2.Individual Voir Dire — Hardship, Background, Impartiality, and Capital Punishment (Part 1)
583 linesCOURT CLERK: Juror 109.
(Juror 109 enters courtroom.)
JAMES MCALEAR: Juror 109.
COURT CLERK: Ma'am, over here. Have a seat, if you would.
Make sure you speak into the mic so everybody can hear you. Thanks.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Welcome back. When we left last time, I had asked people to avoid any discussion about the case with anybody, except logistical to tell people they have to be here and also to avoid any media coverage of the trial or the underlying events or anything. Have you been able to do that?
JUROR: As much as possible.
THE COURT: Tell us about your work.
JUROR: I work for a school district. I work with special needs children on the autism spectrum. I feel it would be very difficult for me to take the time away from them because they need the routine, and for me to be gone for three to four months would be very hard on them.
THE COURT: What arrangements might be made for that, by the school system?
JUROR: They would have a sub come in, but not a steady one; it could change daily.
THE COURT: Someone qualified in the same area.
JUROR: I don't know that.
THE COURT: Have you had any discussions with the administration?
JUROR: I have not.
MS. CLARKE: Your Honor.
MR. MELLIN: That's fine.
THE COURT: All right. I think that's fair enough.
JAMES MCALEAR: Right this way.
(The juror is excused.)
COURT CLERK: Juror 169.
(Juror 169 enters courtroom.)
MR. BRUCK: This will be one of the Rule 140.
THE COURT: Yes. I have it. Thank you.
JAMES MCALEAR: Juror 169.
COURT CLERK: Sir, over here, if you would, please. Speak into the mic so everyone can hear you.
THE COURT: Good morning. Since you were last here, have you been able to abide by my instructions to avoid any conversations --
JUROR: Yup.
THE COURT: -- and try to avoid any exposure to media reports about the case?
JUROR: Yup.
THE COURT: Okay. Let me ask you, you had a concern about the schedule in the case and how long it would take in terms of its impact on your child care responsibilities, taking care of the children. Can you tell us a little bit more about this?
JUROR: I have a three-month-old and two-and-a-half-year-old. I'm responsible for taking them to day care and picking them up. My wife works in town, so it's not possible for her to do that.
THE COURT: Where do you work in terms of --
JUROR: In Boxborough, Massachusetts.
THE COURT: Okay. So what time do you drop the kids off?
JUROR: 7:30, 8:00.
THE COURT: Okay. And then pickup?
JUROR: Pickup, 5:30 I'm supposed to be there. 5:30, I'm supposed to be there at 5:30.
THE COURT: Sometimes are you late?
JUROR: Sometimes I'm later.
THE COURT: Okay. Well, apparently you have a fair hike from Boxborough.
JUROR: Yeah.
THE COURT: Where does your wife work?
JUROR: MGH.
THE COURT: She's a nurse practitioner.
JUROR: Yes.
THE COURT: Is she in a particular unit or department?
JUROR: Cardiac.
THE COURT: Let's -- jumping ahead a little, maybe, but people who were injured in the bombing events, some were taken to Mass. General for treatment.
JUROR: Uh-huh.
THE COURT: Was she involved at all in that --
JUROR: No.
THE COURT: -- in any way? I mean, that would include, for example, backfilling for somebody else?
JUROR: No. The only -- she knew some doctors who were there at the race. Other than that, no.
THE COURT: Was she on duty that day --
JUROR: Yes.
THE COURT: -- at the hospital?
JUROR: Yup.
THE COURT: But her work wasn't interrupted or affected --
JUROR: No.
THE COURT: -- in any way?
JUROR: No. Well, there was a delay in getting home, but other than that, nothing, no.
THE COURT: All right. So just a little bit about your work. What do you do?
JUROR: I'm an engineer. Voice networking engineer, so voice over IP.
THE COURT: In terms of social media, you said rarely.
JUROR: Maybe once or twice a day.
THE COURT: That's what interested me. You define that rarely as once a day.
JUROR: I'll hop on for five or ten minutes. Some people are on all day.
THE COURT: Just checking.
JUROR: Yeah. See which one of my friends -- it's usually pretty much just a bunch of reposted junk that you don't really want to see, but...
THE COURT: We asked about, you know, whether they had relatives or friends in various employment categories.
JUROR: Yup.
THE COURT: For law enforcement, you have a friend who is with the US Marshals?
JUROR: No. He did an internship with the US Marshals. He was attempting to go that route.
THE COURT: Okay. And somebody else -- it says "friend with police."
JUROR: Yup.
THE COURT: What police department?
JUROR: Reading. Reading Police Department. He works -- yeah, Reading Police Department. Something to do with the FBI but I'm not sure other than that.
THE COURT: How close are you to him?
JUROR: My wife's best friend's husband. So they went to high school together, they live in the same town, they live like a mile away.
THE COURT: Can we cut the audio for a minute.
MR. DOREAU: Audio's cut.
(Discussion at sidebar and out of the hearing of the public:)
THE COURT: That's the questionnaire --
JUROR: Yes.
THE COURT: -- you filled out?
JUROR: Yup.
[REDACTED]
THE COURT: Okay. We can go back on.
MR. DOREAU: Okay. Audio and video on.
(In open court:)
THE COURT: I'd like you to look at Page 20, Question 77. In that question we asked whether as a result of things you had seen or read in the newspaper or from any other source, whether you had formed an opinion about whether the defendant was guilty or not, and what penalty might be imposed if he were guilty. Let me focus you on A and B which were the guilty or not guilty. You answered yes to part A and no to part B.
JUROR: Yes.
THE COURT: Can you just tell us what you were thinking when you --
JUROR: In regards to parts A and B?
THE COURT: Yeah.
JUROR: That's my opinion, that, yes, he is guilty and no, he's not guilty.
THE COURT: It's based on news reports.
JUROR: Yeah, pretty much. Yeah, inundated with that for quite some time, so yeah.
THE COURT: Yeah. In our criminal justice system, every defendant is presumed to be innocent if charged with a crime unless and until the government proves at trial that he is guilty by the evidence beyond a reasonable doubt. To the extent that jurors may have prior ideas about those questions, we ask them to concentrate on the evidence and not what other information they may have and make a judgment that requires the government to satisfy its burden by holding the government to that burden and requiring that the evidence be such that it convinces the jury beyond a reasonable doubt.
JUROR: Uh-huh.
THE COURT: A defendant never has any burden to prove that he is not guilty or explain things away. It's always the government's burden. Do you understand those principles?
JUROR: Yup. Yup.
THE COURT: Given that you've said you have an opinion as of this time, would you be able to set that aside at trial and pay attention to the evidence presented and decide the case only on the evidence presented?
JUROR: Honestly, I'm inclined to say no.
THE COURT: Why do you think that?
JUROR: The media coverage was so vast, there was so much evidence, basically, you know, it's tough to overcome that, in my opinion. And every time you think of people who lost their lives, who got hurt, so that's pretty much...
THE COURT: Tell us about your answer to C and D.
JUROR: Yeah. See, there's -- that's basically -- I mean, given that each situation, there's different circumstances, you know, I didn't feel comfortable saying yes to those questions.
THE COURT: Okay. Let me ask you --
JUROR: Different extenuating circumstances I'm not familiar with.
THE COURT: Let me ask you to turn to Page 24. Beginning at 88 we asked you a series of questions about your attitude toward the death penalty --
JUROR: Uh-huh.
THE COURT: You were asked in that question whether you had any general views, and you said "no" or "none."
JUROR: Uh-huh.
THE COURT: The next question, we asked you to circle from 1 to 10, 1 being strongly opposed, 10 being strongly in favor, where you might be, and you circled 7.
JUROR: Uh-huh.
THE COURT: And if you go to the next question, 90, we ask you to indicate which of the following statements most describe your feelings about the death penalty.
JUROR: Uh-huh.
THE COURT: You chose E. It said you were in favor of the death penalty but could vote for life imprisonment without the possibility of release if you thought that was called for by the case. Does that represent your view?
JUROR: Yes. Yeah. As -- as a generality, yes, absolutely. Depending on the case.
THE COURT: Depending on the facts presented?
JUROR: Exactly.
THE COURT: You heard what I said earlier about the penalty phase --
JUROR: Yes.
THE COURT: -- when those kind of issues will be presented to the jury?
MS. CLARKE: Your Honor. Is that right?
MR. MELLIN: That's fine.
THE COURT: No follow-up? Okay.
COURT CLERK: Right this way, sir.
(The juror is excused.)
COURT CLERK: Juror No. 171.
(Juror No. 171 enters the courtroom.)
JAMES MCALEAR: Juror No. 171.
COURT CLERK: Ma'am, over here. Make sure you speak into the mic so everybody can hear you.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Were you able to abide by my instructions that I gave you last time to avoid any discussion of the substance of the case and to try to avoid any media reports about it?
JUROR: Yes, I did.
THE COURT: Thank you.
I just want to follow up on some of the answers you gave in the questionnaire. That's the questionnaire if you want to look at it.
First one I wanted to ask about is Page 5, Question 10, where you --
JUROR: Okay.
THE COURT: -- you indicated that you -- were asked about the impact of the extended trial on people and so on. And you indicated you have some job training to start soon. Could you just tell us about that?
JUROR: Yes, my job training was supposed to start this morning, and I received a call and I had to cancel with my supervisor.
THE COURT: So tell me about the training, what kind of training or courses.
JUROR: I am a PACU nurse, and I was supposed to receive training so I can be aboard to help surgeon and anesthesia with ECT treatment of depress and mental health people.
THE COURT: What is ECT? Electric convulsive therapy?
JUROR: Yup.
THE COURT: Okay. You work at the Lemuel Shattuck?
JUROR: Yes, I do.
THE COURT: And are you in a particular ward or...
JUROR: I work in the post-anesthesia care unit.
THE COURT: Okay. And would this training allow you to move to a different unit?
JUROR: No. I will stay on my unit, but I will be more qualified to assist anesthesia with that kind of treatment.
THE COURT: Okay. How frequently does the opportunity to get the training come up?
JUROR: Excuse me?
THE COURT: How frequently does the opportunity to get the training come up?
JUROR: As far as I know this week, it was going on this week, and I was the first, first -- one of two people that was going to go to Beth Israel hospital to receive it today.
THE COURT: I guess my question is when is the next chance you'll have? Do you know?
JUROR: I would have to work that out with my supervisor.
THE COURT: Okay. Let me just ask you -- you don't have to read the answer. Will you look at Question 11 on Page 6. And I just want to know if that would cause you trouble if you're sitting for a couple of hours at a time.
JUROR: Sitting?
THE COURT: If you were sitting in the jury for a couple of hours at a time, would No. 11 --
JUROR: As long as -- I, you know, I think it would be disturbing to get up in the middle of something, but at work I do work that out. You know, I can manage my time, but I cannot manage my time.
THE COURT: I guess what I'm wondering is how frequent is frequent? Every hour? Every two hours?
JUROR: In the morning, maybe every hour.
THE COURT: Yeah. Okay. All right. Let me ask you to turn to Page 20, Question 77 near the top of the page.
JUROR: Uh-huh.
THE COURT: That is a multipart question. We asked whether you, when you filled out the questionnaire whether you had formed an opinion based on the news media or other sources as to whether the defendant is guilty or not. And then the second part of the question is whether he should receive the death penalty or not. As to the first part, you indicated that you had formed an opinion about whether he was guilty.
JUROR: Uh-huh.
THE COURT: In our criminal justice system, any defendant charged with a crime is presumed to be innocent unless and until the government proves that he's guilty at the trial by the evidence that's presented. The government has the burden, in other words, of proving people guilty of the charged offenses. And jurors are instructed that they are to regard the person as not guilty unless and until the government has proved otherwise beyond a reasonable doubt.
If you were a juror in this case, would you be able to fulfill that obligation?
JUROR: I don't know.
THE COURT: You don't know? Because of what you think already?
JUROR: (Juror nods.)
THE COURT: Could you tell us a little --
JUROR: Because I had been around -- my family had to shut off the TV because I get very emotional when things come up on TV. And when I saw the people that were victim of that thing and the little boy and that young lady and everything, and I will be very, very emotional, and my daughters would have to turn off the TV every time they were in the room and I'm watching it.
THE COURT: Okay. Thank you very much.
JAMES MCALEAR: Right this way, ma'am.
COURT CLERK: Just leave that right there.
(The juror is excused.)
COURT CLERK: Juror No. 172.
(Juror 172 enters courtroom.)
JAMES MCALEAR: Juror No. 172.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
JUROR: Thanks.
COURT CLERK: Make sure you speak into the mic so everybody can hear you. Okay?
JUROR: Okay.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to abide by my instructions to avoid any discussion about the case or about the events?
JUROR: I've tried. It comes up on the radio and the news, so I turn the channel.
THE COURT: That's what we asked. Thank you. Tell us about your employment.
JUROR: I work at the Broad Institute. I'm in computers. I run the high-performance computing environment.
THE COURT: Broad Institute is a joint venture between MIT and Harvard?
JUROR: Yup. Yes.
THE COURT: It's in the life sciences.
JUROR: Yup. Yeah. Joint research.
THE COURT: MIT obviously has some place in the course of events, including in the loss of one of its police officers. The fact that you're employed at MIT, would that have an effect on your ability to be an impartial juror?
JUROR: I don't believe so, no.
THE COURT: Let me just ask about social media, which we're always concerned about. You say you use Facebook about once a month?
JUROR: Yes.
THE COURT: And for what purposes?
JUROR: Pictures, mostly. I put pictures of my dog up.
THE COURT: Okay. Your former husband is an attorney, it says, personal injury.
JUROR: He was at one point. I think he does insurance now. I think he does insurance now.
THE COURT: Oh. Okay. But his law practice was on the civil side, anyway, not criminal?
JUROR: Yes. Yeah.
THE COURT: Let me ask you to turn to Page 20. In Question 77 we asked people whether, based on what they had seen or heard from various sources, whether they had formed an opinion that the defendant was guilty or not.
JUROR: Uh-huh.
THE COURT: Then if so, what the penalty might be. We gave some boxes for you to select. You indicated in part A that you had formed an opinion about whether he was guilty or not, right?
JUROR: Uh-huh.
THE COURT: The others -- as to the penalty, you said you were unsure. And then further down, whether you would be able to set aside any opinions and so on, you said "maybe." So let me just ask you about those --
JUROR: Uh-huh.
THE COURT: -- answers.
You probably understand that in our criminal justice system every defendant is presumed to be innocent of any charges made against him unless and until the government proves he is guilty at the trial by the evidence and convinces the jury of the defendant's guilt beyond a reasonable doubt. So jurors are told that if the government fails to satisfy its burden of proving guilt beyond a reasonable doubt, that it's the obligation of the jurors to find the defendant not guilty.
If you were a juror in this case, would you be able to faithfully apply those principles of the presumption of innocence, proof beyond a reasonable doubt by the evidence at trial, or would you find difficulty in doing that because of your opinion formed on the basis of the -- , what you've seen and heard?
JUROR: Truthfully, I probably could.
THE COURT: Could what?
JUROR: Could put aside any previously formed opinions. Not that I'm interested in serving on the jury for as long as I think this will take, but truth be told, I probably could.
THE COURT: The second part of the question was about whether the death penalty might be imposed if he were convicted of a capital crime, and you indicated "unsure" there.
Let me ask you to turn to Page 23. We've asked a series of questions about the death penalty and what you might think about it. It begins with page -- with Question 88 on Page 23. And we asked a general question, first whether you had any views on the death penalty in question, and you wrote "N/A," which I guess means no.
JUROR: Yeah, I don't.
THE COURT: And then in the next question, we ask you to circle on a scale from 1 to 10 where your views might be in terms of opposed or in favor of the death penalty. And you circled 7?
JUROR: Yup.
THE COURT: Which is sort of on the favor side but not strongly in favor?
JUROR: Yes.
THE COURT: Is that a fair assessment of your view?
JUROR: Yup.
THE COURT: Then if you turn to the next question on Page 24, 90, we ask you to circle which of the statements came closest to your view, and you selected D, "I am not for or against the death penalty. I could vote to impose it or I could vote for life imprisonment without the possibility of release whichever I believe was called for by the facts and the law on the case."
JUROR: Uh-huh.
THE COURT: Does that fairly represent your view on the matter?
JUROR: Yup.
THE COURT: So until you heard the facts and law on the case -- you've heard me describe this morning the penalty phase where that decision will be made?
JUROR: Yes.
THE COURT: -- you are prepared to consider either possibility based on your assessment of that evidence?
JUROR: Yeah.
THE COURT: And then, the last couple of questions, 25 and 26, Questions 95 and 96, the bottom of -- Question 95 where you said if you found the defendant guilty and decided the death penalty was appropriate, you could conscientiously vote for that?
JUROR: Yes.
THE COURT: Similarly on the next page, if you found him guilty and decided life in prison would be the appropriate punishment, you could conscientiously vote for that?
JUROR: Yes.
THE COURT: Those fairly represent your views?
JUROR: Uh-huh.
THE COURT: Follow-up?
MR. MELLIN: Thank you, your Honor.
Good morning, ma'am. I'm Steve Mellin, one of the prosecutors on the case. Just to follow up on what Judge O'Toole was asking you about concerning the media coverage that you had seen, and you said you could probably set that aside.
JUROR: Uh-huh.
MR. MELLIN: Right?
And does that mean that as you sit here now, you're saying you would be able to set that aside, and you would listen to the evidence in this case, and if you were on the jury, that you would decide the case based on what you heard in court as opposed to anything you may have read outside the courtroom?
JUROR: Yes.
MR. MELLIN: Any concerns you have about being able to do that?
JUROR: No.
MR. MELLIN: Okay. And then the judge also asked you about your answers to Questions 95 and 96 about whether you could conscientiously vote for the death penalty or for life imprisonment. Remember those?
JUROR: Uh-huh.
MR. MELLIN: My question is: If you got to that stage hypothetically in a case where you were serving as a juror and you decided that the aggravating factors outweighed the mitigating factors to sufficiently justify a penalty of the death penalty, would you be able to vote to sentence someone to death?
JUROR: Yes.
MR. MELLIN: Okay. Thanks.
JUROR: Uh-huh.
MS. CLARKE: Good morning. My name is Judy Clarke. I'm one of the attorneys for Mr. Tsarnaev. And I had just a couple of questions I wanted to follow up on what the prosecutor was just asking you, and the judge did too, in 77, Question 77, when you said "maybe." Could you elaborate on that a little bit more, because you've been a little bit stronger today, but maybe setting aside your opinion.
JUROR: Which one is 77?
MS. CLARKE: I'm sorry, Page 20.
JUROR: And you're referencing this last bit, "if you answered yes to any of these questions?"
MS. CLARKE: Yes.
JUROR: Because I've never been put in this situation before. I think if you get anyone who sits here and says wholeheartedly they'd be able to do one thing or another, they're lying, I'm sorry.
MS. CLARKE: I guess I was just sort of trying to explore what you were thinking when you filled out the questionnaire with the "maybe," and today you've gotten a little bit more strong in your sort of thinking that you could set aside your previous opinion.
JUROR: I think I could. But if you want me to be a hundred percent truthful, I don't think you're going to get anyone in here being wholeheartedly able to tell you what they would be thinking or able to do when put in a situation like this because I can't say any juror has ever been put in a situation like this. I think it would be shocking if you got someone a second time around doing this.
MS. CLARKE: What do you mean?
JUROR: Being on a capital case in Massachusetts as a juror.
MS. CLARKE: It would be shocking to think what?
JUROR: That you get a person doing this a second time around. So you're getting a pool of individuals who have never done this before, so if they can honestly tell you a hundred percent one way or another, I would find that shocking.
MS. CLARKE: I see. So did the "maybe" refer to the opinion regarding guilt, or did the "maybe" refer to the opinion unsure regarding the death penalty?
JUROR: Guilt.
MS. CLARKE: To guilt.
In Question 74, when you were asked about what you thought about the summons, and you said, "I found out it was in this case, it is a more daunting task to consider." Can you tell us what you were thinking?
JUROR: Because it's the biggest case I've ever been around. The death penalty is a big deal. I don't think any individual should take that lightly, even giving -- even given the circumstances.
MS. CLARKE: That's what you were thinking with "daunting"?
JUROR: Yup, that's what I meant.
MS. CLARKE: Okay. And several people apparently responded to you when you said "I got a summons to come on jury duty," and No. 75, "you should be honest, you should try to get out of it, what if you're sequestered." Very natural questions.
JUROR: Uh-huh.
MS. CLARKE: What did you respond to those comments? You don't have to use the actual words.
JUROR: Yeah. I think I was probably more concerned about the sequestered bit. But people have their opinions of jury duty. I was more worried about being sequestered.
MS. CLARKE: So you didn't really have any responses to people when they talked to you?
JUROR: No. Everyone told me ways of trying to get out of it. But they were all kind of ridiculous.
MS. CLARKE: The judge asked you about your connection to MIT and Harvard through your very impressive work, it sounds like.
JUROR: Thanks.
MS. CLARKE: Is where you work very close to where Officer Collier was killed?
JUROR: I honestly don't know. I've only worked there for five months.
MS. CLARKE: So you weren't working there at the time?
JUROR: No.
MS. CLARKE: And are there any colleagues or co-workers who were there at the time?
JUROR: One co-worker actually told me he knew one of the victims, but I told him not to talk to me about that.
MS. CLARKE: This is since?
JUROR: This is since, yeah.
MS. CLARKE: And he didn't say anything more than that?
JUROR: Uh-huh.
MS. CLARKE: How did it come up that you had been summonsed?
JUROR: I had mentioned to my employer that I had to come back today.
MS. CLARKE: And this was the employer that you were talking about --
JUROR: Uh-huh.
MS. CLARKE: -- who knew one of the victims?
JUROR: Yup.
MS. CLARKE: You also -- one of the victims was a Boston University graduate.
JUROR: Uh-huh.
MS. CLARKE: Did you work at Boston University at the time of --
JUROR: Yes.
MS. CLARKE: -- the bombing?
JUROR: Yup.
MS. CLARKE: Were you involved or know about any of the efforts to, you know, raise money or --
JUROR: No. I mean, there was certainly BU-wide emails put out, but I didn't attend any.
MS. CLARKE: Were there any discussions among you and your colleagues, co-workers about the efforts at BU?
JUROR: No.
MS. CLARKE: I take it you listen to Kiss 108?
JUROR: Uh-huh.
MS. CLARKE: Yes?
JUROR: Yup.
MS. CLARKE: The court reporter doesn't like it when we don't answer.
JUROR: Oh, sorry.
MS. CLARKE: And did you hear any comments on "Matty in the Morning" --
JUROR: Yeah.
MS. CLARKE: -- about this case?
JUROR: I'm sure most of the population might have that day. Yes.
MS. CLARKE: And can you recall what you heard?
JUROR: They were being ridiculous about Billy's son being called.
MS. CLARKE: Did you hear that whole story?
JUROR: I did, because that was the same day I was initially called.
MS. CLARKE: Right.
JUROR: So I was driving in --
MS. CLARKE: You hadn't gotten --
JUROR: -- when they were talking about --
MS. CLARKE: -- the strong admonition by the judge yet?
JUROR: Yeah.
MS. CLARKE: So can you recall the story?
JUROR: Yeah. They were trying to come up with a way to -- I think they were trying to come up with a way to distract people to possibly do harm. It was a joke, but...
MS. CLARKE: In the courtroom?
JUROR: In the courtroom.
MS. CLARKE: In the big assembly room?
JUROR: Yup.
MS. CLARKE: And what did you think about that at the time?
JUROR: I thought they were being goofballs.
MS. CLARKE: You answered the question regarding pictures, if I can find it, No. 87.
JUROR: What question? I'm sorry.
MS. CLARKE: No. 87, Page 23.
JUROR: Yup.
MS. CLARKE: Again, "maybe." Can you tell us what you meant by that?
JUROR: I've seen graphic images only on TV, so I don't know what it would feel like to see graphic images that I know are real.
MS. CLARKE: And did you observe any of that when the bombing occurred on TV or in the news?
JUROR: No. I generally try to not see graphic, real-life imagines. I find them to be inappropriate.
MS. CLARKE: Do you think it would be a distraction or be an emotional issue for you? I'm just trying to --
JUROR: I would hope so. If I was unbearably cold to something like that, I think that would be strange for me.
MS. CLARKE: Now, that makes absolute sense. I guess we're just trying to figure out whether this is a case for you or another case that would not have these graphic images. I absolutely get what you're saying about that.
JUROR: And truthfully, I don't know how I will react to it.
MS. CLARKE: Okay. In Question 93, in weighing your answer about whether a life sentence is more severe than a death sentence --
JUROR: Yup.
MS. CLARKE: -- you indicated, "there are too many factors to have an opinion." And it really sort of focused on the conditions of confinement.
JUROR: Uh-huh.
MS. CLARKE: Why did you go there?
JUROR: Because in some circumstances, I believe prisoners might have a better life in prison than some individuals on this planet. So life imprisonment could be good, subjectively.
MS. CLARKE: It could be good or it could be horrible?
JUROR: Uh-huh. Depending on those perks I mentioned.
MS. CLARKE: Okay. Could I have just one moment?
(Discussion off the record.)
MS. CLARKE: I guess I probably ought to ask a couple of questions, because it looks like sort of the thinking about the death penalty is sort of new for you. Is that right?
JUROR: Uh-huh. Yup.
MS. CLARKE: And could you tell us, if you were in the Legislature, as a matter of policy, would you vote to have a death penalty or not have a death penalty?
MR. MELLIN: Object to the question, your Honor.
THE COURT: Yeah. That's not what she's being asked to do here, so I don't think we have to worry about that.
MS. CLARKE: I guess I'm trying to explore the evolving thinking, your Honor. Perhaps the Court --
THE COURT: I think we have a good understanding. I think we could go on forever on this. I want to get where there's really an issue. I'm satisfied with what I've heard --
MS. CLARKE: Well, then, thank you very much.
JUROR: Thank you.
THE COURT: -- on that subject.
COURT CLERK: Right this way.
(The juror is excused.)
THE COURT: Before we bring out the next one, this next juror is like one, I guess, maybe the second or -- second woman we saw, where a date that's relevant to hardship has come and gone. Are we're going to see more of those, I think. I don't know if we can project forward and try to head off that issue for people, because we're getting to the reading of the -- I certainly am getting to the reading of the question as sometime after a date when something was supposed to happen, like the juror's training. This juror has a similar -- we're after the date, if you look at Page 5, Question 10. We'll ask her about it. But I'd like to see if we can do some kind of advanced screening for maybe just this question for dates to see whether we can help people out of a situation where by default they've already fallen into the problem.
MS. CLARKE: Right.
THE COURT: So that's more an observation than anything else.
COURT CLERK: Juror No. 173.
JAMES MCALEAR: Juror 173.
(Juror 173 enters the courtroom.)
COURT CLERK: Ma'am, over here, have a seat.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to live up to my instructions to avoid discussing the case --
JUROR: Yes.
THE COURT: -- and try to avoid any media exposure about the case?
JUROR: Yes.
THE COURT: Okay. That's the questionnaire --
JUROR: Yup.
THE COURT: -- you filled out when you were last here. And I want to start by -- mostly we're going to follow up on your answers to questions there.
JUROR: Yup.
THE COURT: I want to start with question 10 --
JUROR: Okay.
THE COURT: -- on Page 5 where you were describing the schedule difficulties because you were expecting to start a class, teaching a class --
JUROR: Right.
THE COURT: -- in the mornings --
JUROR: Uh-huh.
THE COURT: -- last week, I guess.
JUROR: Yes.
THE COURT: Did you?
JUROR: Did start last week. I did start the class last week.
THE COURT: Are we -- so are you committed to that now for the rest of the semester or can arrangements --
JUROR: I could -- well, as I think I tried to explain, I think with technology today, meeting would be optional. It's an elective for graduate students, so I have 17ish in the class. And -- but, you know, it's part of what students pay for. So I would anticipate that we could move the day if the schedule allotted, and/or go online or hopefully the students are in second year, would be okay with not taking my class and finding something else this semester. But it is an elective, so it's not a required course.
THE COURT: We -- what's going on?
MS. CLARKE: Weather.
COURT CLERK: Sounds like mice.
JUROR: It's starting to snow.
THE COURT: One thought we had when we set the schedule for the case was it would be Monday through Thursday --
JUROR: Right.
THE COURT: -- which would leave Friday open --
JUROR: Right.
THE COURT: -- for people. This would be an example where Friday --
JUROR: Right.
THE COURT: Friday might be a good place for it to be moved. Have you explored that at all.
JUROR: I have looked at the schedule. I think -- I haven't -- it was one of my questions today is if -- I didn't know at what point I should follow up with the dean, you know, as to -- I didn't want to, quote, unquote, "stress anybody out."
We're starting with a large pool. But I did think that was a possibility, and their courses -- because they are graduate students, most of them also earn public health and medicine, so there a lot of evening courses, so there could be that possibility, but, you know, I --
THE COURT: Could you step a little bit back? I wonder if that's the speakers, the noise you're hearing.
JUROR: You said make sure talk into it.
THE COURT: That's all right. I'm sorry if I interrupted.
JUROR: No. Yeah. So I have not explored, because I didn't know at what point I should really start any -- I didn't want to make any prejudgments or where this would fall based on the original jury pool that was brought forth.
THE COURT: When does the course finish?
JUROR: End of April.
THE COURT: So it's weekly every --
JUROR: Every Tuesday, one chunk of time.
THE COURT: Okay. So let's move on to some other questions. Why don't you tell us a little bit about what you do --
JUROR: Okay.
THE COURT: -- besides teaching the class?
JUROR: Right. The majority of my job is actually research. I do large government-funded trials on physical activity and nutrition and health outcomes mostly in underserved populations. So right now I'm leading a big trial across Massachusetts putting in physical activity programming, looking at cognitive health and academic achievements in these populations. I'm just finishing another large funded grant in the Boston area looking at urban kids and vitamin D and cardiometabolic disease risk.
So my opportunity -- my studies are out in the community. And I do monthly publish-or-perish grant writing route for my job. So, you know, I write grants to support my salary. And I teach the one course because I love it, not necessarily because I have to. Yeah.
THE COURT: Okay. And you've been doing that, it looks like, at Tufts for about ten years?
JUROR: Correct.
THE COURT: Just a little basic information about your husband. You say he's in finance. Could you tell us a little more what he does?
JUROR: Oh, geez. I should have quizzed him. Yeah. He actually works for a firm out of Miami, and he works about five minutes from home. But he commutes down to Miami maybe, you know, once a month for a few days to meet there. So he sort of does private equity work. He had been in real estate. He's gone from working at large firms like State Street to small start-ups.
THE COURT: Okay. You have a personal website that you use for your work?
JUROR: Yes, unfortunately.
THE COURT: But for other use, nonprofessional, you use Twitter a little bit and Facebook a little? Is that right?
JUROR: Rarely Facebook. Twitter, you know, when there's something about physical activity and health, I usually tweet about it, yes. But I would say it's about once a month.
THE COURT: And when you use Twitter, its generally usually professionally related?
JUROR: Completely professional, yeah.
THE COURT: I'd like you to turn to Page 20, question 77.
JUROR: Uh-huh. Yup.
THE COURT: We ask there whether you had formed any opinion --
JUROR: Uh-huh.
THE COURT: -- whether the defendant was --
JUROR: Right.
THE COURT: -- guilty or not or what punishment might be imposed if he were based on media accounts --
JUROR: Right.
THE COURT: -- so on.
You checked "unsure" --
JUROR: Right.
THE COURT: -- which is one of the available options on each of those.
With respect to, let's focus on A and B, guilty or not guilty.
JUROR: Right. Uh-huh.
THE COURT: Could you tell us what you're thinking when you picked "unsure."
JUROR: I think that -- I think it was a little unfair of me to be biased one way or another based on media. You know, I think if my life were hanging on the line and I had to pick one, I could probably go one way or the other. But most people, based on my professional development, that I typically -- depending on what the charge is, I'd have to qualify my answer. So there wasn't a space necessarily to qualify the "unsure" thing, but based on what we know, I couldn't say convincingly one way or the other that he's definitely guilty of all those things unless I had all evidence in front of me, so I didn't think it was right to go one way or the other.
THE COURT: So I'm sure you understand this, but in our criminal justice system every defendant accused of a crime is presumed to be innocent --
JUROR: Right.
THE COURT: -- unless and until the government proves he's guilty --
JUROR: Right.
THE COURT: -- at trial and convinces the jury beyond a reasonable doubt that the person is guilty.
JUROR: Right.
THE COURT: If the government fails to do that, if its evidence is not sufficient to convince people beyond a reasonable doubt -- "people" meaning the jury -- their obligation is to find the guilt not guilty.
JUROR: Right.
THE COURT: Is that -- do you have any reservations about your ability to fairly hear the evidence and to abide by those principles?
JUROR: No.
THE COURT: I was just looking back. You had some jury service?
JUROR: Yes.
THE COURT: But it was a civil case --
JUROR: It was a civil case.
THE COURT: -- not a criminal case. The next parts of -- the second half of question 77 was about the death penalty.
JUROR: Yeah.
THE COURT: But we asked further about that --
JUROR: Yeah.
THE COURT: -- later on. That's at Page 23.
JUROR: Yup.
THE COURT: Question 88 asks for your general view --
JUROR: Right.
THE COURT: -- about the death penalty. And have you a fairly extended answer. But could it be fairly characterized that you're undecided as a general proposition?
JUROR: Yes.
THE COURT: In the next question we asked if you could perhaps place yourself on a scale --
JUROR: Uh-huh.
THE COURT: From strongly opposed to strongly favor, and you selected 4, which is slightly to the opposed side of the middle?
JUROR: Right.
THE COURT: Again, this is a fairly --
JUROR: Right.
THE COURT: You're a researcher. You understand this is a fairly crude instrument --
JUROR: Yes, right, right, right.
THE COURT: -- that we're using.
But is that a fair? Would you stick with that today if you had to do it again?
JUROR: Yeah, I would. I'd be in that ambiguous area.
THE COURT: Then in the next page, question 90, we asked you to find the formulation in words that seemed to best express your attitude towards the death penalty, and you selected D, not for or against --
JUROR: Right.
THE COURT: -- could vote to oppose it, or could vote for life imprisonment without the possibility of release, whichever you thought was called for by the facts and the law of the case?
JUROR: Right, right.
THE COURT: So this morning you heard me talk about the penalty phase --
JUROR: Right.
THE COURT: -- where we'll hear things that might aggravate the penalty, and other things that might mitigate the penalty. That's more or less what would be the facts and the law --
JUROR: Right.
THE COURT: -- for that penalty phase.
Are you confident that you'd be prepared to vote in either direction based on your assessment of what you hear in the penalty phase?
JUROR: Yeah. I would have to be, based on law and facts. I'd do my best.
THE COURT: Well, not on what you'd have to be. Would you be able to be?
JUROR: Yes, yes.
THE COURT: In other words, is this your -- now, obviously we're predicting how you'll react --
JUROR: Right.
THE COURT: -- on unpredictable data.
JUROR: Right, right.
THE COURT: But the question is, do you -- I guess it's a gauge of what -- how you feel about the death penalty in part.
JUROR: Yeah.
THE COURT: You are perhaps open to it, and perhaps open to the alternative of life imprisonment and can't say more specifically until you hear the evidence?
JUROR: I would have to hear the evidence. And I think that, you know, I sort of fall on the fence, whether that's good or bed. I think that I wouldn't like to say that I would have to be -- you know, say yes, someone that needs to have the death penalty, but I think I could be unbiased going into it, and do the right thing based on the facts and the laws of the nation.
THE COURT: At the bottom of Page 25, Question 95, we asked: "If you found the defendant guilty and decided that the death penalty was the appropriate punishment" --
JUROR: Right.
THE COURT: -- "could you conscientiously vote for it?" And you said you're not sure.
JUROR: Yeah. I think it weighed on me. And walking into the courtroom that morning, having thought about this extensively, I don't know how my conscientious (sic) would -- what it would be like to do that. I have no concept of that. I have killed spiders, and that's about it. So I'm hoping that it could be a decision that I could live with based on all the evidence that I thought I could live with. So I think I'm unsure because I won't know that until I would be at that place in life.
THE COURT: Okay. Finally, Question 98. You've run the marathon yourself a couple of times?
JUROR: Yes. Right.
THE COURT: So does that have any effect on your ability to be an impartial juror?
JUROR: I mean, in a way yes and no. I mean, I know what it's like. I wasn't impacted. I've been involved extraneously with the Marathon. I'm an athlete. But I know what it's like to be in a big crowd.
I think anybody can put themselves there. I've never -- I've rarely stood on the sidelines and watched. I've participated. So I don't -- you know, if I were sitting on the other side, I don't know if that really impacts how I feel. I mean, most of us in the Boston area have touched it in some way, yeah.
THE COURT: Well, I guess the question is: Do you think it would have a skewing effect of any kind on your ability to be a fair juror?
JUROR: No.
THE COURT: Thank you.
Follow up?
MR. MELLIN: I'm Steve Mellin. I'm one of the prosecutors.
JUROR: Yeah.
MR. MELLIN: Just to follow up a little bit on your feelings about the death penalty. You say you're pretty much undecided about it?
JUROR: Yeah.
MR. MELLIN: You mentioned in the questionnaire in answer to Question 88, you said, "Today I think the evidence/science has greatly improved."
JUROR: Yeah.
MR. MELLIN: What did you mean by that?
JUROR: Well, I mean this, again, was my shaking, nervous response.
I think that there's -- I don't follow these things closely. I'm one of these people that I don't know a lot about it. But I know what DNA evidence is, like people have been convicted and then, you know, given the death penalty and found out they might have been innocent after the fact.
I think we have better technology these days to sort of air on the positive or negative. And I'm not sure what the evidence is in the case that would sort of fall on the technological sphere, meaning, you know, maybe video cameras and cell phone use. But I do think that we've come a long way in the past hundred years probably with the weight of the evidence and what people have as evidence in front of them to judge with.
MR. MELLIN: Okay. And just turning to Question 95 and 96. In 96 you said "yes," but in 95 you said you're not sure.
JUROR: Yup. Yup. 95 and 96.
MR. MELLIN: Why did you give a definitive answer to 96, which was a "yes," but then it asked if you could conscientiously vote for the death penalty, you said "I'm not sure."
JUROR: Okay. So 95 was unsure. Could I conscientiously do that? I'm not sure.
MR. MELLIN: It's essentially the same question, but one says the death penalty and one says life imprisonment?
JUROR: I think just as a living being, it's probably easier to vote for life in prison then committing someone to death, I think innately. That's not to say, yeah -- but I think I allude to at some point for some people, if they were in that situation, they might prefer, you know, one over the other personally in terms of being in prison for life, in this case a young individual, versus, you know, being put to death. So, I mean, I'm just sort of going off that, yeah.
MR. MELLIN: Okay. And then let me ask you one final question --
JUROR: Yeah.
MR. MELLIN: -- which is, putting aside kind of the theoretical position you're in, which is you're undecided but you think it could be in some cases and not in others, when you get to the practical --
JUROR: Right.
MR. MELLIN: -- when you get to the reality of the being on a jury --
JUROR: Uh-huh.
MR. MELLIN: -- and being somebody who if you believe that the aggravating evidence --
JUROR: Yeah.
MR. MELLIN: -- sufficiently outweighed the mitigating evidence --
JUROR: Yup.
MR. MELLIN: -- that the sentence of death was justified --
JUROR: Yup.
MR. MELLIN: -- would you be able to vote to sentence someone to death?
JUROR: I think based on facts, if I had everything in front of me, I could do the right thing, yes.
I think that it's -- I'm definitely one of those people, like I want all the facts in front of me, and it has to be -- you know, whatever the rules are, the mitigating versus aggravating, and if it tips one way, I would have to do that. Yeah. I would do that, yeah.
MR. MELLIN: Okay. All right. Thank you.
MR. BRUCK: Good morning.
JUROR: Good morning.
MR. BRUCK: My name is David Bruck, and I'm one of Janar Tsarnaev's lawyers. And I don't have a great deal to ask you but I have a couple of things to ask you.
JUROR: Right.
MR. BRUCK: I'm never close enough to the mic, apparently.
JUROR: I've been too close.
MR. BRUCK: So on average, we're doing good. I want to follow up on what you just told Mr. Mellin --
JUROR: Yeah, yeah, yeah.
MR. BRUCK: -- and maybe make sure --
JUROR: Yeah, yeah.
MR. BRUCK: -- we're on the same wavelength as far as how the system works, talking about the death penalty.
The judge told you that the system is you weigh the aggravating and you weigh the mitigating. But it's not a mathematical formula or anything like that.
JUROR: Uh-huh.
MR. BRUCK: In fact, in the end the jury is asked whether the aggravating evidence sufficiently outweighs the mitigating --
JUROR: Uh-huh.
MR. BRUCK: -- in order to justify the death penalty, rather than --
JUROR: Right.
MR. BRUCK: Are you with me?
JUROR: Yup.
MR. BRUCK: And Judge O'Toole told you that the jury is told, and the law is that you are never required to impose the death penalty.
JUROR: Right.
MR. BRUCK: So in the end, it's really a moral, subjective decision.
JUROR: Right, right.
MR. BRUCK: And that puts a lot of weight on people.
JUROR: Right.
MR. BRUCK: Knowing that this is the Boston Marathon bombing case, I understand you haven't heard the evidence --
JUROR: Right.
MR. BRUCK: -- but you live in Boston, do you feel that you lean one way or the other as far as the death penalty, assuming that there was proof beyond a reasonable doubt?
JUROR: I think inherently I probably would say -- I mean, based on my sliding scale, I'm more on the end of like would hate -- not "hate." I would like to say that I am sort of -- you know, I probably prefer the life imprisonment route, but given the laws, I will do the right thing. You know, I'd be able to base my evidence -- I think -- it's so hard until you know that you've been presented with all the evidence in trial, and doing that, and I think, yeah, I can understand it's not math, and I can understand the jury are gonna have a visceral feeling on the weight of the evidence. And from what I understand, it's not like we can take notes, you know -- can we? I sat on a jury before.
THE COURT: Probably.
JUROR: Okay. Good. Just because I'd be weighing it heavily.
MR. BRUCK: Right.
JUROR: But, yeah, I would say that, you know -- yeah, I'm more in that 3, 4 range where I prefer not to have that option, but I could probably go that way if the evidence was there.
MR. BRUCK: If the evidence justified it to you?
JUROR: Right. And I guess sort of how I thought about this the last couple of weeks before I knew I was going to be called back in, you could almost say that I don't want the death penalty, and would have to make that decision, but if someone said, "If that was your daughter at the finish line, how would you feel," you know, it changes things. So, you know -- and I think you wouldn't know that until you sat in the room
MR. BRUCK: Well, and that gets to my last question --
JUROR: Yes.
MR. BRUCK: -- and I hope this isn't too personal. I've noticed on your form you have two children?
JUROR: Right.
MR. BRUCK: You heard from Judge O'Toole that one of the victims in this case was eight years old.
JUROR: Right, right. So that's where --
MR. BRUCK: I have to finish the question.
JUROR: I have to be realistic and I can be very honest. My mother-in-law just said, "just say you're against the death penalty." But I'm really, you know -- I said, but if they said, you know, your daughter who's 8 at the finish line watching you run, you know, that changes things.
So I think that I would have to get immersed in the case, which I haven't been. The day of I was out with my kids in Harvard. The week afterwards, we were in Florida with our kids, so I couldn't watch anything, and I'm not -- I work a lot. So, you know, my spare time reading is not a newspaper. So I knew what was going on, but I displaced myself, you know.
So it's a hard thing, yeah. But I think I -- I'm in a profession where I weigh evidence a lot. So I would just want to do the right thing.
MR. BRUCK: I think that's all. Let me just be sure. It is. Thank you.
THE COURT: Thanks very much.
JUROR: Thanks.
COURT CLERK: Just leave that right here.
(The juror was excused.)