7.Challenges for Cause, Juror Qualification, Storm Rescheduling, and Advance Screening
70 linesTHE COURT: Okay. I believe the first three we saw, 109, 169 and 171, we've already, I think, resolved.
MS. CLARKE: That's right.
MR. MELLIN: Correct.
THE COURT: 172?
MR. BRUCK: No motion.
MR. MELLIN: No motion.
THE COURT: Okay.
173?
MS. CLARKE: Same.
MR. MELLIN: Same.
MS. CLARKE: I don't think either party has a motion.
MR. MELLIN: No motion.
THE COURT: Okay. 184, I believe --
MS. CLARKE: Was agreed.
THE COURT: -- has a trip. We agreed.
185.
MR. MELLIN: No motion.
MS. CLARKE: No motion.
THE COURT: 186?
MR. BRUCK: Defense has a motion to excuse.
THE COURT: Go ahead.
MR. BRUCK: Your Honor, you'll recall this is a juror who wrote on her form that she believed the defendant to be guilty and she believed he should be sentenced to death. She said she was able to put those aside, and she gave textbook, you know, explanations of the civic duties of a juror and how people -- you know, in isolation she said some very heartwarming things that went to her being qualified.
But the Court has gone behind that and really needs to go behind this. This is a juror with more connections than most of the jurors we have seen. I probed about why she thought he was guilty. She gave detail that no other juror has given. The Lord & Taylor photographs. The Lord & Taylor photographs were made famous by the "60 Minutes" program with Rick Deloria pointing out and speaking very dramatically. This is what this juror has seen and it's what's stuck in her mind. I don't know if it was on "60 Minutes" or somewhere else. This video should never have been released, but it was. And she also refers to the defendant having a gun in Watertown. Well, he didn't have a gun, but that stuck in her mind. It's at a level of detail that most jurors have not given.
This is a juror who wrote on her form she has given hundreds of dollars, and seemed to want to back that -- walk that back a little bit, sort of -- it was a sense in which she was minimizing it when she was probed. This is a juror who really wants to be on this jury. She made that clear in a lot of ways.
She made a point, which was correct, that the anniversary Red Sox observance was the Sunday rather than Marathon Monday, but the Marathon Monday game to which she went renewing her tradition of 15 years was one in which the victim Marc Fucarile threw out the first pitch. We just found this in the newspaper. We didn't know it when we talked to her, but we'll make it an exhibit if need be. The Red Sox players used "Boston" jerseys rather than "Red Sox" which -- sort of symbolically marking the anniversary of Boston Strong and the attacks that day when she was there.
She's also of course -- and there was tremendous cheering at Fenway when they televised the winner of the marathon. It may not have been the actual Red Sox memorial ball game on the first anniversary, but there was a lot there, none of which she mentioned.
She also is -- I'm trying to remember what she said about Watertown or -- but the -- this is a juror who just -- there's just too much -- too much there, and I don't think any juror -- there have been very few jurors qualified who started out at guilty and death penalty, and she is one of them.
Oh, so, it was very interesting. In her form she said that other people had told her, "Why is he" -- isn't she the one who said, "What's the point of the guilt phase, why don't they just go to punishment?" and on questioning, if I am remembering this right, it turned out she had said that herself, whereas the form had attributed it to other people. You put all this together, and this is just not the sort of juror who's qualified.
MR. MELLIN: Your Honor, we disagree. She is very intelligent, thoughtful, honest with her responses. She discussed how when she first filled out the questionnaire she gave her responses on Question 77 about how she felt at the time, but she said at that time she was emotional about what had happened and that was the basis of why she was saying the things she said.
She was very clear that she would be able to set aside those feelings. She said that in the questionnaire on Question 77, as well as to the Court when the Court asked her and when I asked her if she would be able to follow the rules and set that aside and decide the case. If you'll recall, she's the one who said that she does this for a living. So she's able to do some amount of investigation in her work. She says she comes to an opinion at one point, but then she hears the evidence and then she changes her opinion based on the evidence. That's what she said she would be able to do in this case.
I completely disagree that any of her answers were textbook answers. I thought her answers were thoughtful and intelligent responses to the questions that were asked.
She said that she would be able to follow the process, that she would not automatically impose the death penalty, and that she would weigh the aggravators and mitigators. And she indicated that on her questionnaire as well at Questions 95 and 96.
MS. CONRAD: Your Honor, may I just say one thing about this just to follow up on something Mr. Bruck mentioned? And this really struck me. She first said, "Oh, yeah, people said, 'Why are they bothering with the trial?'" and then she admitted that she had said that herself before she got the summons. She said it was at the time.
She sort of kept insisting that it was at the time of the events that these discussions took place, despite the fact that in her answer to Question 75, which was, "What kinds of things did you say to others or did others say to you regarding your possible jury service in this case?" -- and that's where she wrote down, "Most commented on the fact that we should skip the trial, go right to sentencing" because of the assumed guilt of the various crimes that he's accused of.
And it took awhile for her to sort of acknowledge that. It seemed like she was, frankly, dissembling a little bit about that. And given that, given the fact that she said she had said things like that, it seems to me that it's very likely that that is her attitude as she sits here -- or sat here today. And I think that raises serious questions about her credibility.
THE COURT: I think she would be an ideal juror in another case but not this case. I base that principally on her -- I guess what Mr. Bruck was primarily addressing, was her traditions -- her personal traditions involved. She's very close to this race and the event, and I think that this is -- while she's otherwise obviously intelligent -- and I think the HR thing impresses me generally, I'll say. If we get any more -- I'll give you that hint, as someone who is a fact-finder, has some experience at it. But I think her relationship to this case is too close.
Number 189 there was an agreement on.
Number 190?
MS. CLARKE: I think the parties have agreed on 190, your Honor, on the presumption of innocence, unable to presume him innocent or to find him not guilty.
THE COURT: Okay.
191. I didn't know what you were up to.
MS. CLARKE: We just did not feel like he understood.
THE COURT: It was language?
MS. CLARKE: It was the -- understanding the writing, understanding the questions. I think both parties felt that way.
THE COURT: I couldn't tell whether he was having trouble understanding -- after all, as far as I understand, English is the first language of Jamaica. I just was wondering whether he was thinking about things. I agree that it was -- he took a long time to answer, but he wasn't translating, I don't think.
MS. CLARKE: I don't think it was the English language; there seemed to be a capacity-to-understand issue.
THE COURT: You know, he had the sort of obscure answer to Question 93, but I think I untangled it for him. Do you know where I think that came from? Was his civil trial. He had a negligence trial. And they had the, undoubtedly, contributory negligence instruction of greater than 50 percent and so on, but that may simply be an illustration of the point you're making.
MS. CLARKE: I think so.
THE COURT: All right. We'll excuse him.
MS. CLARKE: There's no motion on 195.
THE COURT: 195?
MS. CLARKE: And the parties have agreed on --
THE COURT: 198? I think you had substantive -- I agree there because I thought the hardship was a valid one too.
COURT CLERK: That was 198?
THE COURT: Yes, and that brings us to 199.
MS. CLARKE: And the parties have agreed on 199.
THE COURT: I'm not sure I agree. Tell me about it.
MS. CLARKE: This was the hard to unring a bell -- oh, I know what the Court did not cover, and since we agreed we did not cover, there were pretty substantial connections to the marathon bombing --
THE COURT: Yeah, that's true. We didn't cover that. All right. You don't have to go into detail. Okay.
So I have as having passed the bar here 172, 173, 183, 185, 195.
MS. CLARKE: That's correct.
MR. MELLIN: Correct.
THE COURT: Now, we're not -- we won't be here tomorrow. I'm advised that the Boston schools have already announced they're closed for Wednesday. I don't -- for these purposes I don't think we have to necessarily follow the Boston schools, which is an odd rule anyway in modern times, but there it is. We're more in control of this than -- because Jim is in contact with individual jurors every night anyway.
But just before I came down I did go to WBZ and check school closings, and I see there are other communities that are closing on Wednesday as well, so maybe the places where these folks would be coming from may be closing on Wednesday. So I think we'd better skip Wednesday as well.
MS. CLARKE: So we'll take the Tuesday group and move it to Thursday?
THE COURT: Yes. So what we're doing is trying to compress things. And actually, we'll probably spend a good part of Wednesday doing that, and do it a little bit more. We have -- this is for the next-up panel, right, which was -- all the dates are getting messed up. So this was for the Tuesday. 1/27 was for the Tuesday?
COURT STAFF: Yes.
THE COURT: Do you have multiple copies?
COURT STAFF: I printed two.
THE COURT: She printed two. We'll give you this. So these are what I would propose as excused from the next group.
MS. CLARKE: Can you give us the numbers?
THE COURT: Yeah, I'll give you the sheet. If you want, I'll read them off.
MS. CLARKE: Sure.
THE COURT: 201, 202, 203, 206, 209, 212, 213. We would then go to the next batch, and after a similar exercise of proposed excuses, take the net and move the next seven into the Tuesday position; in other words, replacing those seven, if that's all done, with seven who have already been scoured, okay? So that's what this sheet -- so to explain the sheet, the range of people who would be substituted in is from 217 to 232. In that group, actually, because we're 216, are people that I would similarly propose to be out. So the bottom group is net of these, if you're following this.
MS. CLARKE: So you've got seven you've kicked, in the Court's mind that we should look at, and then the next range becomes 216 to 232, and you have another seven, it looks like.
THE COURT: Another eight proposed for that range to be out and a net of -- well, I don't know if there are people left in the pool.
MS. CLARKE: I see that your law clerk is rubbing her head.
(Laughter.)
THE COURT: This is, you know -- we're not good with numbers; that's why we became lawyers, you know?
This is just to replace into the tomorrow -- for convenience we'll call it the "Tuesday pool," but it's going to be Thursday by now. There may still be other people left in this pool. We went up through -- maybe you know the answer to this. This is seven plus eight is 15. There might be one or two left there, okay? If there are, they'll stay in the Wednesday-Friday position and will be backfilled by another 18 that we'll do by the same process and hope to have enough of that so you can review it and see where you -- we're trying for the excuses to be -- the ones that have been pretty established by our common law now as not debatable or doesn't need further explication.
So there are some people who look like they might have a financial hardship or a child-care issue that we'll have to have them explain. It's not so clear, for example. We're trying to do it so that -- because, frankly, I don't want debates about whether it's right or wrong, and if it's close, we'll include them. But the ones we think are really clear I'm proposing out to try to move everybody forward, okay?
MS. CLARKE: And when could we get back to you?
THE COURT: Well, as soon as possible. I guess -- I don't know. I mean, I think, from our point of view, we expect to be operational on Wednesday, you know, up in chambers and so on and so forth. I expect you probably do too, perhaps maybe as well tomorrow.
So I don't know. The Court's going to be closed tomorrow. I'll still be looking at email. I'll be working from home. I supposed everybody else will.
MS. CLARKE: So we ought to be able to get together by email.
THE COURT: Sure.
MS. CLARKE: And then send it to Jim?
THE COURT: Sure.
MS. CONRAD: Judge, I'm sorry. There's something that I wanted to raise. There were two things I was going to raise today. I know it's late and everyone wants to beat out the storm, and none of it -- well, one of them has to do with a juror we've already seen that we've found some additional social media on.
THE COURT: We'll deal with that later.