Day 3, Dec. 16, 2004
ATLANTA — Testimony ended abruptly Thursday in the murder trial of Jason Futch when Futch, who had been assailed all day by a string of prosecution witnesses, decided not to testify in his own defense.
His decision meant Futch’s attorneys ended their defense without calling any witnesses and they presented no evidence.
Prosecutors Shukura Polk and Ron Boyter had expected Futch to testify to try to explain why he acted the way he did the night of Mike Weaver’s death. They were prepared to question him closely about his actions in the early morning hours of Aug. 16, 2003.
They had spent the day Thursday presenting eight witnesses, ranging from other young people who were present during the shooting, to law enforcement officers and, finally, to the medical examiner who testified about the autopsy he did on Mike’s body.
Although all of the spectators present in support of the Weavers – there were about 35 people on Thursday – left the courtroom during the medical examiner’s testimony, we were told that Futch cried during the doctor’s testimony.
Following the presentation from the doctor – the prosecution’s eighth witness of the day, and the 12th overall – the spectators reassembled in the courtroom to hear that the prosecution had rested its case. That happened after the doctor finished testifying, which was shortly before 3 p.m.
With that, it was the defense’s turn to present witnesses and evidence in Futch’s behalf.
Fulton County Superior Court Judge Tom Campbell read from the bench, informing Futch that he had the right not to testify, that he couldn’t be forced to testify, and only he could decide if he would do so.
With that, defense attorney Richard Hagler told the judge he wanted to talk about the decision with Jason and his family. A 15-minute recess was granted while the defense attorneys and the Futch family went to a conference room.
When the attorneys and the judge reassembled, Campbell again asked the defendant if he wanted to testify, and the answer was no.
The judge brought the jurors back into the courtroom, and Hagler announced that the defense rested. Several jurors looked surprised, realizing that they would hear nothing from Jason and would not receive any evidence in his defense.
It was 3:26 p.m., and Campbell told the jurors that they would adjourn for the day and would come back Friday morning, beginning at 9:30 a.m., when the attorneys would present their closing arguments. That should last no more than two hours, and the judge then would issue his instructions to the jury, and jurors should begin to deliberate their verdict by late-morning.
There’s no limit on the amount of time the jury would be allowed to deliberate – it could be a short time or a very long time. They will be asked to select a foreman – a spokesperson, or leader – and then will examine the evidence. How they do that is up to them, but at some point they will take a vote. If there is disagreement, they will continue to talk about the evidence, answer their own questions, looking for unanimous agreement on a verdict.
Once they reach a verdict, they’ll come back to the courtroom and announce it. If Jason’s convicted, the judge may decide to pronounce the sentence immediately. If he does that, the family of the victim is first allowed to present “victim impact” statements, speaking to the judge about how the family has been affected by Mike’s death.
It’s also possible the judge will decide to put off the sentencing until another day so he can consider the more than 70 letters filed on behalf of the Weavers, as well as his own rationale for determining Futch’s sentence.
Either way, we are hopeful that the jury will deliver a verdict sometime Friday afternoon.
Day 3 testimony
The first witness on Thursday was Adam Clements, 25, who was a fraternity brother of Mike’s from Milledgeville. He was a good friend of Mike’s, and described what happened at the apartment.
He said after Mike had pinned Jason in the wrestling match, Jason started screaming obscenities, saying he was going to kill Mike. But Mike was backing up, apologetically.
After Mike was shot, Adam said Mike emerged from the bathroom with a look of disbelief on his face. Mike went across the room as his friends rushed to help him, and Mike eventually was helped to the floor in the hallway just outside the apartment door.
Adam said he went to help Mike, but there were already several people bent down trying to help. He said Jason walked up and told Mike to “get up, you’re not hurt that bad.” Adam said he went outside because there was no more room available to help Mike, and he said he “didn’t want to see much more.” Outside, he called for an ambulance.
The next witness was Sarah Davis, 22, who was an acquaintance of Jason’s from Brunswick. She also knew the Brunswick people who were at the party.
She came to the apartment after being called by a friend to come pick him up and give him a ride home. She did not go to the concert with the guys that night, but was in the apartment during the shooting. She testified to many of the same details as the other guys had done.
During her cross-examination by Hagler, however, she scored a few points while being questioned about inconsistencies in her testimony and the statement she gave police the night of the shooting. Hagler accused her of changing her story, but she directed him to the second page of her statement and corrected his assertions. She was a good witness and withstood Hagler’s assault on her testimony.
The last young person called to testify was Kenny Roberson, 22, another Georgia College student and one of Mike’s fraternity pledge brothers. Kenny was from Brunswick, and he was Jason’s roommate in the Atlanta apartment. Kenny was Mike’s friend, and he was the one who had offered the apartment as a place where their friends could stay the night after the concert.
After everyone had returned to the apartment, Kenny had retired to his room and was in bed when the shooting took place. He got up, went out and tried to help Mike, but then went outside to help direct the ambulance to the best entrance to the apartment.
Two police officers – Carlos Figueroa and Detective Lynn Daniel — were then called as witnesses. They described arriving on the scene, securing evidence, processing the evidence.
Daniel said the 12-gauge, pump action shotgun could hold four shells and was fully loaded with #4 buckshot shells, often used for killing deer. The shell that was in the chamber had not been ejected, and the safety feature had been clicked off – it was ready to fire again. The gun was found on Jason’s bed.
Daniel also found a full box of shotgun shells on a table in Jason’s room. He said it was “not very common you’d have that just sitting around.”
The detective also identified the doors which had been brought into the courtroom. In doing so, spectators saw a side of the door they had not previously seen – it had a trail of Mike’s blood that flowed to the floor, apparently where Mike had leaned after opening the door to exit the bathroom.
The officer also testified that the gun was originally assigned to the Glynn County Sheriff’s Department in Brunswick, and he also said the height/weight on Jason’s driver’s license indicated he was 5-foot-6-inches tall and 190 pounds.
The next witness was Jason’s father, Carl Futch, who is a deputy sheriff in Glynn County, where he serves warrants. He said the gun had been old, was deteriorating and was unsafe to use when he acquired it. Jason’s attorney said the gun had been disposed of by the sheriff’s department and went to a gun wholesaler, who then sold the gun to Carl Futch.
Carl said he refurbished the gun and made it safe to use again. It had been used for hunting birds and shooting skeet. He said that when Jason turned 17, he asked for the gun so Carl gave it to him.
The prosecutor asked Carl if he had trained Jason in gun safety. Carl said that he had not. Carl testified he believed Jason was capable of using the gun safely and wisely.
Carl also testified that he had personally removed the doors from the apartment and had kept them in his possession until Jason’s attorney said they needed to be turned over to prosecutors.
The seventh witness of the day was Bernadette Davies, from the Georgia Bureau of Investigation, an expert in firearms examination. She testified she had tested the gun and examined the markings from the expended shotgun shell and concluded the gun was the same one that fired the shell recovered at Jason’s apartment.
She also said there were 27 pellets in each shell, and that when it was fired the muzzle of the gun was no more than 4 feet from the bedroom door, which was about 4 feet from the bathroom door.
Following her testimony, the judge asked the jury to leave, then advised the spectators that the next scheduled witness would be a medical examiner, who would have some graphic evidence to present that might be difficult for the family to watch. With that, the Weavers and all of the spectators who were there to support them left the courtroom, while only the four members of the Futch family remained behind.
The medical examiner’s testimony lasted about 30 minutes. The prosecutor said later that the testimony included graphic autopsy photos that showed Jason exactly what he had done to Mike. She said Jason cried throughout much of the testimony, and was still crying when the medical examiner left and the Weavers and the other spectators went back into the courtroom.
When the medical examiner finished, the state rested its case. The first thing defense attorney Hagler did was make a motion for a directed verdict. This is a routine motion made by defense attorneys after prosecutors rest their case.
In making the motion, the attorney tells the judge that in his opinion the state did not present sufficient evidence to prove the charges against the defendant, the case should not be submitted to the jury, and the attorney asks the judge to direct a verdict in favor of the defendant. Sometimes – but not often — the judge agrees that the evidence wasn’t sufficient and grants the motion, ending the proceedings. If he grants the motion, the defendant is off the hook.
However, as expected, in this case there was an abundance of evidence that this case should go to the jury, so the judge quickly denied Hagler’s motion.
The judge then said he needed to know if the defendant was going to testify. The judge read a series of questions to Jason, asking him if he knew that he couldn’t be forced to testify – it’s a defendant’s constitutional right not to have to testify against himself. The judge had to make sure that Jason was aware of his rights, that he didn’t have to testify if he didn’t want to.
With that, Hagler asked the judge for a 15-minute recess to talk about it with Jason and his family. When they emerged, the judge asked Hagler what Jason would do, and he said Jason would not testify. The judge asked Jason directly if that was his decision, and Jason said it was.
With that, the judge brought the jury back into the courtroom and ended the day’s proceedings, adjourning until 9:30 a.m. Friday.