UPDATE (11:49 a.m.) - The sentencing phase in the capital murder case for Kimberly Cargill is now in the hands of the jury.
Cargill was found guilty in the 2010 murder of her son's baby sitter, 39-year-old Cherry Walker.
UPDATE (May 31, 2012) - Judge Jack Skeen Jr. opened what could be the final day in the capital murder case against Kimberly Cargill by reading the court's charge to the jury. Cargill was previously found guilty of capital murder in the 2010 death of her son's baby sitter, 39-year-old Cherry Walker.
The court's charge works like a flow-chart of "yes or no" questions that allow the jury to reach a decision on whether Cargill will be sentenced to life in prison without parole or the death penalty.
Judge Skeen reminded jurors that the defendant faces no burden of proof at any point in the trial process. He also said the fact that Cargill decided not to testify in the punishment phase should not be held against her.
Special Issue Number 1 before the jury asks whether they believe Cargill is likely to commit further dangerous acts if she continues to live. Special Issue Number 2, which is answered only if Number 1 is answered in the affirmative, asks whether there is any mitigating evidence which would support taking the death penalty off the table.
Smith County District Attorney Matt Bingham went first in closing arguments. He began by thanking the jury for their service.
"The reason we're here is because Kim Cargill killed Cherry Walker and dumped and burned her body," Bingham said. "Cherry had a life. And this defendant took that from her."
Bingham wondered aloud what Walker's last moments alive were like.
"I think everyone knows that Cherry Walker knew she was being killed," Bingham said.
Bingham said he believes that in response to Special Issue Number One, the defense will argue that there could be a treatment for Cargill's personality disorders at some point in the future.
"In 20 years, that we know of, she has hurt everyone in her personal circle," Bingham said. "I don't think the defense can say that there's not a continued threat."
Bingham said he believes the defense will argue that Cargill didn't choose to commit the murder in response to Special Issue Number 2, relying on testimony saying that her prescription drug use combined with her personality disorders to cause the crime.
"Doctor Gripon told you it wasn't relevant," Bingham said. "None of that matters."
Bingham then talked about the field of psychoanalysis and how it relates to Cargill's disorders.
"There is no borderline personality gene," Bingham said. "But they are telling you she was born this way. Just like a lot of people who have sat in that chair."
"Did she choose it? No," Bingham said. "But she did choose her behavior. It's not a mitigation. It's an explanation."
Bingham recalled testimony saying that Cargill is satisfied with the way she is and unmotivated to commit to treatment or any effort to change.
"She has done so much to hurt so many people," Bingham said.
Bingham recalled the mountain of testimony and evidence relating to her physical abuse of sons and ex-husbands. He reminded the jury that she repeatedly told police in those cases that she was merely defending herself.
"Do you believe that?" Bingham asked the jury. "She chose to take the stand and lie to you."
"Do you, after listening to the evidence, understand how she could do that to her children?" Bingham said.
Bingham recounted the long list of other people who had testified about Cargill's attempts to hurt them.
"She's gotten away with every bit of it," Bingham said. "Every bit of it."
Bingham noted that the defense's own expert noted a significant pattern of anger and violence in Cargill's past. He went on to claim that there's no psychological diagnosis in existence that includes a characteristic of violence and that Cargill does not have.
"This is why a psychopath is so dangerous," Bingham said. "They show emotion but it's superficial and short-lived."
Bingham noted that Cargill's condition has worsened, saying she was diagnosed with her personality disorders twenty years ago and moved from mild assaults to capital murder.
"[All the experts] have told you that Kim Cargill knows the difference between right and wrong," Bingham said. He added that statement prevents any genetic pre-disposition toward personality disorders from being mitigating evidence as it relates to Special Issue Number 2.
"Doctor Gripon said you can't hold a person responsible for the development of their personality," Bingham said. "But he said her actions as an adult were her own decision."
"The disorders do not drive her to do it," Bingham said. "She just chooses to."
Defense Attorney Brett Harrison was next in closing arguments.
"We've gotten past Kimberly Cargill being held responsible for her actions," Harrison said. "She is guilty of capital murder."
Harrison reminded the jury that both options they have in the punishment phase mean that Cargill will die in prison.
"This is a decision that will stay with you forever," Harrison said.
Harrison said the defense never ran or hid from the information in this case. He admitted that she is violent and has hurt numerous friends and family. He said they provided evidence of that when they didn't have to.
Harrison talked about the jailers from the Smith County Jail who testified against Cargill. He told jurors it was important to realize that none of them testified to any acts of violence on Cargill's part during her two years in the jail.
"The state is thorough, as they should be," Harrison said. "If there had been an incident, you would have heard about it."
Harrison conceded that Cargill "runs her mouth a lot," and added that he doesn't believe that's a reason to execute her.
Harrison said there's no disputing the fact that Cargill has personality disorders, and cited evidence that Cargill's disorders mean she will be better off in the highly regimented prison system.
Harrison argued that the jury should not look at Cargill's twenty-year history of violence, instead opting to look at her two-year history in the Smith County Jail to determine what she'll be like if she lives.
Harrison then turned his attention to Special Issue Number 2.
"Mitigation is a difficult concept," Harrison said. "It's not an excuse."
Harrison said the question jurors should consider is whether having a disorder that fuels one's conduct lessens one's moral blame worthiness in cases like this.
"All of the doctors agree. She didn't choose to be this way," Harrison said. "It doesn't excuse her conduct but it does help to explain it."
Harrison re-iterated that he believes Cargill's personality disorder is sufficient evidence for taking the death penalty off the table.
Defense attorney Jeff Haas made the next closing argument.
"I want to emphasize something," Haas said. "Justice has been served. Justice doesn't demand a death sentence."
Haas talked about Dr. Tim Proctor's testimony that the court process seemed to have opened Cargill's eyes to a certain extent, saying that the jury should consider the fact that Cargill would be in a structured, rigid environment for the rest of her life if she gets the life sentence.
"There was a lot of testimony about drugs and illnesses," Haas said. "And the defense never tried to use that as an excuse."
Haas recounted testimony that Cargill suffers from Crohn's disease and additional testimony that she had been treated with prednisone, which can allegedly cause problems in people with personality disorders.
Haas contrasted the image of Cargill as a mother who cared enough to make a George Washington costume for one of her children for a school project with the image of Cargill as a serial abuser of her children and husbands. He said it was tough to reconcile the two.
"She loved her kids the best that she could love them. She tried to take care of them," Haas said. "But obviously there were times where she did horrible things to them."
Haas described being on death rose as being a celebrity and being recognized by pen pals and fans. He said there would be no glory in a life sentence.
Haas said he disagreed with Harrison regarding Dr. Edward Gripon's testimony. He believes there is hope for a shot or a pill that "re-wires" Cargill and cures her of her personality disorders.
I frankly believe that the evidence in front of you isn't sufficient to give her the death penalty," Haas said.
"There was evidence that she told her mother 'I hope you die a miserable old woman,'" Haas said. "And that's exactly what's going to happen to Kim Cargill.
Smith County Assistant District Attorney April Sykes made the final closing argument.
Sykes said she couldn't disagree more with the defense's arguments.
"This is not Kim Cargill's day. Kim Cargill's day was June 18, 2010," Sykes said. "This is Cherry Walker's day."
Sykes ridiculed all the talk of Cargill's personality disorders, asking the jury if they really expected a killer and a child abuser to have a normal personality.
"Why does she do any of the things she does?" Sykes said. "Because she's mean. Because she wants to."
"I'm not giving any more thought to the fact that a killer's personality could lessen their personal blame-worthiness," Sykes said. "If it does we're in trouble."
Sykes wondered aloud about whether Cargill's own childhood was as bad as the ones she dealt to her own children. She called out the defense for claiming they weren't making excuses and then doing it anyway.
Sykes asked the jury to go back to the raw facts of the case and consider the way Cargill dumped and burned Walker's "still warm" body.
"I'm not going to show you those photos of her burned body again," Sykes said. "I think that's disrespectful to Cherry Walker."
UPDATE (12:15 p.m.) - The state has rested on its rebuttal and has no more evidence to present.
The court has recessed until 8:30 a.m. Thursday for closing arguments.
TYLER (KYTX) - Defense attorneys for Kimberly Cargill called one last witness in the sentencing phase of Cargill's capital murder trial Wednesday. Cargill was previously convicted of killing 39-year-old Cherry Walker in June of 2010.
Jerdene Boyd was the final witness for the defense. She testified to having been Cargill's cell mate in the Smith County jail. Boyd said she never had any issues while living in close quarters with Cargill.
Following an ex-parte hearing in which both sides agreed upon a stipulation of evidence covering the prescription drugs Cargill was on, defense attorney Jeff Haas read the stipulation to the jury. It re-established that Cargill was taking Prednisone at the time of the crime.
The defense rested following the reading of the stipulation of evidence.
Dr. Tim Proctor took the stand as a rebuttal witness for the state. Proctor is a forensic psychologist.
Proctor testified that he is board certified, through the American Board of Professional Psychology, and said that the defense's forensic psychologist, Dr. Antoinette McGarrahan, is not.
Smith County District Attorney Matt Bingham asked Proctor about his experience interviewing Cargill.
"I spent about three hours interviewing her and another hour conducting testing," Proctor said.
Proctor said McGarrahan shared her own raw data with him from when she tested Cargill. He said he had no reason to suspect that she had done anything wrong in her testing.
"I gave her the Minnesota Multiphasic Personality Inventory II RF," Proctor said. "She believes that people are out to get her, mean her harm...she has some physical complaints relating to her gastrointestinal health. Those were the main findings."
Bingham asked how the testing went in the general sense.
"She has a difficult time not providing large amounts of details, some of which are relevant and some of which are not," Proctor said. "I said 'you have trouble getting along with people' and she said 'how come you can say that so shortly and I can't?'"
Bingham asked about Proctor's diagnosis and whether he agrees with McGarrahan's diagnosis. He said he agrees that Cargill has Anti-Social Personality Disorder but believes she may also have Narcissistic Personality disorder."
"Can she be diagnosed as a psychopath?" Bingham said.
"I certainly see a lot of [the traits of a psychopath]," Proctor said. He added that psychopathy is not a defined diagnosis in the psychology field.
Proctor said that personality disorders are much more difficult to treat than mental illnesses. He said Cargill's disorders are the most difficult to treat of all personality disorders.
Bingham asked whether psychotherapy could help Cargill. Proctor said psychotherapy requires motivation from the subject and that Cargill did not exhibit the kind of motivation necessary to have a chance of success.
"The prognosis for people with these types of disorder tends to be poor," Proctor said. "Getting them to listen to things that are hard to hear can be difficult."
"To some extent, I think going through this trial and hearing the things people have said about her has been eye-opening to Kim Cargill," Proctor said. He added that he did not believe that would aid in a true recovery on Cargill's part.
"Are there any medicines that can cause personality disorders?" Bingham said.
"Medications are not thought to be the cause of personality disorders," Proctor said.
"What about physical problems?" Bingham said.
"Physical problems are not thought to cause personality disorders either," Bingham said.
"Do you have any evidence that Kimberly Cargill has ever been psychotic?" Bingham said.
"No," Proctor said. "A psychosis involves being out of touch with reality and maybe hearing voices...but I have not seen any evidence of that."
Bingham asked whether Proctor had reviewed earlier testimony and evidence from Dr. Sandra Craig. Proctor said he had, and that he agreed with her conclusions and said they were largely still true two decades later, which indicated the chronic nature of Cargill's problems.
"Do these personality disorders prevent people from knowing right from wrong?" Bingham said.
"No they do not," Proctor said.
Bingham next called Dr. Edward Gripon to the stand. Gripon is a psychiatrist who practices in Beaumont.
Gripon said he interviewed Cargill in Monday and agreed with the personality disorder diagnoses previously presented in court. He also agreed that treatment for Cargill's disorders would not be likely to be successful.
"Medications can treat certain symptoms, but they certainly don't treat the underlying condition," Gripon said.
Bingham asked if Gripon was familiar with the drugs Celexa, Clonipine and Prednisone. He said he was.
Gripon disagreed with earlier testimony that clonipine is debilitating, saying that it is only a problem when abused.
Bingham asked about adrenal gland function as it relates to the administration of prednisone. Gripon said he does not believe prednisone causes adrenal problems when administered correctly and tapered in dosage. He said he did not believe that Cargill was influenced by steroids to commit the murder.
Proctor said he did not believe Celexa played a part in the murder, adding that Cargill's own admission was that she went off Celexa a month before the murder.
Bingham asked Gripon about Clonipine. Gripon said Cargill also went off of Clonipine a month before the murder and did not report any discontinuation symptoms. He said he did not believe Clonipine had any relevance in the murder.
Gripon said he believes that Cargill made a bad choice of her own volition and nothing more. He also said he does not believe Cargill's alleged afflictions of Lupus and Crohn's disease had anything to do with the murder.
On cross examination defense attorney Jeff Haas said the defense is not trying to blame Lupus, Crohn's disease or any of the drugs Cargill was on.
He asked whether drug withdrawal can cause increased anger and aggression and Gripon said it could.
Haas asked whether Lupus could cause mental problems and Gripon said it can cause affective disorders, but those are primarily confined to types of depression.
Bingham noted that the defense's own expert noted a significant pattern of anger and violence in Cargill's past. He went on to claim that there's no psychological diagnosis in existence that includes a characteristic of violence and that Cargill does not have.
"This is why a psychopath is so dangerous," Bingham said. "They show emotion but it's superficial and short-lived."
Bingham noted that Cargill's condition has worsened, saying she was diagnosed with her personality disorders twenty years ago and moved from mild assaults to capital murder.
"[All the experts] have told you that Kim Cargill knows the difference between right and wrong," Bingham said. He added that statement prevents any genetic pre-disposition toward personality disorders from being mitigating evidence as it relates to Special Issue Number 2.
"Doctor Gripon said you can't hold a person responsible for the development of their personality," Bingham said. "But he said her actions as an adult were her own decision."
Sykes said she had yet to understand how any evidence presented could mitigate Cargill's actions. She recounted testimony that Cargill was unpredictable, and that her family never knew when she would snap.
She recalled one of Cargill's sons ring asked what it felt like when she choked him and responding "it felt like she didn't love me."
"If you hear nothing I say but this, just remember that Kim Cargill was, is and always will be a future danger," Sykes said.
She cited testimony from one of the defense's witness that Cargill will continue to have interpersonal problems in the state prison system.
Sykes then listed off every alleged criminal act that has been testified to in Cargill's past. She said Cargill always makes a choice about when to do bad things.
"You know what else she chooses?" Sykes said. "When to be nice."
Sykes read from Cargill's testimony in which she repeatedly admitted to making "disgusting choices" the night she killed Cherry Walker. Sykes said it was the only thing on which she's ever agreed with Cargill in her life.
"She chose the victim," Sykes said. "She chose when to end Cherry Walker's life and she chose to take that stand and lie to y'all about it."
"Evil exists in this world," Sykes said. "Do you want to see it? Just look into those eyes right there."
