By Patsy R. Brumfield/NEMS Daily Journal
By Patsy R. Brumfield
NEW ALBANY – Potential jurors will return Tuesday as the court seeks 12 jurors to decide if David Neal Cox Sr. will serve life in prison or receive the death penalty in the capital murder of his estranged wife.
Jury selection in the sentencing trial began today at the Union County Courthouse where some 450 – twice as many as usual – filed in slowly soon after the building opened.
Cox, 41, of Pontotoc County pleaded guilty Aug. 15 to the May 14, 2010, shooting death of Kim Kirk Cox, 40, at her sister’s home in Sherman.
He also pleaded guilty to two counts of kidnapping, burglary, firing into a dwelling and three counts of sexual assault during a hostage situation over two minor children.
Capital murder is charged when a death occurs during the commission of another felony crime.
His sentence was deferred until Sept. 17 while a pre-sentence report was conducted to help guide penalty decisions.
District Attorney Ben Creekmore will lead the state’s case against Cox.
Although the shooting occurred on the Union County side of Sherman, the Coxes reportedly lived apart in Pontotoc County.
In October 2010, Cox was indicted on eight counts – capital murder, two kidnapping, burglary, firing into a dwelling and three of sexual battery.
Other charges Cox pleaded guilty to Aug. 15 – listed and explained within a three -count information – were jail escape, burglary and burglary of a dwelling.
An information is a legal charge that doesn’t come from a grand jury as an indictment does.
More than two years ago, the fatal standoff lasted across a Friday night and early into Saturday morning, when law enforcement officers entered the home and arrested David Cox without incident.
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(Below is a running account of action in the Union County courthouse. Please excuse the typos and other glitches likely as I type as fast as necessary.)
In court today: Judge is Circuit Judge John Gregory. Cox’s attorneys are T.R. Trout, Andre de Gruy and Kelly Rushing. Prosecutors are District Attorney Ben Creekmore and Assistant Kelly Luther.
Proceedings begin with jury selection from some 450 called, twice as many as usual, Luther said earlier.
9:00 a.m. – Clerk Phyllis Stanford and staff organize jury pool. Takes nearly two hours.
10:58 – Judge Gregory seated. Attorneys prepare to question potential jurors.
Defendant David Cox enters wearing black sport coat, khaki slacks. He is quite tall and balding.
Gregory calls up two potential jurors. They are excused.
Judge asks attorneys if they’re ready. They say yes.
11:05 – Gregory begins, introduces himself to them. Has some questions for them. (Using microphone so large crowd can hear him.) I’m not trying to interfere with your business, but we’re just trying to get a fair jury.
Judge says he expects trial to last better part of this week.
First asking jury pool for anyone convicted “of an infamous crime.” (This is a crime for which someone can be imprisoned.)
Anybody convicted of bootlegging? (Gets laugh from audience). Gambling? (No answers.) Asks other standard questions, such as recent jury service, cases pending in circuit court. Asks questions about legal excuses, such as illnesses (about 10 people line up to tell their situations), someone ill at home which requires you to be there (about 10 more line up). 11:57 a.m.
Judge – we’ll take a break. It’s a long process, may go into tomorrow for some of them. Get lunch, whatever. Back at 1:15. Try to get this process finished.
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NEW ALBANY – Hundreds return from the lunch break as they await questions from Judge John A. Gregory and attorneys to determine which 14 will sit in judgment of David Cox.
JUDGE – Tells jurors the trial may last most of the week and jurors will be sequestered in a motel.
He asks more standard questions, including about who are sole operators of businesses (about 20 get in line). Says he’s found older jurors are good ones… but he says anyone who’s 65 or older can be exempt from jury service. Can still serve. WE need people with a little old time sense … to see through things.. people with common sense. Asks who’s 65 and doesn’t want to serve. (Several raise number placards… 3 did). Asks if there’s anything else anybody might want to tell him. (1 comes to bench.)
2:18 – JUDGE – Let’s take short break, 15 mins.
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3:10 – JUDGE – To call out names and excuse these people, OK? (Reads off 31 names) Explains to them how their names were selected for jury pool – it was a random computer choice. Swears in those remaining. Admonishes jury pool against speaking with each other or anyone else about case.
About to go into “voir dire,” which is questioning of jury pool by attorneys on each side. Not to embarrass you but to determine if there’s any good reason you should not serve on this jury. To ensure an impartial jury for each side. Still others may be excused from this process. To select 12 regulars, 2-3 alternates.
This is a criminal case, sentencing phase of a capital murder case. Intros attorneys.
(Judge begins new questions – such as, if anyone is related to any of these attorneys or has been associated with them in other ways …) (One woman says she works for Ashland attorney Tony Farese, can be impartial.)
Asks if anything in your background … possible jury will consider death penalty or life without possibility of parole. Mr. Cox pleaded guilty to death of Kimberly Cox, also kidnapping.
Capital murder case. Usually in two phases – first is trial, the sentencing phase follows about penalty. In this case, Mr. Cox pleaded guilty to capital murder so won’t be a guilt phase. This jury will determine whether he will get death penalty or life without parole. Will hear evidence for and against death penalty.
Court will ask other questions. You must understand certain terms: Death penalty, conscientious scruple (objection because of moral reasons … or have strong feelings in favor of death penalty.)
Conscientious scruples against death penalty? Could you consider the evidence and follow instructions from court anyway? Can you set aside scruples for just and right verdict? (2 flags go up. Woman asks if she can speak with judge. More flags go up. Four others come up to speak with judge. Two more walk up. Three more.) 3:54 p.m.
Judge – On other hand, listen to this one: Do any of you strongly favor the death penalty and think you would automatically vote for the death penalty, regardless of evidence or the court’s instructions? (9 raise their juror placards. Seven more. Line up for talks with judge.)(Middle-aged white man wearing camo shirt overheard telling judge, attys – He shot her, he pleaded guilty, he deserves to die.) (3 more walk up.) Another guy overheard saying doesn’t think citizens ought to have to house and support an inmate for life.
4:49 – JUDGE – Everybody doing OK?
Victim in this case is Kimberly Kirk Cox. Anybody kin to her? (1 hand.) (Woman says third cousin.) Anybody related to defendant, Mr. David Cox? (1 hand.) Any of you have any personal knowledge of the facts of this case? (No hands … 3 hands.) Judge says don’t relate any facts here, need to come here. (Woman says she works at hospital, just hearsay.) Judge asks if anybody has told you something about the case that claims to know anything about it. (Another woman wants to talk to judge.)
5:46 – Judge back from break.
A few more questions to try to get answered, maybe can’t tonight. Some mention … uh, question is have you seen anything on TV, read about it in the newspaper, read about it on Facebook? (Lots of hands go up.) Question is this: Have you formed an opinion from media information or could you heard this case based on the law and evidence and render an impartial verdict. If you can’t, please raise your hand. (1 hand. Says formed an opinion.) (Another hand goes up. Has formed an opinion, man says. My mind’s made up.)
Asks question again: Because of anything you’ve seen or read in newspaper, can you put that aside – you’ll decide case on what you hear in witness chair and on law. Who cannot do that? (Another hand.) Two men, one woman. Anyone else? (No others.)
Another question: Clerk will make motel accommodations. We want you on jury and stay in Holiday Inn Express until verdict is reached. Will provide food, etc. for you there. Will sequestration from your family, will that keep you from being fair and impartial in this case? (No hands.)
All right, we’ve spent a lot of time. You’re the most important cog in this wheel. Court wants to make sure whoever is selected is comfortable. Let me know and we’ll do our best to provide for you.
Catch-all question … in any manner affect you int he trial of this case? (1 hand. Already talked to judge.)
Ladies and gentlemen, I’ve been in law business since 1977 and prior to that was interested in law, I’d read newspaper and try to figure them out. Watch TV, Perry Mason, see how he’d come out. Thought I became pretty good student of the law, although I wasn’t. Went to law school and thought I was pretty good, took Bar exam and passed it first time. Thought I was smartest fellow I knew. What I’m getting to is … I know each of you had same experience about what you think the law is. At end of case, won’t be any newspaper, TV or radio commentary about what the law is. The court will instruct you about what the law is. Nothing else matters.
Question: Can you follow that law, and put that TV law, radio, TV and follow this law. Can you do that? (No hands.)
Is there any reason… think about this … any reason that you can’t be fair and impartial in this guilt phase hearing. Let court know. (No hands.)
All right, it’s time to voir dire by parties. Probably a little late to start that. (Attorneys confer at bench with judge.)
Now, can go home tonight. Come back tomorrow, attorneys will ask questions as the court has. Hope questions at bench will expedite what we do tomorrow, 9 a.m. Remember, don’t talk to anybody about this case. Don’t discuss with anybody.
5:59 p.m. – Recess for day.
Kelly Luther says somebody has a question. Man asks if they return, should they be prepared to be sequestered? Judge says that’s a good idea. Think we’ll break at some point and give jurors an hour to prepare to return.
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