Williamson County District Attorney John Bradley's Closing Statements:
The following excerpt of Williamson County
Prosecutor, Mr Bradley's closing statements was taken from the court
proceedings given on July 19th 2002 in the District Court
of Williamson County, Texas 368th Judicial District for
trial court cause number: 01-1096-K368, Threet vs State of Texas,
Trial of Merits volume 8 of 10.
Closing statement - Part 1
8 22 heard Brandon Threet throughout this trial or his friendly 23 witnesses talk about a fight? Yet when Brandon finally 24 testified and was asked the question as to what "fight" really 25 is, even he couldn't lie about that. He had to admit that
9
1 this was not a fight. There was nothing fair about
it. There
2 was no exchange of anything in a fair way.
3 This was an ambush. It was an ambush
that
4 started far earlier than the bit of videotape that you
saw.
5 It was an ambush that was not an accident. It was not
6 something we could not have predicted. It was not
something
7 that we could not have seen coming earlier in the
evening if
8 we'd been there. I certainly hope that you won't hear
this
9 called a fight again.
10 I
thought that perhaps the most telling question
11 asked by the defense
of the defendant was first objected to by
12 me. I think the
question was something like: Now, Brandon,
13 isn't it true that
you didn't know the risk of what you were
14 doing? And I
objected because that's leading. I explained
15 that leading means
you're trying to put words into the mouth
16 of the defendant,
help him give an answer that will be helpful
17 to his case.
18 And so
when he rephrased the question so that it
19 was not leading, kind
of pointless at that point, since
20 Brandon already knows
pretty much what he's supposed to be
21 saying now, so what
does Brandon say when he's asked, "Were
22 you aware of the
risk?" "Uh, no." It sounded kind of
23 awkward, didn't it?
It didn't sound like the kind of language
24 or phrasing that
Brandon would naturally volunteer himself.
25 It sounded kind of
forced.
10
1 Then on
cross-examination I kind of followed up
2 on that. "Brandon,
why did you think it was important that
3 you say that you
didn't know the risk?" "I don't know. I
4 don't understand the
question." "Well, Brandon, if you had
5 said to this jury
that you did know what the risk was and you
6 did it anyway or
perhaps that you knew that the result of what
7 you were going to do
was going to kill that young man or at
8 least seriously hurt
him, what is the consequence of that,
9 Brandon?" And
he struggled. And then he finally realized
10 that he had to say
what you-all were thinking anyway. "Well,
11 I guess that would
show I had intent." He understood that.
12 He's had nine, ten
months to think about what that means.
13 He had
to sit through me picking the jury and
14 explaining every
single of one of those concepts. He knows
15 what that means. He
finished high school. He started
16 college. He can
figure it out. He knows there is a very
17 serious difference
between you realizing that he knew what he
18 was doing and this
phony, "I didn't know the risk." Think
19 about that when Mr.
Minton is trying to explain why that
20 answer should be
believed.
21 You
have three different theories to apply the
22 facts. The jury
charge gives you the first one, that
23 knowingly causes the
death of Terence McArdle. I think
24 perhaps this is the
easiest theory because Terence has -- I
25 mean Brandon has
admitted every single thing in this. He
11
1 admitted that he caused the death of Terence McArdle.
He
2 admitted he did it with his hands and feet. And look
at what
3 the word, "knowingly," is defined as. All
it requires is that
4 the defendant was aware that his conduct is reasonably
certain
5 to cause the result.
6 He
admitted he was a football player. He
7 admitted he had had
head injuries. He admitted he knew the
8 head was a fragile
thing. He wanted to play around with that
9 and try to act dumb.
But you know he knew it. And what he
10 wants to do is he
wants to give you this picture because he
11 wants you to think
that he didn't think the exact moment that
12 foot is in the air,
"I know I am killing Terence," that you
13 shouldn't find him
guilty. What a phony, phony, phony
14 approach.
15 He has
to know before he does it. The law
16 doesn't say he has to
be thinking about it when he's doing it.
17 That isn't what the
law says. That would be an impossible
18 standard. That would
require some sort of machine that peeks
19 in his mind what he
was thinking, and I extract it and present
20 it to the jury.
Nobody can do that.
21 The
second theory is pretty easy too because he
22 actually has to
intend something less than death. The second
23 theory is that he
intends to cause serious bodily injury.
24 What did
25 "Oh, I thought he'd get a bloody nose or a
concussion." A
12
1 concussion, really? What's a concussion? We all know
what a
2 concussion is. It's an injury to the brain such that
you're
3 unconscious. And sometimes people don't recover from
4 concussions. That's a very serious injury. He
acknowledged
5 that he knew that that was something that could
happen. But
6 what do you think he's intending as that foot is going
there?
7 He
admitted the rest of it. How many people
8 testified that this
was an act clearly dangerous to human
9 life? He doesn't
have to believe that. You don't have to
10 believe that he
believes that's an act clearly dangerous to
11 human life. That's
not something I have to prove. It
12 objectively has to be
proved to be an act clearly dangerous to
13 human life. How many
doctors testified to that?
14 And
then the third theory, this one is, frankly,
15 even easier,
knowingly caused serious bodily injury. Now, on
16 this one, he doesn't
even have to specifically intend to cause
17 that concussion. He
can just know it's going to be caused.
18 Well, we know he
knows it. He's been in football games. He's
19 seen fights. He's
seen these things. He knows what the head
20 can do and what can
happen to it. So he knows before he even
21 starts this. He can
quibble about whether he knew he was
22 going to kill him. I
think he certainly did. But how can he
23 quibble that he knew
he was going to cause serious bodily
24 injury? How can
anyone anywhere suggest that that is not
25 proven here?
13
1 And
it's certainly in the course of this
2 aggravated assault
that he commits an act clearly dangerous to
3 human life, namely, a
kick to the head and a kick to the face.
4 And, again, on this
one, all I have to prove is that he was
5 aware that his
conduct was reasonably certain to cause the
6 result, namely,
serious bodily injury, such as a concussion.
7 Now,
you do not have to believe all three
8 theories. All you
have to do is believe one of them. And you
9 do not have to all
twelve agree on the same theory. You can
10 each look at this and
select for yourself which theory you're
11 most comfortable
with. You may be comfortable with all three.
12 But as long as twelve
of you get back there, look at this, and
13 say, "He
committed a murder under theory one, two, or three,"
14 then you have come to
a conclusion unanimously beyond a
15 reasonable doubt that
the defendant is guilty of murder.
16 That's all you have
to do.
17 Once
you do that, you need to find that his hand
18 or foot was a deadly
weapon. I don't think anybody is going
19 to contest that. We
have a dead person, Terence McArdle, and
20 it was caused by the
hand and foot of Brandon Threet.
21 What's
Mr. Minton going to say? What's he
22 going to ask you to
do? Well, he's going to say, "The
23 defendant needs to be
convicted of something less serious. By
24 golly, this wasn't so
serious. It's a terrible, terrible
25 tragedy. It was
horrible. And, you know, kids will be kids."
14
1 I get angry every
time I hear that. There were lots of kids
2 there that night.
There were lots of young men and women that
3 did not go trying to
hurt anyone.
4 Brandon
Threet is the one who selected this
5 night to kill
someone. But what they'll want you to do is
6 say, "Oh, you
know, how can we know? You know, how can we
7 judge? It's just a
moment, just 17 seconds." How many
8 seconds does it take
to shoot someone? Not even one second.
9 How many people are
in prison for shooting and killing someone
10 and forming the
criminal intent to do it at the moment they
11 pulled that trigger?
Brandon Threet took much longer than
12 that.
13 And all
Mr. Minton is going to offer you to
14 support your idea of
convicting him for some far less serious
15 offense, like
manslaughter or criminally negligent homicide,
16 is you heard the
defendant say, "I didn't know." But
you know
17 what? You don't have to believe the defendant. You
don't
18 have to accept his word over the mountain of evidence
that
19 shows he knew. And perhaps the saddest part of this
trial is
20 Brandon Threet's unwillingness to this day to accept
21 responsibility and admit what he did. He is still
playing
22 games with that night.
23 You may
remember that back while we were picking
24 the jury Mr. Minton
compared criminal negligence and
25 manslaughter to
running a red light. He used that as an
15
1 example. So if you
are coming up to a red light and you see
2 that it's red but you
don't think there's any cars coming and
3 so you decide, "Well,
there's a risk that I could hit
4 somebody. But I'm
going to consciously disregard it and run
5 through this
intersection anyway," and as you're going through
6 the intersection you
hit and kill someone, that would be
7 manslaughter. He
didn't really mean to kill someone. And you
8 didn't see that car
coming, but you knew that there was a risk
9 there. That's
manslaughter.
10 Let's
say you were in a hurry. You were running
11 through there, and
you just didn't even see the red light.
12 The law says you
should have been paying attention. You
13 should have known.
So you run through that intersection, and
14 you kill someone.
That's less serious because you didn't
15 know. You should
have been aware of the risk, but you didn't.
16 So we find you guilty
of criminally negligence homicide on
17 that one.
18 Mr.
Minton is going to want to compare that to
19 what Brandon Threet
did. Let's look at that. If Brandon
20 Threet is in a car
and he's coming up to that intersection,
21 let's compare it to
what he did in this case. Did he come up
22 there and say, "I
don't think there's anybody in that
23 intersection. But,
gosh, I'm going to run it anyway, even
24 though there's a
risk"? How does that compare?
25 Brandon Threet saw someone laying on the
ground
16
1 incapable of hurting him, and he made a decision to
take three
2 steps and kick him in the head with the force of a
thump that
3 you hear. Now, that's not manslaughter. That's not
4 criminally negligent homicide. That's not an
accident.
5 Demand an
explanation. See if you hear one. The defendant's
6 words, "Oh, Eric
got upset, and I had to intervene." Eric
7 said he didn't care.
He was trying to separate these people.
8 Brandon Threet wants
to make Eric the bad guy.
9 How
many times do we have to hear that Terence
10 was drunk? What is
the purpose of that? What's the subtle
11 little thing going on
there? Let's trash Terence. Brandon is
12 going to blame him to
the day he dies. He's thinking, "That
13 little punk with his
stupid goggles and being silly. What a
14 jerk." That's
all it took for Brandon Threet to get mad and
15 kill him.
16 "I've never been in a fight. Let
me say some
17 more self-serving things. I've never been in a fight.
Oh,
18 yeah, yeah, yeah, yeah, yeah, yeah. I do now
remember, now
19 that my lawyer tells me, that I cold-cocked Jerry
Gardner in
20 the face merely because someone accidentally hit me.
By the
21 way, I cold-cocked the wrong person. Oh, yeah, yeah,
yeah.
22 Yeah, I do like to, you know, trade licks. That's
kind of
23 cool," the point where we have to wonder whether
he had some
24 kind of a fight club going.
25 We hear for the first time, "I
thought Terence
17
1 was going to get up and attack me." Well, shame
on him for
2 saying that. There's not a person in this courtroom
that
3 believes that was true. And how he says,
"Terence never went
4 to the floor in the
house. I never pushed him down. He never
5 went to floor. No,
no, he never went to the floor." You
6 heard it. Why is
that guy here to make that up? He saw it.
7 It happened.
8 Brandon knows that he
was bothering Terence all night long.
9 He was getting it set
up.
10 "No,
no, no, no. I never think anything bad of
11 anyone. I'm a -- I'm
a perfect human being. And I would
12 certainly never use
the word 'chink' or 'gooch.'" Ah, but you
13 did. I'm not trying
to suggest he's some flaming racist. I
14 don't know whether he
is or he isn't. But I do know he's
15 going to shade all of
his words to make himself look good.
16 And that means you
don't believe him. You don't believe
17 anything he says.
18 Then he talks about how Terence never
refused to
19 exchange punches. No. Terence wanted to do this.
This is
20 great. It was going to be a fun thing. What did you
finally
21 hear? Terence said no three times. I don't want to
do that.
22 Terence had nine years of training in self-discipline
that
23 taught him to be humble in that situation and to
decline any
24 violence. I don't know why he went through with it, a
lot of
25 peer pressure, and he had been drinking a little bit.
But
1 Brandon took advantage of that to ambush Terence.
2 Then he
has to say on the stand he didn't know
3 it would hurt
Terence. You know, I can swallow a lot of
4 stuff, but I can't
swallow that. You make Mr. Minton explain
5 to you why that has
anything to do with common sense. After
6 he does, I'll talk to
you some more.
|
Closing statement - Part 2
5 THE
COURT: Mr. Bradley, you have forty-four and
6 a half minutes. Do
you want the lights down?
7 MR.
BRADLEY: Yes, sir.
8 We have
seen some images that will stay with you
9 for the rest of your
life. But the thing that will be even
10 greater than that
that will stay with you for the rest of your
11 life is the decision
that you make on whether or not Terence
12 McArdle was murdered
or whether Brandon Threet gets to just be
13 a little guilty, kind
of a minor guilty, a less serious
14 guilty.
15 And
it's no accident that one of the last things
16 Brandon Threet said
on the stand yesterday was that in
17 Williamson County
they find out everything. Remember he was
18 talking about how he
had seen lots of assaults that nobody had
19 gotten caught or
messed with. I suppose that's true in Travis
20 County where he spent
a lot of his time. But this crime was
21 committed in
Williamson County. And Terence McArdle is here,
22 and I am
representing, on behalf of the State of Texas, the
23 citizens of
Williamson County who have a far different
24 standard for truth
and justice than other jurisdictions. And
25 I don't apologize for
it. I'll tell you that every one of you
52
1 are on the jury
because you don't apologize for it. Each of
2 you agreed to follow
the laws that are before you and to make
3 the hard decisions.
And this one will stay with you for the
4 rest of your life.
6 a birthday with his parents, James and Chung, who sit here on 7 the first row waiting to see what justice will be. His 8 brother, Brendan, was there. And I'm grateful that they had 9 that opportunity. How many times has it happened that we 10 didn't have something what we can remember well on a person 11 who has died? |
13 successfully, and he had been accepted at the University of 14 Texas in Austin which, as it gets more and more competitive, 15 is not such an easy thing to do. That summer he got to spend 16 enjoying himself in Corpus Christi and down around South Padre 17 with his family. But he still had to get back and start 18 school so that he could begin to complete the education that 19 his parents were providing for him. 20 And it's amazing how well sometimes a picture 21 captures so much about a person. 22 enjoyed martial arts, as you can see from this Bruce Lee 23 poster. He had worked on it for years and was a second-degree 24 black belt. He was capable of defending himself and attacking 25 someone if he thought he needed to. 53 1 He liked music. I can't even begin to try to 2 describe what music it is that he liked or listened to. I 3 don't know who Green Day is. He liked the Beatles, which is 4 kind interesting that he's taken a previous generation's music 5 and incorporated it into his life. He was a considerate 6 person. 7 And what was supposed to happen that weekend was 8 he was supposed to come home and visit some family that was in 9 from out of town, sort of a reunion. But as the night went 10 on, James and Chung McArdle became concerned. They tried to 11 contact him. They knew that Brendan had contacted him on AOL 12 about 10:30 or 11:00. Then sometime shortly after that, I 13 guess, Terence went to this party. So at some time, at 2:30 14 in the morning, James McArdle gets a phone call. And that's 15 why you heard the testimony of Dr. Bedolla at Seton Northwest 16 Hospital. The most striking thing that he said was the 17 grayish-yellowish discoloration on Terence's skin and face. 18 From what he knew, Terence was dead. He had arrived dead at 19 Seton Northwest Hospital. 20 So what kind of feeling is that -- I don't know. 21 -- in the middle of the night to get a phone call and arrive 22 at a hospital and see that your son is dead and nobody 23 standing around giving you an explanation? And he eventually 24 does talk to Marie Puryear and gets the police involved. 25 James McArdle does. But no one had come forward at that 54 1 point. Brandon Threet hadn't called and told them what he had 2 done. Brandon Threet hadn't come to the hospital to help 3 explain what had happened so that perhaps some treatment could 4 be done. Brandon Threet had already run and hidden. 5 There was no neurologic or cardiac activity. He 6 was for all purposes dead. Dr. Bedolla did what he's supposed 7 to do, and he worked with a young heart. He got it started 8 again. Then he sent him off to Brackenridge for further 9 treatment. But he did notice that there was bruising on the 10 side of the face consistent with someone striking him. 11 But when he got to Brackenridge Hospital, Dr. 12 Dan Peterson was in no better position. And, you know, 13 doctors go through that medical school, and they see all kinds 14 of things. That's a neurosurgeon. He opens up people's 15 brains on a daily basis, and he looks at them. He was choking 16 up here. Having seen that videotape of how this happened and 17 having spent a week with this family and having to describe 18 that to you, a medical doctor was breaking down because he 19 knew that this was -- this is not -- I'm tired of hearing the 20 word "tragedy." Tragedies make sense. Tragedies we learn 21 from. This is a vicious ambush. That's what it was. Let's 22 call it that. And Dr. Peterson knew that's what it was. 23 Despite all of his medical training and experience, he could 24 see through that, and his emotions came forward. He couldn't 25 do anything. There was no treatment that he could try. He
55
1 exceeded to the request of the family and brought in an 2 acupuncturist. He considered some homeopathic medicine, 3 considered a second opinion. But the truth was that it was 4 just a matter of days before that young heart couldn't even 5 continue. 6 And you will never forget the words of James 7 McArdle as he describes they're having to give him CPR for the 8 second or third time. He's watched this. His explanation is, 9 "They were ripping my son apart to save his life. And I told
10 them to stop."
It was time to stop. Now, someone is
11 responsible for every
bit of that. And the person who was
12 responsible was still
over hiding at his girlfriend's. He was
13 still hiding,
wondering if he was going to get caught,
14 wondering if
Williamson County was going to find him. And he
15 knew that we could,
and he knew probably that we would. But
16 he had to put it off
as long as possible.
17 Then you heard from Dr. Vladimir
Parungao who's
18 the medical examiner. He had to actually look inside
of that
19 brain to make sure that the cause of death was what we
thought
20 it was. Nobody disagrees with that. He said that the
brain
21 was swollen and blackened with blood. You know, he
had to
22 take that young man's head and cut it across and
across here
23 and open it up and look at him. And that family had
to wait
24 for a funeral because Brandon Threet decided to ambush
him and
25 kill him.
56
1 And all
of that started at this boy's house,
2 Eric Stahl. I don't
like Eric Stahl. I don't like him. I
3 don't like his
family. I don't like his house. He came in
4 here arrogantly, got
his little new suit on. And he's
5 probably having
another party this weekend. But I can't touch
6 that. I'm not here
to touch that.
7 What I
needed Eric Stahl to do is explain to me
8 what happened in his
house. And sometimes you swallow your
9 bitterness to let
that get into evidence. What Eric Stahl did
10 is he set up one of
his many little parties. And what Brandon
11 Threet did, he went
to one of those many little parties. And,
12 unfortunately,
Terence went that night too.
13 That's
what killed him right there. That's what
14 we're supposed to
call a tragedy. We're supposed to think
15 it's a tragedy when
Brandon Threet decides to kill this man
16 because he's wearing
goggles and being silly. And you saw the
17 videotape of that
party. There's some pretty stupid people
18 there. The guy
doing, "the Bulls, the Bulls," (sic) I'd slap
19 him too. That's not
the one that Brandon Threet picked. They
20 want you to believe
that this thing was a spontaneous thing
21 that happened in the
blue. Oh, my goodness, what happened?
22 Boom, it's over. How
could we know?
23 This
thing did not happen suddenly. It started
24 in this living room.
You heard three witnesses who described
25 the many incidents
that happened. I think that there are at
57
1 least two incidents
between Brandon Threet and Terence. Mr.
2 Minton wants to kind
of fuzzy it up and refer to them as, oh,
3 somebody might have
been confused. Those witnesses were not
4 confused. The lawyer
might have been confused. The witnesses
5 were not.
6 Eric
Stahl starts off by saying he notices that
7 Terence does a back
flip, a successful back flip, I would want
8 to suggest, because
he lands on his feet. I'm not sure that
9 any one of us in this
courtroom could do that. For a
10 stumble-drunk idiot,
he was making an amazing move.
11 Nonetheless, it
sounds like he did bump that dresser. And
12 what was Eric's
response? No big deal. Come on, guys.
13 What
was Brandon's response? That's when he
14 started to target
him. He didn't like him. He had seen him
15 with the goggles. He
was obnoxious. Didn't like the way he
16 looked, just didn't
like him is what the witness said. So he
17 got in his face. He
called him a faggot. He already knew he
18 played soccer. He
didn't think much of that. We can kind of
19 just play over that.
Oh, that's just boys having fun. Most
20 of the time it is.
For Brandon, this time it was not.
21 Now,
there is another incident that happened
22 there. He physically
takes those goggles on a separate
23 incident away from
Terence. And then he shoves him down. Why
24 Mr. Minton thinks
that's unclear, I don't know. He's telling
25 you all the great
clarity in Brandon's statement.
58
1 And
what does the statement say? We'll find
2 that in a minute.
Brandon actually said that he pushed him.
3 What he didn't want
to say was that he pushed him down. But
4 you certainly heard
John Stroder testify to that. No doubt in
5 his mind. He
repeated it several times, no matter how many
6 times Mr. Minton
asked it different ways to try to get a
7 different answer.
That's a second incident. That's occurring
8 over time. And he's
still targeting the same person.
9 How do
we know this happened so many times over
10 the night? First he
says he thinks Terence is a girl, soccer.
11 That's in his written
statement. He calls Terence a faggot.
12 You heard a witness
testify to that. He yells at Terence for
13 doing a back flip.
You heard people testify to that. He
14 pushed Terence to the
ground. Now Brandon wants to play like
15 he doesn't remember
that. It's interesting that he can
16 remember it when he
gives a written statement. But nine
17 months later when
he's facing trial for murder, he can't
18 remember it. Why
does he not want to remember it? Because it
19 sets up what he does
later.
20 He does
take the goggles away from Terence. His
21 statement says that.
A witness sees it. But on the witness
22 stand he doesn't want
to say that. He doesn't want to admit
23 that. He can't
remember that. I thought Mr. Minton said he
24 didn't say anything
different on the stand than he told Pete
25 Hughey. He said lots
different.
59
1 Remember Brandon's story is they just
sort of
2 agreed to trade punches. And I asked him. I tried to
do this
3 as clearly as I could so you would remember it now.
"Didn't
4 Terence say he didn't want to do that? Didn't Terence
say no?
5 Didn't Terence turn you down?" No. No. No.
No. No. No.
6 No. No. No. "Now, are you saying you don't
remember, or it
7 didn't happen?" "It did not happen."
Why is John Stroder
8 going to make that up? He saw it. He repeated it
here in the
9 courtroom. Three times Terence said, "No, I
don't want to
10 exchange punches." And Brandon kept at him.
This is after
11 he's called him a faggot for having a flip. It's
after he's
12 pushed him to the ground and grabbed the goggles away
from
13 him. So this is a third incident where he is trying
to goad
14 Terence into the ambush. And you can hear it. How do
you
15 think Terence felt? Sometimes people say things, and
they
16 don't realize it. What did he say to Pete Hughey on
the phone
17 call?
18
(State's Exhibit No. 18, an audiotape, was
19 played in open court.
The intelligible portions are as
20 follows:)
21 BRANDON
THREET: It -- it was like through the
22 whole night.
23 (End of
audiotape presentation)
24 MR.
BRADLEY: Let's try that again.
25
(State's Exhibit No. 18, an audiotape, was
60
1 played in open court.
The intelligible portions are as
2 follows:)
3 BRANDON
THREET: It -- it was like through the
4 whole night.
5 It --
it was like through the whole night.
6 It --
it was like through the whole night.
7 (End of
audiotape presentation)
8 MR.
BRADLEY: "It was like through the whole
9 night. The little
faggot was bothering me the whole night."
10 That's what he meant.
That's what he was remembering. That's
11 what he thought. But
he doesn't want to say it to you on the
12 witness stand.
That's what happened. "All night long I had
13 to look at that kid
doing stuff, looking funny, wearing the
14 goggles, being
obnoxious, talking to my girlfriend. I lost
15 the game. I'm going
to get him." How do you get someone at a
16 party? You move them
to the backyard. That's always a swell
17 place.
18 Now,
Brett Midgley magically appears in the
19 backyard at the
magical moment with a video camera, a video
20 camera that
21 Pete Hughey finally
asked him, "Do you know about this thing
22 is videotaped?"
then Brandon remembers and says, "Yeah, yeah,
23 yeah, I did know
that." Did he volunteer that in the phone
24 call? Did he
volunteer that in the written statement? No.
25 He again waited for
someone to ask him. By golly, maybe he'll
61
1 cross his fingers,
and that tape is gone by now. It was gone.
2 Fortunately we got it
back.
3 How
amazing that Brandon knew that what he had
4 done had been
videotaped. He knew it was missing from the
5 house. And he knew
the name of a person to tell Pete Hughey
6 to follow up and call
and recover it from, which took about
7 half a day. He
didn't volunteer any of that, did he?
9 "Don't break my ribs." Terence knows something is going to 10 happen here. Who knows better what's about to happen, Terence 11 or Brandon? Terence is loose. His arms are down. He's 12 smiling. Brandon is like this. You just look at that. Why 13 is he like that? Because he's mad. He's got a target, and 14 he's got a plan. He's about to ambush this kid.
15 And then you've got Brett Midgley
saying, "Man,
16 we're videotaping this shit." Yeah.
"This shit" means
17 something cool, something important. Something neat
is about
18 to happen. How does he know that?
19 Do you think those kids come in here and tell 20 you everything? Do you think I could keep them on the stand 21 for a week and get all the truth? It's like pulling teeth. 22 How many of them came in here? They looked scared. How many 23 of them had to be reminded of what they said and what the 24 truth was? And how many of them even had the courage to say 25 they were scared of that guy? Do you think that doesn't 62 1 influence some of this? 2 What is the next thing -- before Brandon has 3 thrown a punch, what's the next thing Brett Midgley says? 4 Brandon is pissed. Was Brandon pissed before he started this? 5 Maybe they see that, and they knew it. How does Brett Midgley 6 in a flash know that Brandon is pissed before he has thrown a 7 punch? Because there's a plan. There is an ambush going on 8 here. And this is the first part of the ambush. God bless 9 Terence. He's still smiling. That's the last smile he had. 10 But he trusted Brandon up to that second. 11 Now, James Debrow, I didn't hear the defense 12 mention a word to try to explain anything about James Debrow's 13 testimony. That man was unimpeachable. He is an expert in 14 use of force. He has watched videotapes and has made judgment 15 calls against or for police officers about whether they 16 appropriately used force and what state of mind they had when 17 they were doing it. Did you hear a defensive expert 18 contradict a word that James Debrow said? No, you did not. 19 Did you see some other expert offer a different alternative? 20 You did not. They can call anybody they want to. They didn't 21 because there is not an expert in the world that would give a 22 different opinion than Sergeant James Debrow did. 23 It was a massive use of force here. It was done 24 deliberately. It was done with the knowledge that it would 25 inflict serious bodily injury and likely death. Not one word 63 1 did I hear of that in final argument. Mr. Minton is a good 2 man. He's a smart man. If he had an argument to make about 3 that, he would have made it. 4 Ralph Rubino gave you some other insight. How 5 often do we actually know the defensive capabilities of the 6 man murdered? Terence was perfectly capable of blocking a 7 punch if he knows it's coming. He thought that punch was 8 coming right here. It was an ambush. 9 Paul Cox helps you because you know that this 10 defendant especially -- he had a lot of training in football, 11 four years of football. He had a lot of footwork. He had a 12 lot of weightlifting. He had a lot of running. He had a lot 13 of hitting. He got a lot of instruction about why you wear 14 helmets. He knew about heads. He had more and better 15 knowledge than your average citizen about how you can hurt 16 someone and be hurt. And for Brandon to pretend with you on 17 the witness stand or to flat out lie that he thought he might 18 just get a bloody nose is shameful. And you reject it. You 19 go with your common sense. 20 You don't have to have someone come in here and 21 say that he had the right state of mind, that he knew what he 22 was doing. You can infer from the conduct that you see. The 23 law never requires us to have someone utter the proper words. 24 Otherwise, nobody would ever get convicted. Everybody would 25 come in like Brandon and in response to a leading question say 64 1 "I didn't know the risk." Oh, I'm sorry. Not guilty. You're 2 gone. 3 James Debrow, Ralph Rubino, and Paul Cox also 4 help you with what I think was the most likely fatal blow, and 5 that's the kick to the head. It was preceded by him being 6 completely distracted and taken to the other side of the yard 7 by Choate. And then he turns around. He has to turn around 8 and make a decision. He has to pick a target. He has to take 9 three steps. And he has to deliver that kick directly to the 10 target. And he wants you to think, "Oh, I didn't know 11 anything about that." 12 What does he do next? Runs. He runs like a 13 coward. He leaves a man on the ground, suggesting that he had 14 no reason to go check on him because he was going to pop up in 15 a second. And he heads out that door, and he goes directly to 16 his car. Why? Because he knows he's in trouble. He knows 17 Williamson County will find him, and Williamson County will 18 deal with him. So he's got to get to a safe place. 19 The first person that comes at him is his 20 friend, the person who has been by his side, as Mr. Minton 21 says, for four years. And what's the first words out of her 22 mouth? She didn't see it. How much could she have learned 23 about it in that little bit of time? Somebody just told her 24 something. I don't know what it was. But what is her 25 conclusion immediately? "I don't want to be around people 65 1 like you." She knew what he had done. She knew what he was 2 capable of. And she knew what he knew he was doing. Why 3 would she get so upset over something that was a spontaneous 4 accident that she didn't even know the details about? Why 5 would she say, "I'm broken up with you forever"? Huh? 6 Because it was an ambush, and even Kate won't put up with an 7 ambush. 8 And then he gets out to the front door. Now, 9 remember his written statement was nice and sweet. It was 10 about how I saw him loaded up in the SUV and taken to the 11 hospital, and I was worried and blah, blah, blah. Well, you 12 know, there were so many witnesses that can prove that to be a 13 lie. He went ahead and started off through his lawyer, Roy 14 Minton, letting you know that that part might not be accurate. 15 But we're going to go with, "I was confused." Because, yeah, 16 you can be confused and invent a memory that you saw a guy 17 being carried dead out of the house and put into an SUV. 18 Yeah, that's the kind of memory you just accidentally have and 19 then write it down so that you sound better. 20 What does he tell Blake Toungate? "I just broke 21 up with my girlfriend, and I've got to go," not "There is a 22 guy in there on the ground, and I may have killed him." That 23 wouldn't sound so good. He's already forgotten Terence. 24 Terence doesn't matter. It's all about Brandon. Let's take 25 care of Brandon and keep him safe and get him out of here so 66 1 Williamson County doesn't find him. 2 He goes to his car, his Tahoe. I guess it works 3 well enough to get him home despite all those needful repairs. 4 Now, later on he claims he saw Terence, but we know that that 5 didn't happen. And he knows that he can't use that at trial, 6 so he's got to just dump that little theory. But he wanted to 7 put that into his statement so that he could avoid an 8 allegation that he was a coward, and he left without finding 9 out what happened to Terence. You know now that's what 10 happened. 11 He hid for five hours. They want to make a big 12 deal. He was a big man. He didn't run to his mother and his 13 father. Excuse me. His mother is paying for his car, and 14 he's living with his father, paying for his school. You know, 15 when he bumps a door, his dad is all over him, makes him 16 rebuild that door. Don't you think 17 idea that if he goes back home and his dad finds out what he's 18 done what the consequences are going to be? He's not taking 19 responsibility. He's running from it. 20 He knew there was a videotape too, and he had to 21 stop and think about that. He needed some time. I don't know 22 what phone calls were made. Everybody out there had a damn 23 cell phone. Nobody made a 911 call, but they called each 24 other and let them know what's going on. And somehow that 25 videotape got out of that house and got to somebody else's 67 1 house. Fortunately we recovered it. But if more time had 2 gone by, who wonders what would happen? 3 He had time to think of a story. But I'll grant 4 you. There's not many stories you can come up with, with this 5 being on videotape it's a hard thing to do. So he gave a 6 written statement to start off with to Sergeant Hughey. And 7 he knew Terence. Look there. He says, "Terence, who played 8 soccer." I'm not saying he was his best friend or anything, 9 but he knew his name. He knew what he did. He had targeted 10 him at the party. 11 "I took the goggles off his head in the living 12 room and then pushed him." "Did you push him down? Did he 13 hit the ground?" "No, he did not." "Are you sure?" "No way. 14 I know he never went to the ground." Why would you want to 15 say that, Brandon? Would it sound like maybe you really were 16 mad at him, and you set him up for an ambush? "I then kicked 17 him one time in the head and then stepped back." 18 Wait a minute. Wait a minute. When Brandon is 19 over here testifying, he's got all sorts of memory problems. 20 He can't remember what he was thinking. He can't remember who 21 was where. He thought this was happening. "I can't remember. 22 I don't know. I was out of control." But his written 23 provides -- He hasn't seen the videotape. He hasn't watched 24 the videotape, I'm guessing, at this point. He says very 25 specifically, "I then kicked him one time in the head and then 68 1 stepped back." Pretty good memory, wrote it pretty well. 2 In the phone call, he talks pretty fluently, 3 doesn't? He doesn't stutter, doesn't stop, doesn't act like 4 he doesn't understand what happened. On this witness stand, 5 what does he do? "Oh, Lord, I can't remember anything." 6 And then this last one, "I calmed down and was 7 not upset at all." Sure. After he ambushed him, he felt 8 pretty good. All that anger went away. He's on the ground. 9 He's hurt. "I don't care how he feels. I don't care how 10 badly I hurt him. I feel much better now." 11 Then he gets to the police station. We take 12 some pictures. There were no marks on this boy, nothing. But 13 let's listen to parts of that videotape. What does he say? 14 He says, "I kicked him in the side of the head." Earlier in 15 the written, "I kicked him once in the head." He knows 16 exactly where on the head he kicked him.
17 (State's Exhibit No. 18, an audiotape,
was
18 played in open court. The intelligible portions are as
19 follows:)
20 PETE HUGHEY: You kicked him?
21 BRANDON THREET: Yes, sir.
22 PETE HUGHEY: Where did you kick him at?
23 BRANDON THREET: I'm pretty sure I
kicked him
24 like in his side of his head.
25 PETE HUGHEY: In the side of the head?
69
1 BRANDON THREET: Yes, sir.
2 PETE HUGHEY: You kicked him?
3 BRANDON THREET: Yes, sir.
4 PETE HUGHEY: Where did you kick him at?
5 BRANDON THREET: I'm pretty sure I kicked
him
6 like in his side of his head.
7 PETE HUGHEY: In the side of the head?
8 (End of audio presentation)
10 that on the stand? "No, I can't remember exactly where I 11 kicked him. No, I didn't target the head. No, I wouldn't do 12 that. I don't know where I was trying to kick at. I just 13 happened to kick him." That's a big fat lie. You know it 14 because he was able to repeat it and describe it right there. 15 Now that he's had nine months to think about it, now that he's 16 looked at the law a little bit, now that he's had to realize 17 those mental states, dadgum it, those are a problem, he's 18 altered his testimony. 19 He also described how hard he kicked him. He 20 could remember that then. 21 (State's Exhibit No. 18, an audiotape was played 22 in open court. The intelligible portions are as follows:) 23 PETE HUGHEY: And then he got up, and -- what 24 happened then? 25 BRANDON THREET: Then -- then I was getting the 70 1 person off the back. And then I kicked him. 2 PETE HUGHEY: Was he standing up when you kicked 3 him? 4 BRANDON THREET: No, sir. I'm pretty sure he 5 was getting up. 6 PETE HUGHEY: He was just getting up, and you 7 kicked him? 8 BRANDON THREET: Yes, sir. 9 PETE HUGHEY: So was he up on his all-fours yet 10 or what? 11 BRANDON THREET: No, sir. He was like -- like, 12 you know, when you're doing a situp and you start sitting up, 13 he was like that -- 14 PETE HUGHEY: Okay. 15 BRANDON THREET: -- from what I remember. 16 PETE HUGHEY: So did you kick him pretty hard? 17 BRANDON THREET: Yeah, I imagine. I was -- I 18 was pretty angry. 19 (End of audiotape presentation) 20 MR. BRADLEY: My goodness. Was he able to talk 21 that fluently with that great a memory on the witness stand? 22 No, no, because if he repeats those words here, "My goodness, 23 we might as well just plead guilty. Let's not do that. Let's 24 hope that the jury will believe my insane theory that I just 25 got out of control." 71 1 And he even tells us how he felt right 2 afterwards. 3 (State's Exhibit No. 18, an audiotape, was 4 played in open court. The intelligible portions are as 5 follows:) 6 BRANDON THREET: Like when he hit me and then I 7 hit him back, I don't know. I just got angry all of a sudden. 8 And then after that, then I was calm. I didn't -- I wasn't 9 angry or anything after I kicked him. 10 (End of audiotape presentation) 11 MR. BRADLEY: "I wasn't angry or anything after 12 I kicked him because I had been able to do what I wanted to 13 do." Now, where is the confusion? Where is the mystery? 14 Where's the old, "It was a baffling, you know, ten or eleven 15 seconds"? It's missing. It's only on the witness stand that 16 that appears. 17 He knows that he will be held accountable to the 18 law by twelve Williamson County jurors. And so he is trying 19 everything he can to avoid that. He would love for you to 20 just jump right to that old less serious thing, criminally 21 negligent homicide. This is not a menu. You're not in a 22 cafeteria. The law provides that you first decide whether or 23 not he's guilty of murder. All twelve of you have to look at 24 that and agree whether or not he is guilty of murder on any 25 one of those three theories. And you never even get to the 72 1 lessers of manslaughter or criminally negligent homicide 2 unless all twelve of you, every single one of you, says first 3 he is not guilty of murder. To do anything different would be 4 to violate that charge. I don't think you'll ever get that 5 far. You won't have to get to that. You won't have to get to 6 criminally negligent homicide. It never will get that far. 7 But it's not as if you go back there and go, 8 "Hey, anybody think criminally negligent homicide? We could 9 just start there." That isn't how it works. The State is 10 arguing for murder. The jury charge says you have to begin to 11 consider murder. And all twelve of you, every single one of 12 you, has to agree or disagree on that before you move on. 13 And I'm confident that all twelve of you on one of the 14 theories will think that he's guilty of murder. 15 Yeah, he's remorseful. You know, Mr. Minton 16 spent a lot of time on some rabbit trails during his argument 17 talking about all the things that we put on in evidence that 18 he thinks are bad things about the defendant. Well, think 19 back. Who mentioned those things first? Who brought out 20 first, for example, that Brandon smoked marijuana? Mr. Minton 21 did. Brandon is sitting right up here. It's his witness. 22 It's his client. And he says, "Son, did you smoke marijuana?" 23 "Oh, no, sir. I stopped back in about the middle of the 24 senior year." Did I bring that up? No. Mr. Minton did. 25 He's smart. He's good because what he's doing is he's setting 73 1 up an argument for himself for final argument. "Look at all 2 the mud this district attorney is slinging." 3 Hey, what's he doing? He wants to show you this 4 is such a clean-cut kid. My God, he's white, middle-class. 5 He's educated. How can you-all, white people, find him 6 guilty? Don't do that. That is what's going on, the little 7 subtext to this trial. Don't let that happen. 8 Did I bring up the car? Who brought up the car? 9 When Brandon is first testifying, what is he spending time 10 talking about? "Yeah, I work. And I work so I can buy a 11 car." How does that help you decide if he's guilty of murder 12 or not? What's he trying to do? He's a good kid. Come on. 13 He's a good kid. He works. Yeah, I'll tell you what he works 14 for. He works so he can drive around the neighborhood showing 15 this off. Yeah, that's remorse. This didn't happen before 16 the murder. This happened after the murder. And he wants you 17 to think that that should be mitigated because that was bought 18 by his mom. And he tried really, really, really hard to get 19 his mom to say that it was her car, which is laughable. I 20 don't really think she is tall enough to get in that car. 21 Even she said honestly, "No. That's Brandon's car. I'm 22 paying for it, but that's Brandon's car." 23 So where is Brandon's mind right now? "I want 24 to get in a little good time before I go off to the pen." 25 (State's Exhibit No. 7, a videotape, was played 74 1 in open court. The intelligible portions are as follows:) 2 UNIDENTIFIED MALE: Hold on, bro. Hold on, bro. 3 UNIDENTIFIED MALE: Ah, shit. 4 UNIDENTIFIED MALE: Hey, dude, don't like break 5 my ribs, all right? 6 UNIDENTIFIED MALE: We're videotaping this shit. 7 Oh, God. Brandon's pissed. 8 UNIDENTIFIED MALE: Ah, no, dude, no. 9 UNIDENTIFIED FEMALE: Brandon, no. 10 UNIDENTIFIED MALE: Brandon, Brandon, Brandon, 11 Brandon, Brandon, Brandon. 12 UNIDENTIFIED MALE: Ah, come on now. 13 UNIDENTIFIED MALE: Chill, chill, chill. 14 UNIDENTIFIED MALE: No. 15 UNIDENTIFIED MALE: Brandon. Brandon, chill. 16 UNIDENTIFIED MALE: Brandon, Brandon. 17 UNIDENTIFIED FEMALE: Oh, my God. 18 UNIDENTIFIED MALE: He's high as a kite. 19 UNIDENTIFIED MALE: All right. We have some guy 20 hitting the bog right here. 21 UNIDENTIFIED MALE: Did you get that? 22 UNIDENTIFIED MALE: I got that on videotape, 23 dude. 24 UNIDENTIFIED MALE: Dude, that's wrong, man. 25 UNIDENTIFIED MALE: Dude. 75 1 (End of audible videotape presentation) 2 MR. BRADLEY: I'm sorry you have to watch that. 3 But someone died. And someone's justice cries out for 4 recognition with that videotape. You know it's sad that kids 5 made that thing. But in the long run, it was probably a good 6 thing they did. What do you think we'd be arguing about what 7 happened today here if I didn't have that videotape? What do 8 you think Brandon would be telling you? What do you think all 9 those kids' stories would be if we didn't have the videotape? 10 How many of them would be protecting Brandon, the good jock, 11 the neighborhood friend? 12 That videotape is going to burn in all of our 13 minds, and we're going to think about ten, twenty, thirty 14 years from now. And I hope that the next thought is: That's 15 the videotape of where that boy was murdered because if you 16 follow Mr. Minton's suggestion, it's going to be, "Oh, yeah, 17 yeah. It's like what's that word, criminally negligent 18 homicide or something? Yeah, I don't know." "Well, what 19 happened?" "Well, it's a funny videotape. This kid just 20 backed up three steps and kicked this guy in the head and 21 killed him." "Right there on videotape?" "Yeah." "That 22 wasn't a murder?" Yeah, it was a murder. 23 The last words on that videotape are someone 24 saying, "That's wrong." Even as screwed up as these kids are, 25 drinking, using dope, being ignorant -- even in that state, 76 1 someone knew that this was wrong, and they said it. They 2 probably felt bad immediately. They had just seen an ambush. 3 They had just videotaped it. It sounded like it was going to 4 be fun, but that was wrong. 5 Now, nobody is going to remember this tomorrow 6 without a verdict. Do you think it's some sort of accident 7 that this courtroom is full, that people care? Williamson 8 County is looking to see if some kind(s) of kids get treated(better) than 9 other kind of kids, or do(es) everyone get treated the same. 10 (sic) That's a good-looking kid. Terence didn't do anything 11 wrong, and he died. James and Chung and Brendan are going to 12 sit out here, and they're going to wait for a verdict. I'm 13 confident that that verdict is murder. Thank you. |
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