BY FOGLEMAN:

It's almost over. For y'all. In about a month, it'll be over for me. (sigh) But for the Moores and the Branchs and the Byers, it's not ever gonna be over.

What this is talking about is responsibility. And you heard the defendant's own expert say, Warren Holmes, that it is common, it's usual, for a person who confesses to a crime to lessen their involvement. You are not restricted to what this defendant says that he did. You're entitled to look at the evidence, all the evidence, the number of weapons, all the circumstances, the type of knots and decide that he was more involved than what he says he was.

If we did not have -- if we didn't have a confession -- let's say you didn't have a confession, instead all you had, all you had was a fingerprint of this defendant on Michael Moore's arm, would you say, 'Well oh my gosh, we don't know exactly what he did.' No. I would submit to you that you'd be entitled, from all of the evidence in the case, every bit of the evidence, to look at that evidence and draw your reasonable conclusion from that evidence as to what this defendant did.

Now, we know, we know from this defendant's own mouth, in the interview before he admitted being there, that he had a phone call the day before from Jason Baldwin saying that they were going -- their intention was to go and beat up some boys. He went there knowing that was the intention. And they went there and they did it.

He refers to his, his, his borderline IQ. He's not retarded. He is not retarded. You've got the picture of the real defendant. That's not something that we're showing you trying to make you mad at him, or angry at him, to prejudice you against him. It's to show you that what you see is not necessarily what you get when you look at this defendant. It's not necessarily what you get. What you see is not -- can't always take everything at face value and the experts testified that this defendant, how did he function, not as far as book learning, but how did he function? Do you remember the testimony said that he functioned on an average level, his performance IQs, how he functioned apart from verbal things and, and book learning things, he functioned on an average level.

When you go back there and you consider the punishment, there are a number of things to consider. The punishment that would serve to deter this defendant from doing something like this again and even more importantly, what effect will your verdict have on other people who might engage in similar type behavior. Is it gonna be a message that well, it's a bad thing, but it's not so bad? I don't believe that y'all could find that way.

In this case, Michael Moore, he won't ever go to Scouts again. Stevie Branch and Chris Byers and Michael, they won't play ball. They won't play basketball, they won't play baseball. They won't grow up. Their lives are gone. But your verdict, it can't, it can't bring 'em back. Nothing you do can bring 'em back and really, honestly, you look at it, nothing you do is gonna make the families feel all that much better. It might make 'em feel good for an instant if you gave him the maximum, but it's not gonna -- in the long term -- it's not gonna make that much difference. But what can your verdict do? It can stop this kind of junk. It can stop these kids doing these stupid, crazy things and it can put an end to it. And that's what we're asking you to do.


THE COURT: Alright, ladies and gentlemen, you may now retire to the jury room to consider your verdicts with regard to punishment and I'll read those verdict forms for you.

The first reads:

We, the jury, having found Jessie Lloyd Misskelley Jr. guilty of first-degree murder in the death of Michael Moore fix this sentence at a term of - with a blank that you would complete - not less than ten nor more than forty years or life in the Arkansas Department of Corrections with a signature space for the foreman. You must unanimously agree upon the punishment that you complete in the blank and whatever your unanimous finding is should be reflected in the blank provided and then the foreman would sign.

The next verdict form reads as follows:

We, the jury, having found Jessie Lloyd Misskelley Jr. guilty of second-degree murder in the death of Steven Branch fix his sentence at -- you have three alternatives, A, B, and C. A) a term of - a blank - not less than five nor more than twenty years in the Arkansas Department of Corrections or B) a fine of - with the appropriate blank - not exceeding fifteen thousand dollars or C) both a term of not less than five nor more than twenty years in the Arkansas Department of Corrections and a fine not exceeding fifteen thousand dollars, again with the appropriate blank. In order to fix any punishment, your finding must be unanimous and uh you would fill in the appropriate blanks that represent your finding, the foreman would sign.

The third verdict form reads identically to the last with the exception that this is for count three in the death of Christopher Byers ah, on a second-degree murder charge.

So you may now retire and consider your verdicts with respect to punishment.

Alright, Court will be in temporary recess.

(RECESS)