6.Cause Challenges, Juror Qualification, Proposed Hardship Excusals, and Weather-Adjusted Scheduling

MR. CHAKRAVARTY: Your Honor, the government has a motion. This was -- I think maybe a first amongst the jurors -- the prospective jurors that we've seen in that it was not a particular response to any of the material questions in the questionnaire that gives pause to the government, but it's how she responded. She clearly had some anxiety. She was open and candid about that in the paper. When she sat down she was visibly extremely anxious. I think even the Court reminded her -- caused her to relax a little bit. But then as the questioning went on, time and time again she manifested both by delays and pauses in how she answered some of the questions, the anxiety that she was open with us that she had.

In this case where a lot of the evidence is going to be very disturbing and for a person who, you know, in her words, she doesn't like to think about those things -- another thing she said was it makes her nervous to even think about the things that happened to her brother in the context of -- it's somebody who's avoided that kind of assessment of some of the hideous issues that anybody will ever have to do strikes me that this is not the case that we should have this young woman, who might grow to have the confidence to be able to deliberate with a jury with at least 12 people in another case maybe down the line.

At this stage in her life the government doesn't feel confident that she would be able to do so in a constructive way that regardless of how she comes out and regardless of her feelings on the death penalty or guilt or innocence, it's just not constructive to the process that we're here for. So that's the reason for the cause.

MR. WEINREB: So, your Honor, the government moves to strike 215 as being prevented or substantially impaired from imposing a death sentence. The government's entitled to jurors who can, in fact, impose a sentence of death if the juror determines that it's the appropriate sentence, and there are numerous cases which hold that a -- if a juror is unable to unequivocally state that he or she can do so, that it is appropriate to strike them for cause.

This juror could not even once unequivocally state that she could do so. And, in fact, even in situations where a juror states unequivocally that he or she can do so but then seems to back away from that or contradict it, even that, the cases have held, is sufficient grounds for excluding them. Uttecht and many other cases from the courts of appeals from all of the circuits have held that.

So this juror under the, you know, well-settled prevailing standard is substantially impaired in her ability to impose the death penalty. When asked if she could actually do it having concluded that it was the appropriate sentence, the most she could ever muster is, "I'm not sure. I don't know. I want to say yes," but she could never actually say yes.

And, in fact, the very last time she was asked the question, which was by Mr. Bruck, I'm sure the Court recalls she hesitated for a very long time and really seemed to be searching her soul as to whether she could do it. And at the end she said, "I want to say yes but I don't know" or "I'm not sure."

And that's not a fair juror for the government. That's not a juror who can necessarily follow the law which is that she would be able to actually impose the death sentence. And although I understand, as the Court said earlier, that it puts jurors in a difficult spot to be asked to predict what they could or could not do in an unfamiliar situation, that's the whole nature of this process. Being on a jury where you have to impose a sentence of death on somebody is a possibility that is going to be unfamiliar to every juror. And so we have to be able to rely on their prediction of their own ability to do so or not. And this juror simply was not sure; she could not say yes.

MR. WEINREB: Well, yes. But I would add the caveat that since the government can't appeal under those circumstances, it's logical that you are never going to see a circumstance saying that the Court erred by failing to grant a government's strike. But I do think that the -- although the Court is absolutely correct about that, that the cases -- if you -- the cases from Witherspoon and Witt on make it clear that the government is entitled -- and that's the word that the courts use, including the Supreme Court -- entitled to jurors who are not prevented or substantially impaired from imposing the death penalty.

So although a court will never be found to have erred by granting a defense strike, because it's impossible for the government to appeal that, I think that it is clear that it is not -- it is contrary to the law to seat a juror who is, in fact, unable to state equivocally that they can give consideration to it. Not actually do it in this particular case, but that if they determine that it was the appropriate sentence, actually impose a death sentence.

MR. WEINREB: I don't know if this would be a welcome decision or not, but having driven in this morning and having gone in the same traffic, the two lots that are on the street when you get off the exit from the Pike for Seaport Boulevard -- you pass two lots on your way to Northern Avenue. That -- it was right there at that intersection that you have to sit for 20 minutes before you could take that left turn.

If people park in those lots, they could shave 20 minutes off their commute because then they just walk to the lot around the corner to the courthouse.