By Patsy R. Brumfield/NEMS Daily Journal
NEW ALBANY – Twelve jurors and three alternates will take their seats Wednesday to decide if admitted murderer David Neal Cox Sr. dies or spends the rest of his life in prison.
The 41-year-old Pontotoc County man pleaded guilty Aug. 15 to the May 14, 2010, shooting death of his estranged wife, Kimberly Kirk Cox, 40, at her sister’s home in Sherman.
This jury of five men and 10 women will decide only what sentence he gets. Circuit Judge John A. Gregory will not make that decision because Cox’s attorneys did not give up the jury’s role.
Gregory told the new jury it’s possible the case may go into Saturday.
“You’re going to hear some bad things, some very bad things, some involving children,” defense attorney Kelsey Rushing told some 149 prospective jurors late Tuesday, the second day in the jury selection process which started with 450 called to the Union County Courthouse.
The state did not make a recommendation for Cox’s punishment, but clearly, it will not oppose his death.
The two days of jury selection, at $40 per person per day, comes to about $20,000 – a cost Union County must bear.
All the seated jurors will spend each night in a local motel until they’ve arrived at a sentence verdict.
District Attorney Ben Creekmore said it’s not unusual to take two days to pick a criminal case jury.
Wednesday, various witnesses are expected for each side. Some will be family members to testify about the overnight hostage situation in Sherman where Kim Cox died and the kidnapping and other crimes associated with the standoff with police. Others are expected to speak for Cox’s mental state and other mitigating factors.
Cox also pleaded guilty to two counts of kidnapping, burglary, firing into a dwelling and three counts of sexual assault involving at least one of two minor children.
Capital murder is charged when a death occurs during the commission of another felony, in this case, kidnapping..
Gregory is presiding over his first capital case as a judge.
• For more read Wednesday’s Daily Journal. Watch for updates @DJournalnow or Patsy Brumfield’s courtroom reports on Twitter @realnewsqueen.
5:02 P.M. POST
NEW ALBANY – State and defense attorneys are meeting outside the Union County Courthouse courtroom to select a jury to decide if admitted murderer David Neal Cox Sr. will die or spend the rest of his life in prison.
• • •
(Below is a running account of this afternoon’s action. Please excuse the typos and glitches.)
1:35 P.M. – Defendant escorted into courtroom with 10 law enforcement officers. Judge back. (ADA Luther, Defendant atty Kelsey Rushing in talks with judge.)
JUDGE – Invites two jury-pool members to bench to speak with him, attorneys.
Luther continues questions to audience. Says before lunch he was asking questions from jury questionnaire remarks. Continues through other questionnaires. (Man – says he isn’t a 100% no-death penalty man. Says evidence and law could balance scales… says he could consider both sides.) [In Q, man said he could not support death penalty under any circumstances.]
Luther continues from questionnaires. (Man – in Q, generally favored death penalty but that he couldn’t vote for it.) Asks him if he were on the jury, heard evidence, could he vote for death penalty if warranted? (Man says couldn’t do it.) (To woman – no opinion on death penalty but wrote undecided about death penalty.) Asks her, any more thought about that? (She says she could follow the law.) (To man – asks for clarity on position. Man says he wouldn’t like judging anybody, but with right evidence and correct action for punishment, he could consider it.)
(To man – asks him about only partially filling out questionnaire. For part on death penalty, what would you say is opinion? Man says he’s personally against the death penalty, strongly against.) Asks him what about in light of evidence? Man says under no circumstances would he consider the death penalty. (Another man – strongly against death penalty but could consider it. Explain? In this case?) Man says I would listen to facts, but I’d be going in on the side against it. Could set personal opinions aside in jury room. FYI, his son is with MHP.)
(To woman – said no opinion about death penalty but says could consider life but no indication on death penalty.) She says thinks she could make a decision under the facts and the law. I think I could impose death penalty. (Think you could? Or could you?) She says she believes she could.
Luther – some folks have changed their minds since they filled out their questionnaires. This is a real case, not just something theoretical. But when understood the process, they said they could make a decision. Now, let’s talk about ones who checked “strongly in favor of the death penalty.” Two categories – one could vote for life, other says couldn’t give life. Let’s look to first category – favor death but could vote for life. Has anybody in that category changed their minds? (No hands.) So, I assume you can choose life, even if you strongly favor death penalty.
(Asks man about making both decisions? Man – yes.) (Another man – on Q said couldn’t consider life without parole. Luther asks, in this case, could you consider both? Man says he could look at evidence and make a decision. Luther, even though you are in favor of death? Man – yes.) (Another man – Q says wouldn’t consider life. Luther – could you weigh facts, law? Man says he could do that.)
(Woman – Q says could choose death but not life. She says on personal opinion. But on facts, it could go either way. Set my own feelings to the side. It’s not about me.) (Man – says he could make his mind up after all the facts. Fair, impartial.) (Another man – says can’t consider life in prison no matter the facts.) (Man – Q says won’t consider life because taxpayers have to pay for life sentence. Luther – could you set those opinions aside for just this case? Man – no, mind made up.)
Luther – Asked about John Owens, owns Recovery Consultants, as defense witness. Anticipate we will hear testimony about drug use. addiction, affects of drugs. Will any of you be so outraged as to give the death penalty? Or would have such sympathy not to give death penalty? Either to prevent you from being a fair and impartial juror? (No hands.)
Anybody, for any reason … something we should know about that will affect your ability to sit as a fair and impartial juror – not to distract your attention? This is a catch-all question. (Man talks to judge.) Seven women, another man come forward.
2:43 – Luther says it was his last question. Appreciate your patience with me, going over all that stuff.
JUDGE – 20 minute bathroom break.
3:06 – Judge returns. (Woman comes to bench about issue. Man does same.)
Defense attorney Kelsey Rushing to question jury-pool.
Rushing – Introduces himself, other co-counsel. Also, Mr. David Cox, whose fate we’re here to decide. Penalty phase, understand that? It operates a little differently. Penalty phase … we’re not here to talk about evidence. Mr. Cox has already pled guilty to what he’s charged with. What you’re going to hear will be aggrevators and mitigators. I’ll talk in a little bit of detail later. Not going to be like a regular trial. Say it’s a robbery case. Certain elements that state must prove. If state unable to prove who person was, whoever is on trial would be found not guilty. That’s what we do in guilt phase.
But we’re not going to do that. They don’t have to prove anything in that phase. All elements have been proven. We’re in the penalty phase. We say “consider” death penalty or life without parole. Reason why because unlike in guilt phase, there’s always an option. So we won’t be putting on proof to weigh if he did it. No automatic verdict here. I say that because there are questionnaires that you filled out… some answers that say, if proven beyond doubt, you automatically go for death penalty. OK, here we are – it’s proven beyond reasonable doubt that Mr. Cox did it. Are you still of the opinion that once proven beyond shadow of a doubt that he did it – do any of you now find for the death penalty? (One person, another.) Asking very pointedly. No right or wrong answer. None in this situation. It’s only your answer. Only one I’m concerned about. Want it to be truthful.. for this reason … every juror is a perfect juror, but perhaps not for this case. To be honest in your convictions. Nothing wrong with beliefs. But in this case, we need you to be honest about it in this case. We need to know. It may be small to you but it may be major to Mr. Cox or to the state.
What is aggravation? These are things state must prove, defined by law, in order for the state to seek the death penalty. Whatever they are, state must prove it from the stand testimony. Not quite like elements of a crime. So, it’s not automatic. Just because he pled guilty, doesn’t make that penalty automatic. It’s an election that prosecutor agreed to seek. They could have chosen otherwise.
What we’re going to present: mitigators. Anybody know what that is? When think about it, think about what? (female juror gets sick. Now she’s back.) Use these to explain why things happened or why they happened like they did. They are those things in a person’s life – in this case, Mr. Cox’s life – that may or may not have led him down a path to what ultimately happened. His personal history, social history, drug addiction etc. My question: Are you, sitting as jurors, willing to sit to these things before making a decision about life or death penalty?
Better question: Do any of you so bent on your stance on death penalty, are those factors … they don’t matter? Just because somebody had a bad childhood or set of circumstances that didn’t turn out so good… that it’s no excuse for what he did on night we’re going to talk about? Anybody feel that way? Will you consider those? (Yes?) It’s not a matter of whether state proves aggravators … we’re listening to a story, through that is how you will make your decision. Can we do that?
More pointed questions: Not going to all out anyone. You know what put on questionnaires. Now I need you to be honest and do some soul-searching. Understand that oer past day and a half we’re kind of programmed to say “fair and impartial.” If there are things when I ask these questions, and you can’t be fair and impartial, we need to know. Some on questionnaires said crime was intentional and applies for death penalty. Taking of life was intentional and would find for death penalty. We don’t have to prove it. He’s pleaded guilty. It was intentional. Does that make anybody lean more for death penalty than you did 30 minutes ago (calls out flags raised… about 6). Anyone else?
Some of you put on questionnaires … no secret by earlier questions … that is the case involves children. A child. Does that make you change your mind? More toward death penalty than 15 minutes ago? (12 flags, 13, 14)
Those who raised placards, because it was intentional crime that involved a child, now more inclined to find for a death penalty.
Of those who didn’t raise flags, given those two factors, honestly, truthfully, do you think that Mr. Cox should be punished more harshly or worse punishment because it involved a child? (1 flag)
So you tell me, the rest of you, that you’re willing to listen to mitigation … or still consider life without parole. Is that what we’re saying… because… nothing’s automatic in a death penalty case. (Cox sitting head down, slumped over papers at table.)
This morning, Mr. Luther asked how many heard about this case. Raise placards. Want to get those numbers. (Calls them out …. must be at least 30-40). Of ones who raise hands, have you heard enough to formulate an opinion if you were chosen as a juror? Right now, know what you’re going to do? (1 flag) Asks man, about questionnaire… said under no circumstances would you consider life without parole. What has changed your mind? (Man comes to bench.) Asks woman same question – (Says when she filled out questionnaire …on her opinion. When heard more today, I felt like I needed to hear the whole story.) About what happened that night? (What led up to it, she says. I’ve worked in psychiatric with children for six years. It don’t happen overnight. Something led up to it.) Someone takes a life, his life should be taken? Still feel that way? (I didn’t even remember it until I came in. I thought he was in a psychiatric hospital.) Let me follow up. Would you consider as a mitigator, things like that? (Yes, like I said. When I make a statement on my opinion, when it’s not about me. I’d have to listen to facts that led up to it to make an honest decision. That would be right thing to do.)
To man – (I would have to listen before I made a decision.) If you hear mitigators, you won’t have your mind made up until you hear that? (Yes.)
Capital murder, that’s a charge that carries the death penalty. What is it? State doesn’t ahve to prove. He’s already pleaded guilty. Want to let you know what it is. It’s killing during the commission of another crime. That’s what you’re here to decide – other crime is kidnapping. Going to hear a lot of facts about what went on that night. But other crime was kidnapping. You’re going to hear a lot of facts … that are bad. Going to hear a lot of them. From children. Will testimony from children … make you more sympathetic? If that’s going to have an effect on you, let me know. Who can hear testimony from children … and be more impactful (woman asks what do you mean?) When you hear that, does it make you more sympathetic? (about 20 flags)
Part two of my question: Hear this testimony, will you lean more toward death penalty? (5 flags).
Anyone here who’s had friend or family member as victim of violent crime? (About 20)
Anything about knowing of friend/family as victim of violent crime … would affect your service on this jury? Make you lean more one way or another? (1 flag)
Anyone here has been a victim of violent crime? (4 flags) That experience that would adversely affect you on jury? Make you decide more one way or another? Death? (1 flag) Life without parole? (no flags)
Generally, is anybody here who has strong views on drugs and drug use? Strong negative views? (3 flags, 4) (Question – do you mean shouldn’t be responsible for actions? What are you asking?) Is there anybody here with friends/family who are or have been substance abuse problems, not cigarettes? (half the room) Those who raised your hands, anything about that … make you less sympathetic about hearing of person’s addiction? (1 flag) Converse of that, more sympathetic? (1 flag)
Because state does not have to prove any type of factual evidence beyond reasonable doubt … already proven … why? Because he pled guilty. Does anyone think it’s Mr. Cox’s turn to show why he should not get the death penalty? (7 flags) Reverse: anybody think with guilty plea, it’s still up to state to prosecute him? (1 flag) (Man says he doesn’t understand.) Still on same page of open minds? That we have to listen to both sides? Not overdo one or another … listen and make decision from what we hear? Do you still think it’s on the state to prove it? (4 flags)
Asking, same amount of weight for Cox you will put on state. (Man asks question.)
This is very … deciding isn’t like guilt phase. In death penalty phase, it’s a personal choice. You’re going to hear evidence – at end of day, you still have to choose.
Followup to question – is there anyone … now, who has changed your mind on your position? From one way or another? Just need to know. Your answers, a true answer.
Other than some jurors we’ve talked to, has anybody over past 24 hours heard anything about this case? Or about this jury? Away from us? (3 flags) (Man said he heard part of news – did not influence.) (Another man – conversation, not in this room.) We talked about the media and people heard about it. Ask question … was anything that you heard that influenced you one way or another when you got it. Like, I read it in the paper, it’s done deal, he did it. Lady made up her mind because of what she read in the paper? That it was the facts? (no flags) We’re back to pen minds on consideration.
Thank you. 4:11 p.m.
(Attys go to bench with judge.)
JUDGE – We’re going to go back with lawyers and talk about jurors. If you’ll be back at 5:30. Hope to finish this today.
• • •
NEW ALBANY – Potential jurors returned to the Union County Courthouse today for what many hoped would yield a panel to decide the fate of admitted murderer David Neal Cox Sr.
Cox, 41, pleaded guilty Aug. 15 to the May 14, 2010, shooting death of his estranged wife, Kimberly Kirk Cox, 40, at her sister’s home in Sherman.
This jury’s decision will be only whether he gets life in prison or the death penalty.
Cox also pleaded guilty to two counts of kidnapping, burglary, firing into a dwelling and three counts of sexual assault during a hostage situation involving two minor children.
Capital murder is charged when a death occurs during the commission of another felony crime.
Circuit Judge John A. Gregory presides over his first capital case.
A jury must decide Cox’s fate because judges are not authorized to do so in capital cases.
Jury selection began Monday with some 450 registered voters summoned to the jury pool, nearly twice the usual number, because of the case’s notoriety.
The state is represented by District Attorney Ben Creekmore and Assistant D.A. Kelly Luther. Cox’s attorneys are T.R. Trout of New Albany, and Capital Defense attorneys Kelsey Rushing and Andre de Gruy of Jackson.
• • •
(Below is a running account of today’s action. Please excuse the typos and glitches likely.)
9:12 A.M. – Courtroom deputy calls out numbers, “calling roll” to check on jury pool’s attendance. Bailiff notes 149 present.
9:49 – Judge enters courtroom. Instruct jury pool to turn off phones. Excuses 29 jurors (1111x 1111x 1111x 1111x 1111). These look like combo of pro/anti-death penalty people, business owners, people with folks at home who need their care.
9:54 – Asst DA Kelly Luther leads state “voir dire.” Introduces himself to the jury pool. We’re here to decide what punishment is for David Cox. His crime has already been decided. He’s admitted it. It’s state of MS versus David Cox. Here to decide what appropriate punishment is, after hearing all the evidence. Different people are suited for jurors in different type of cases. We’re here to determine if you’re appropriate juror in this case – 12 people who can decide it from what they hear from witness stand and what judge tells them the law is. Not from your past … only from the stand. We all have our pasts but any pre-conceived notions, that’s OK, if you can say under oath that you can set them aside. We hear things …. people who commit murder, ought to string them up a tree. We’re here to decide if Cox case deserves the death penalty after hearing all evidence in this case. Judge has asked questions. I’m going to ask a lot of them again. Mr. Rushing likely will ask them again. To get to the bottom of it.
I’m going to encourage you .. at any time, and you’re debating with yourself about whether to stand up and say something. If you do, resolve the debate of standing up and saying it. May be unimportant or very important. Encourage you to be truthful, not bashful. Say what’s on your mind. (Goes through people in Cox’s family. Asks if anybody know if they are related to Mr. Cox?… no hands. Friend of Cox or family? … no hands.) If you’d been in Walmart and met him, would you have recognized him as David Cox or somebody you went to school with? … no hands.
Kelsey Rushing works for Office of Capital Defense. Andre de Gruy works with him too. (Asks if anybody knows them? … no hands.) Also, T.R. Trout … has he represented any of your family or friends? … no hands. His son practices law with him. Have they represented you or close friend? (2 flags go up.) What about other side, has Mr. Trout ever been on other side against you or family friend?… no hands. (Go to church, consider Trout a friend?) … no hands.
(Asks other expected questions … about himself, DA Creekmore … 1 man, he’s Creekmore’s next-door neighbor. Says won’t affect his decision. Woman stands … knows DA. Says went to church with him, considers him friend. She says can set that aside for verdict.) Continues with expected questions about any connections with DA’s Office, prosecuted you, family/friends? Hands go up … one woman had family member prosecuted and says deciding Cox’s fate would be different from deciding guilt or innocence, and she could do that. Other stand – woman works for Ashland atty Tony Farese, says she can set past aside. Another, man – apparently occurred recently – man says he doesn’t hold a grudge and can be fair and impartial. Woman – husband prosecuted, 5 yrs ago. Says can be fair, partial. Woman – hasn’t been that long, says she will try her best. Luther follow up – can you or not. She says will work to the best of her ability, says she will try to be fair. Kelly – do you have doubts about what you can do? There’s no right or wrong answer. Just the truth. She says she believes she can. Man – brother recently prosecuted. Man says he believed it was true, could set it aside and be fair and impartial. Another man – fellow employee prosecuted in 2000. Can be fair, impartial.
10:19 – Near spontaneous bathroom break. Luther says he’s always been told never to miss an opportunity to go to the bathroom, says, “So. I think I’ll go.” Judge declares break.
10:40 – Luther resumes questions of jury pool. To list potential witnesses, in case pool may know any of them – not that you know them, but because you know them … does that connection such that you can’t decide this case about Cox’s punishment. That’s the standard for my questions. Call – Dr. Marc Webb lives in Jackson area (no hands), John Owens, runs Recovery Consultants, from Jackson area (woman comes to bench … she is same who said a family member was prosecuted by DA and that she could be fair with making a decision on Cox’s sentence), two sisters – Linda Carpenter of Lafayette County and Charlotte Houston in Pontotoc County – defendant’s sisters (woman – one’s daughter goes to my church. Philadelphia Baptist Church. Just acquaintances. Says this jury service and decision here wouldn’t bother her.), MHP investigator Paul Moore, MHP investigator Chris Jones, 911 operator Bud Grisham, Tupelo PD SWAT negotiator Allen Shavers, Tupelo PD SWAT James Hood, Raiford Winstead of Kosciusko, MS Crime Lab scene expert Dewanna Broughton, Christy Salmon – Kim Cox’s sister, Michael Houston – brother-in-law of defendant and husband of Charlotte, Raymond Smith of Pontotoc County, Bobby Hall of Union County … been in trouble, William Sanford … has been in trouble here of late, Coroner Mark Golding, Ellen Steel of Family Resource Center. Bennie Kirk – Kim’s father – Melanie Kirk, Lindsey Kirk, Christy Kirk, family members.
That’s a lot of people. Asks if related to any of them. (4 hands up …say not affected by relationships … one says woman’s grandmother is her mother’s first cousin… another woman asks about more info about witness, Luther says he’s been in trouble, and woman says “everybody in that family has been in trouble.” Gets laughs in courtroom. Man says 911 operator is first cousin of my former first wife.)
Luther asks if any in pool a close personal friend of any names called. (Woman – Lindsey Kirk in church youth group. Says she can make decision, fair and impartial. Would not be hard for me, woman says. Another woman – friends with Christy. Said could set that aside, be fair and impartial. Another woman – friends with Melanie. Her mother worked with Melanie. Says she can set aside knowing Melanie and make decision about punishment. More ……… Woman – works in doctor’s office used by Kirks. Can set that aside. About death penalty – says she could impose it. Woman – knows Kirks, acquaintances. Taught Lindsey past 2 yrs at Myrtle and knows Bennie. She’s a teacher. Could be fair, impartial. Man – consider friends with Denny (sp?), also knows Christy and others. Says could be fair, impartial. Could impose death penalty.) (More people know other family of Cox’s deceased wife, Kim Kirk Cox.)
Luther – issue is not whether you’ve heard something about this case or know somebody involved. It’s not even whether he’s guilty. Issue is whether you can take what you may have heard or who you know, and set it aside and base findings from witness stand and what judge tells you the law is. It’s can you set it aside, just this case, not generally.
That said, has anybody heard anything about this case before you came into courtroom? Read in newspaper, hear on TV – happened May 14, 2010… 2 1/2 years ago. Doyou remember anything? Second part is this – if you heard or knew somebody, is there anybody who can’t set it aside and judge this case on what you hear in this courtroom and what the law is? (No hands.)
Who has heard anything? (half courtroom). I didn’t expect otherwise. Of all of you, now is the time to tell us if you can’t set that aside. If you can’t, that’s OK. Tell us. (1 hand – man comes up to bench.) Who you know or what you heard, that you can’t judge this case. (No more hands.)
I’m glad to live in Mississippi, lived here all my life. Religious beliefs still mean something. Heard judge talk about conscientious scruples. Don’t know what it means, but I know what religion means or my personal beliefs. In America, we all have right to believe or not believe what we want. We have that right. But we also have disputes about all of this. Some people believe that they can’t judge anybody else, especially about death penalty cases. Don’t believe they have biblical authority to decide such a case. I respect that. WE can have differences of opinion. For religious beliefs, does anyone think they should judge this or death penalty case? (woman – keeps shaking her head as Luther tries to ask about whether she could set it aside? No sir, she says, repeats.) (Man – can’t vote for death penalty.) No others.
This is as serious as it gets. Nothing comes close to its importance. Is there anyone here who hasn’t spoken and knows they can’t give the death penalty – religious, not fair punishment, thinks it’s too good for him, any reason? (Man – I’m not sure, but after facts, maybe I could.) We’re not asking you to know now… but if you know going in that you’re against the death penalty … could you consider death penalty? (Man says he could be likely for it.) Kelly says his questionnaire says he could consider it. (Another man – asks to speak to judge.) (Woman asks to speak to judge.)
Looking at juror questionnaires, Luther asks specifics to those who said had strong feelings about death penalty or responded in a way that wasn’t clear. Asks young woman if she still strongly opposes death penalty. She says she hasn’t changed her mind. To man, asks what his opinion is because of conflicting responses about death penalty. Man says he believes, as minister, in death penalty when necessary. Not position like to be put in, but if he were, he would accept responsibility and obligation. Says he could follow the law. Death penalty would be an option, could make that decision. Another man – could support death penalty, depending on information.
JUDGE – 12:05 – Hearing will go longer than I thought, but let’s break and be back at 1:35.
• • •
The state is represented by District Attorney Ben Creekmore and Assistant DA Kelly Luther. Cox’s attorneys are T.R. Trout of New Albany, and Capital Defense attorneys Kelly Rushing and Andre de Gruy of Jackson.