Going it alone, death-penalty defendant confronts would-be jurors

Tiffany Moss, who is representing herself during a death-penalty trial in Gwinnett County. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

Tiffany Moss, who is representing herself during a death-penalty trial in Gwinnett County. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

It was the kind of question no one could imagine.

“So if in this case, and this is an if, you were picked for the jury and you did find the defendant — me — guilty of … starving a child, my own child, and burning her body, would you be able to consider life with parole as an option or would death be the necessary action taken? ” Tiffany Moss asked.

The 35-year-old Gwinnett County woman posed it last week to a Transportation Security Administration officer who’s a potential juror for her death-penalty trial. Because Moss is acting as her own attorney, she found herself asking the unthinkable.

Taken aback, and clearly uncomfortable, the TSA officer — Juror No. 52 — said death would be his “first priority.”

Jury selection, which consumed all of last week, will wrap up soon in this extremely rare instance in which a capital defendant is going it alone. Despite the recommendations of almost everyone, Moss has refused to be represented by two experienced state capital defenders who were assigned her case. (Instead, they have been appointed "standby counsel" and sit behind Moss in the courtroom gallery ready to help if she asks for it.)

Emani Moss, who was 10 years old when she died of starvation. (Family photo.)

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Atlanta attorney Ken Driggs, who has represented capital defendants at trial and on appeal, spent time in court last week to see how Moss was doing. He left unimpressed.

Because Moss is not raising any objections, he said, she cannot appeal possible errors during her trial if she’s convicted and sentenced to death.

“When you represent yourself you can’t complain about your mistakes,” Driggs said. “You are stuck with the consequences of your mistakes or lack of knowledge.”

The jurors are also asked what they think about Moss’s decision to exercise her constitutional right to represent herself.

04/15/2019  -- Lawrenceville, Georgia -- Attorney Brad Gardner (left) speaks with Tiffany Moss (center) during jury selection for her trial in front of Gwinnett County Superior Court Chief Judge George Hutchinson III at the Gwinnett County Courthouse in Lawrenceville, Monday, April 15, 2019. Attorney Gardner was assigned to represent Tiffany Moss, in addition to attorney Emily Gilbert, but Moss has decided to waive both attorneys and represent herself. This trial is considering the death penalty. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

Credit: Alyssa Pointer

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Credit: Alyssa Pointer

“I guess I feel that it’s kind of shocking,” Juror No. 56 said, looking over to Moss sitting alone by herself at the defense table.

“It might not be the most logical decision,” said Juror No. 17, a Gwinnett librarian.

“I would just say I hope she’s been given some guidance,” said Juror No. 41, a retired elementary school teacher. “That does bother me a little (but) you said it was her choice. You have to respect that.”

Others said they just wanted to know why Moss had made such a decision. (They were never told why, although Moss has said she’s putting her faith in God’s hands.)

Most jurors said they would not hold Moss’s self-representation against her or the state.

Juror No. 63, a school support technician, was an exception. “I think I would have a little bias,” she said, referring to Moss.

During jury selection, Superior Court Judge George Hutchinson has read the sobering indictment to panels of prospective jurors. This includes the murder-by-starvation allegation, various child cruelty charges and her alleged attempt to conceal the crime.

Then, one juror at a time sits alone in the jury box, first to answer questions posed by the judge. District Attorney Danny Porter or assistant DA Lisa Jones are next.

Gwinnett County District Attorney Danny Porter, who is seeking the death penalty against Tiffany Moss, a 35-year-old woman accused of starving her 10-year-old stepdaughter to death. (ALYSSA POINTER/ALYSSA.POINTER@AJC.COM)

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When it’s Moss’s turn, she most often smiles and tells Hutchinson, “No questions, your honor.” On very few occasions, however, she poses the question about the starvation and burning of her stepchild.

When she does speak, Moss is polite and pleasant, sometimes bubbling up with nervous laughter. Some jurors return her smile, while others cast a curious glace at the woman they’d just been told is accused of starving and burning her stepchild.

On two occasions, Moss won challenges to keep potential jurors in the final selection pool. This occurred after prosecutors sought to disqualify them because they said they would be reluctant to vote for a death sentence.

One of them, Juror No. 30, a veterinary nurse, told Porter she had signed petitions opposing capital punishment. “I’m personally not a fan of it,” she said.

But when Porter asked her if she could consider all three sentencing options — life in prison with the possibility of parole, life without parole or the death penalty — the juror said, “I would like to think I could.”

Tiffany Moss as she asks a question to a potential juror on Monday in her death-penalty trial. (Alyssa Pointer/The Atlanta Journal-Constitution)

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As Porter continued to question her, the woman admitted to having bad experiences with law enforcement. One was being handcuffed by police as a teenager after squirting water from a car into the face of a taxi driver. Another included a friend she believed was wrongly convicted of a sexual assault.

After probing that, Porter finally asked Juror No. 30 if, given her views and life experiences, she could truly vote for the death penalty.

“I’ve been against it for so long,” the woman said, equivocating.

Porter later moved to have Juror No. 30 disqualified.

But Moss reminded Hutchinson the woman had said she could consider all three sentencing options, including death. Hutchinson granted Moss a small victory and kept the woman in the jury pool.

At the same time, Moss has stumbled a number of times. On one occasion, she failed to try and disqualify a juror who’d said she could not vote to sentence a person convicted of killing a child to life in prison with the possibility of parole.

Gwinnett County Superior Court judge George Hutchinson III is overseeing the case against death-penalty defendant Tiffany Moss. HYOSUB SHIN / HSHIN@AJC.COM

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Anther occasion involved Juror No. 138, who said she’d once supported capital punishment but now opposed it.

Experienced defense lawyers would have questioned such a juror to try and get her to admit that, in especially egregious cases, she could still vote for death. Such a concession could make her a qualified juror and one favored by the defense.

When Hutchinson asked Moss if she had any questions for this juror, Moss appeared to sense this possibility. She called for her standby lawyers, Brad Gardner and Emily Gilbert, and they spoke to her at length at the defense table. As they gave instructions, Moss repeatedly nodded her head in agreement.

After Gardner and Gilbert returned to their seats, Hutchinson asked Moss if she had anything to say. “No questions, your honor,” Moss said with a smile.