a tough job you have from the

5 beginning. I know -- I imagine it would be a

6 struggle if you had to deal with trying to

7 balance justice for the family and justice for my

8 client and the family members.

9 I would ask that you look deep down inside

10 and realize that at the end of the day, this is a

11 personal, individual decision that you have to

12 make. And that I'm competent that when you look

13 deep down inside and understand the humanity that

14 you have a right to give; it's a choice. I can't

15 make you give it. The State can't take it away

16 from you.

17 This is a personal choice that you have

18 here in making this decision that's going to

19 affect so many people's lives and, certainly,

20 James' life. Because what we're talking about

21 here is real. And we know it's real. We know

22 what goes on. We hear things. The death penalty

23 is real in Florida. It's the law.

24 I ask that you take a hard look at all the

25 evidence in this case and look inside your heart

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1 and be merciful to James and give him life.

2 Thank you.

4 (End of excerpt.)

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1 C E R T I F I C A T E

3 STATE OF FLORIDA )

4 COUNTY OF MARION )

5 I do hereby certify that I was authorized to and

6 did stenographically report the foregoing excerpted

7 proceeding, pages numbered 1 through 61, and that the

8 transcript is a true and correct record of my

9 stenographic notes.

10 Dated this 18th day of December, 2017.

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12 ______/s/_____________________
Karla Layfield
13 Registered Professional Reporter
Florida Professional Reporter
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