2.Individual Voir Dire — Initial Juror Examinations (Part 1)
626 linesCOURT CLERK: Juror No. 204.
COURT CLERK: Juror 204.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: I appreciate your patience.
JUROR: You're welcome.
THE COURT: I appreciate you being here on a lousy day. Actually, the day is okay. It's the travel that's lousy.
We're going to ask you some questions. That's the questionnaire that you filled out. We'll ask you to follow along with us on some of the questions.
Have you been able, since you were last here, to follow my instructions and avoid my discussion of the case or any exposure to media accounts?
JUROR: Yes.
THE COURT: We have a little personal family information. I see you have a brother who's in the Army at Fort Hood, Texas.
JUROR: Yes.
THE COURT: How long has he been in the Army?
JUROR: Three years. He just signed on for another three years, too.
THE COURT: Does he have a specialty?
JUROR: He is a sergeant. He doesn't talk a lot about it with me. He's in the 238 Cav at West Fort Hood in Texas. He's at Fort Hood.
THE COURT: Does he have any particular --
JUROR: I'm not --
THE COURT: -- assignment or anything that you're familiar with?
JUROR: Not that I know of. He talks about it with my mom but not to me.
THE COURT: That's what I was going to ask. Do you text or tweet?
JUROR: If I talk to him, it's usually about, like, movies and stuff. I don't really talk to him about what he does.
THE COURT: Okay. And you're a medical secretary in a medical office?
JUROR: Yes, a urology office.
THE COURT: We asked people about the use of social media.
JUROR: I put -- sorry, a lot.
THE COURT: Yeah, you did. Just tell us what you use.
JUROR: Well, I have a friend in Brazil, so I use Facebook just for communication.
THE COURT: A friend where?
JUROR: In Brazil, that I met at a concert. So I use Facebook, Twitter, but I don't go on it a lot. I usually just follow a comedian, I think I put, too, on Twitter. I just have accounts. I don't -- Facebook, I sometimes go on but just to post pictures. That's it.
THE COURT: And Twitter, you do -- you just follow somebody?
JUROR: Yeah, a comedian. I follow a couple people, but I only really follow the comedian.
THE COURT: Actually, I see now in 32, your brother actually served in Afghanistan?
JUROR: Yes. I want to say it was a year or two ago. He was in Afghanistan for -- I want to says six months to a year.
THE COURT: You think he saw combat but aren't sure?
JUROR: I believe he did.
THE COURT: Okay.
JUROR: I know he -- I know he got an award for -- a bomb went off, and he went and helped people. He wasn't near -- he was a football field away. That's just what I heard from my mom. He doesn't talk to me about it. My mom knows way more than I do about -- I don't like to talk to him about that stuff because it makes me nervous, so I kind of just talk to him about normal stuff.
THE COURT: It makes you nervous generally or it makes you nervous because it's your bother?
JUROR: Because he's my brother.
THE COURT: He wasn't injured at all?
JUROR: No, he wasn't injured at all.
THE COURT: After that he was assigned as a peacekeeper in Kosovo?
JUROR: Yes. He just got back in October, and now he's back at Fort Hood. So he should be there for at least as long as he was in Kosovo, which was a year.
THE COURT: Does he send you pictures or anything, like, on Facebook or Instagram or anything?
JUROR: He has a Facebook account so sometimes I see pictures of him. My mom looks at the 238 Cav Facebook page, but I usually don't look at it. Sometimes I'll see pictures that mom shows me of him, like, in his uniform. The last picture I saw of him, he was at a ball for the military and he --
THE COURT: Dress uniform?
JUROR: Yeah, dress uniform.
THE COURT: I'm looking at Page 19, Question 70. You say you don't listen to radio much, but you rarely listen to Kiss 108?
JUROR: Yeah. When there's a contest to win concert tickets, I'll listen to the radio. Normally, I just listen to my iPod. I don't like the radio.
THE COURT: There's a particular show, I'm told, on Kiss 108, Matty in the Morning. Do you listen to that?
JUROR: I've heard it once or twice, but I -- usually, on the way to work, I listen to my iPod. The last time I heard it was a couple months ago. I don't listen to the radio in the morning.
THE COURT: Did you listen to it any time around the time you filled out your questionnaire?
JUROR: No, I haven't since.
THE COURT: If you'd turn to Page 20, in Question 77, we asked whether, based on things you'd seen or read in the media or else-wise, you had formed any opinion about whether the defendant is guilty or not and, if so, what punishment might be appropriate. We provided some choices, yes, no, and unsure. For each of those you checked "unsure." Would you tell us about that, why you checked that?
JUROR: Yes. I don't watch the news a lot, so I don't really form opinions about stuff that's on the news. The only time I watch the news is if it's on when my parents -- in the morning when I'm putting on my shoes. So I wasn't sure either way because I honestly don't watch the news.
THE COURT: Did you watch news events around the time of the events, the Boston Marathon itself; in other words, in that week in April of 2013, were you tuned in?
JUROR: Not tuned in. I think I heard about it when I was at work. I think I saw, like, a little bit on TV, but I didn't see enough that I'd -- you know, once I see something on the news, I usually don't really follow it.
THE COURT: Okay. Well, if you're a juror in the case, what we'll ask you to do is follow the principles that govern in criminal prosecution, and that is, that any person who is accused of a crime is presumed to be innocent of the crime unless and until the government proves that he is guilty by the evidence at trial and proves it beyond a reasonable doubt.
So to the extent that people might have any impressions beforehand, we ask them to set those aside and to pay attention solely to the evidence produced at trial and to concentrate on that and then decide the issues in the case based on an evaluations of that evidence.
Would you be able to fulfill that duty faithfully if you were a juror?
JUROR: Yes, I believe so.
THE COURT: There's nothing in your impressions or mind that would interfere with that?
JUROR: No.
THE COURT: I'm now on Page 23. Beginning with Question 88, we asked a series of questions about attitudes toward the death penalty in general and maybe more particularly to this case. So in Question 88 we asked the general question, if you have any views, what are they. And you said, "I believe in the death penalty in certain circumstances, but it depends on the crime and if guilty without doubt." Of course, we only get to the question of whether there's a death penalty if someone has already been convicted beyond a reasonable doubt of a crime for which the death penalty is possible, right? You understand that?
JUROR: Yes.
THE COURT: It's a given that the person has been found guilty beyond a reasonable doubt in order to get to the stage.
But when you said "depends on the crime," what were you thinking of?
JUROR: I wasn't really sure when I was answering it because I believe in the death penalty, but I don't, like, have certain circumstances that I would be able to -- at that time I -- I'm not sure there are certain -- sorry. It's really bad.
THE COURT: Relax. Take a deep breath.
JUROR: Okay. So I think it all depends. I'm not sure if there's like -- if I'm one way or the other kind of thing. That's why I kind of --
THE COURT: Let me -- is it something you've thought a lot about or thought not very much about over the years?
JUROR: Not very much about over the years. When I was -- when I was younger maybe because my great aunt was murdered, so when I was younger, but not since then.
THE COURT: Okay. In the next question, 89, we asked you to put yourself on a scale from 1 to 10, 1 being strongly opposed, 10 being strongly in favor. You selected 5.
JUROR: Yeah, in the middle because I wasn't either way.
THE COURT: Okay. On the next page, Question 90, we asked you to -- rather than picking a number, to select a statement that you thought came closest to describing your feelings about the death penalty where someone has been proven guilty of murder. And you selected D.
JUROR: The -- just, like, the middle one, I think, again.
THE COURT: It said you're not for or against it. You could vote to impose it or you could vote for life imprisonment without possibility of release, whichever you thought was called for by the facts and the law in that case. Is that a good summary of your --
JUROR: Yes.
THE COURT: And on Page 25, at the bottom, we asked, if you found this defendant guilty and decided that the death penalty was the appropriate punishment -- this is Question 95.
JUROR: Okay.
THE COURT: You found him guilty and you decided the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty, and you put yes.
JUROR: Yeah. And I put yes for the second one, too.
THE COURT: The other side of it was, if you thought that life imprisonment was the -- without possibility of release was the appropriate punishment, could you conscientiously vote for that, you said yes to that as well.
JUROR: Yeah, because I was still on the unsure part of it.
THE COURT: Does that represent your frame of mind as to the death penalty?
JUROR: Yes, it does.
THE COURT: Follow-up?
MR. WEINREB: A few questions, your Honor. Good morning.
JUROR: Morning.
MR. WEINREB: My name is Bill Weinreb. I'm one of the prosecutors in the case. If you don't mind, I wanted to follow up on a few of the things in your questionnaire.
JUROR: Sure.
MR. WEINREB: You said earlier that you tend not to watch the news or follow it unless it happens to be on.
JUROR: Yeah.
MR. WEINREB: Do you actively avoid the news?
JUROR: I wouldn't say I -- well, I have a TV in my room and it's a DVR, so everything I watch is usually something that has been prerecorded. The only time the news is on in the living room is if my dad is watching it in the morning and I'm putting on shoes. But most of the time I'm in my room or playing a game with my sister. So I don't actively avoid it. I just don't tend to watch it. Sorry.
MR. WEINREB: I guess what I'm getting at is, is it just that it really doesn't interest you compared to other things you could be doing with your time, or is it that there are things you don't want to see and you just as soon not see them or --
JUROR: It probably doesn't interest me because I just don't follow it.
MR. WEINREB: One of the reasons I ask is because Question 87, that asks whether graphic photographs or videos showing severe injuries and so on would affect your ability to serve as a juror, and you wrote no.
Just to flesh that question out a little, the government expects that the evidence in this case will include graphic pictures and videos of people who have lost limbs and been injured in other ways.
JUROR: Okay.
MR. WEINREB: I was -- just wanted to make sure that that -- you wouldn't have trouble looking at that evidence and considering it as part of the case?
JUROR: I don't believe so, no. I've watched -- not a lot of news things but movies and TV shows that have been, and I haven't been -- it hasn't bothered me really.
MR. WEINREB: Turning back to your brother for a minute, you said he served some time in Afghanistan. Is it possible he will be sent back there or to Iraq or to that part of the world?
JUROR: I don't know. It may be possible. Again, I don't talk with him about what he does. I know he was -- yeah, he was in Kosovo for peacekeeping and now he's back, and he signed on for another three years. But however long he was in Kosovo, he can stay in the states. So I'm not sure, in the future, if he would go back. So it's possible.
MR. WEINREB: Again, there may be some evidence in this case -- you may hear evidence that one of the motives for the crime was to punish America for the actions of its soldiers in places like Afghanistan and Iraq.
JUROR: Okay. I didn't --
MR. WEINREB: No, you would have no reason to know that.
JUROR: Okay.
MR. WEINREB: I'm just letting you know that because we're trying to find out just ahead of time whether hearing any certain evidence would create such a reaction in you that you would no longer be able to be a fair and impartial juror. So that's really the question, is, if you heard that kind of evidence, would that interfere with your ability to be fair and impartial, do you think?
JUROR: Sorry. I'm not sure just because -- I don't think so just because I don't know what my -- I just know he's in the Army. And I kind of don't think of what he does when he's over places. I don't think so unless it was, like, directly related to him maybe, like if I knew it was directly him.
MR. WEINREB: And then one last thing. With respect to the death penalty, you said that you could conscientiously vote both to impose a sentence of death and a sentence of life imprisonment depending on what the evidence showed.
JUROR: Yes.
MR. WEINREB: And I just want to ask you one question about that, which is, if you were in a -- on a case like this one, involving a crime that carried the death penalty and the defendant was convicted of it, and you had to vote for the death penalty or against the death penalty, you understand, of course, that that wouldn't just be an abstract kind of decision? That would be a real --
JUROR: Yeah.
MR. WEINREB: -- permanent decision. It would mean that you would be sentencing somebody to death, and you could never change that decision.
JUROR: Yes, yeah.
MR. WEINREB: Do you believe that in a real-life situation you could actually do it, sentence someone to death?
JUROR: I am not sure. I believe I could with all the evidence and everything. I'm not sure to that answer. I'm sorry.
MR. WEINREB: Say more. Why aren't you sure? What's the source of your doubts?
JUROR: Just -- well, I'm nervous right now. I know it would be a hard decision, so that's why I'm unsure right now because I know it's a really big decision.
MR. WEINREB: I think for anybody it would be a hard decision.
JUROR: Yeah.
MR. WEINREB: So that's understandable. But let me probe a little more because you say you're nervous now just thinking about it. When the time comes, if the time comes, you'll actually -- can you -- do you think you might be so nervous or so anxious about it that it would prevent you from being able to do it the way you think you ought to be able to?
MS. CLARKE: Your Honor, a juror never has to impose a sentence of death, and it seems like that's what Mr. Weinreb is trying to get this juror --
THE COURT: Why don't you rephrase to avoid that suggestion.
MR. WEINREB: If you came to -- if it were a real-life situation and the trial had ended and you'd heard all the evidence, the defendant had been found guilty, and now there's been a penalty phase and you've heard more evidence, and now you're back deciding whether to sentence a defendant to life or death, and you think the evidence justifies a sentence of death, but you've actually got to do it, you've got to make -- you've got to -- could you do it, or do you think that, despite feeling the evidence justified it, it would be so emotional a thing, so big a thing, that you couldn't -- wouldn't be able to do it?
MS. CLARKE: Same objection, your Honor.
THE COURT: No. Go ahead. You can answer that.
JUROR: If I was really -- like, I thought it was justified, then I believe I could. If I really at the end thought it was, then I could. But it could go either one. You know, like -- I don't really know at this point.
MR. WEINREB: Nobody --
JUROR: Sorry.
MR. WEINREB: I'm not asking you to predict how you would vote in any case, let alone this case, just whether you could actually do it.
MS. CLARKE: I think she answered that.
THE COURT: I think it's been answered. Anything else?
MR. WEINREB: No.
THE COURT: Miss Clarke.
MS. CLARKE: Good morning. I'm Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev. I'm glad you made it in with the snow.
JUROR: Oh, yes. Thank you.
MS. CLARKE: It sounds like your mom might be a source of information for you about your brother.
JUROR: Yes.
MS. CLARKE: Does she tell you all about his activities overseas and his activities at Fort Hood?
JUROR: No. I know she knows more than I do. She doesn't usually tell me a lot about my brother.
MS. CLARKE: Why is that?
JUROR: I don't ask, I think is probably the answer to that. I don't dig into what's happening. I just kind of will talk to him about other stuff. I don't like thinking about it.
MS. CLARKE: You don't like thinking about it because why?
JUROR: He's my little brother. I'm nervous for him.
MS. CLARKE: Oh, okay.
JUROR: Right now he's in Texas. He's -- I just get nervous about him just because he's my youngest brother -- younger brother.
MS. CLARKE: You mentioned several times today being nervous, and I'm sure --
JUROR: No. Lots of people -- lots of people in one room kind of makes me really anxious.
MS. CLARKE: It does a lot of folks. You mentioned in your questionnaire that -- if I can ask you to look at Question 21.
JUROR: Question 21.
MS. CLARKE: On Page 8. I'm sorry. We've gotten used to where all these questions are.
JUROR: Yes.
MS. CLARKE: Is there anything about the -- that condition that would cause you a problem sitting as a juror in the case?
JUROR: It's usually talking in front of a lot of people. Like, at work, when I first started, I was, you know, quiet. But even with the patients in the office, I usually am more out -- once I get comfortable, then it goes away.
MS. CLARKE: Then it's okay.
JUROR: But right now it's really bad because so many people. Sorry.
MS. CLARKE: Just wanted to make sure you felt at ease.
JUROR: Yeah. It's usually the beginning of stuff, and then usually, after, it goes down.
MS. CLARKE: And then you settle in?
JUROR: Yes.
MS. CLARKE: The judge asked you about how you got your news about the Marathon bombing, and you mentioned that you heard about it at work.
JUROR: Yes. One of the girls, on her phone, heard about it. We have a TV in the patient waiting area.
MS. CLARKE: Okay.
JUROR: I didn't watch it, but I heard from her about it.
MS. CLARKE: Did your mom talk to you about it? Did you get any information that way?
JUROR: Not that I know of. I know, like, after I had seen a little bit on TV, because it was on the shows that I usually watch, but I don't -- I don't think we discussed it that much, I mean, what happened but not to the -- just about what happened. I don't -- see, I don't remember. I'm sorry. We didn't talk about it a lot.
MS. CLARKE: Okay. So you don't have many details?
JUROR: No.
MS. CLARKE: Could I just have one second?
JUROR: Sure.
MS. CLARKE: Did your parents say anything about you being summonsed to come down to be on the jury?
JUROR: No. It was just that -- they knew I was really nervous about going down by myself, so it was mostly about nerves. And then I have a state one, too, so I thought it was weird that I was getting two of them.
MS. CLARKE: You've gotten summonsed twice?
JUROR: Yeah, because I moved the state one last year to this April because I was nervous. So, of course, then I get another one. So it was, like, of course, only me would get two.
MS. CLARKE: You're on a roll?
JUROR: Yes.
MS. CLARKE: Okay. Could I have just one second?
JUROR: Sure.
MS. CLARKE: Thank you very much.
THE COURT: Thank you. Just leave the questionnaire there. Thanks.
COURT CLERK: Juror No. 205.
COURT CLERK: Juror 205.
COURT CLERK: Sir, over here, please, if you would. Please have a seat.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Thank you for being here on a tough travel day.
That's the questionnaire that you filled out. We're going to follow up on some of the questions, so you may refer to it as we do.
First of all, let me just ask if you've been able since your last time here to follow my instructions to avoid discussing the subject matter of the case and to avoid any avoidable media accounts of anything that's going on.
JUROR: Yes.
THE COURT: Tell us about your work life.
JUROR: Well, I'm an engineer. I work here in Cambridge, actually. And I design computer control systems and navigation systems, and I've been doing that kind of work for over 30 years.
THE COURT: With the same company?
JUROR: I've been with the company I'm with now -- should I give you the name of the company?
THE COURT: It's up to you. We know what it is because it's in your question --
JUROR: Draper Labs. I've been there for 25 years. I've worked for a couple other aerospace companies before that so --
THE COURT: Okay. I guess we asked you whether you'd written -- whether you're a published or unpublished author. You've written a number of technical papers.
JUROR: That's correct.
THE COURT: Otherwise, no publications?
JUROR: No.
THE COURT: Social media, you use Facebook a little bit for social --
JUROR: Yeah. I use it to be able to look at my niece's children's pictures and things like that, but I actually don't post anything on any kind of social media. In fact, I'm sort of suggested that I don't do that for the kind of work that I do.
THE COURT: Okay. So let me ask you to turn to Page 20. In Question 77, we asked people to tell us whether they thought they had formed an opinion based on things that they'd seen in the news or otherwise seen or heard about whether the defendant was guilty or not, and if so, what penalty might be imposed and, if they had formed an opinion, whether they thought they would be able to put that aside if they were called to be a juror and judge the questions presented on the evidence in the case and not on pretrial information.
So you indicated that you had formed an opinion about guilt and were unsure about the penalty, but you thought you would be able to set aside any preconceived opinions and decide the case based on the evidence.
JUROR: Yes. I think I could do that, yes.
THE COURT: You understand -- you've served as a juror before, but I think it was in a civil case, correct?
JUROR: Correct. It was a medical malpractice.
THE COURT: You haven't had experience as a juror in a criminal prosecution?
JUROR: No.
THE COURT: You understand, I presume, that in a criminal prosecution anybody accused of a crime is presumed to be innocent unless the government proves that the person is guilty of what's charged by the evidence at the trial and proves that proposition beyond a reasonable doubt. So the burden is always with the government to prove guilt. A defendant never has any burden or responsibility to prove that he's not guilty. It's not a question of which side has persuaded me. It's has the government persuaded me that this person is guilty.
Do you understand that those are the principles that we apply in our criminal justice system?
JUROR: Yes.
THE COURT: Would you be in the frame of mind to faithfully and properly apply those principles if you were a juror in this case?
JUROR: Yes.
THE COURT: You did note in Question 78, if you take a peek, that based on news reports you'd seen, you said it was hard to imagine that he was completely innocent.
JUROR: Yes. I've been watching all the news, and there was plenty of coverage. There were certainly some facts that seemed to be revealed that were pretty compelling.
THE COURT: Could you -- but you're telling us now that you think you could compartmentalize that somehow or put it away that you wouldn't --
JUROR: I think as well as anyone unless, you know, you had not had any exposure to this case at all. I don't think there are very many people that are in that situation so --
THE COURT: Page 21, we asked a couple of questions about whether you were perhaps personally affected by events. You said you knew some people at work who were asked to shelter in place, but they weren't close friends. Earlier you indicated you work in Cambridge. Were you asked to -- were you there on that day when --
JUROR: No, I was home. I live in Middleboro, Massachusetts, 50 miles away, and I -- let's see. The shelter in place was the next -- was a Friday.
THE COURT: Friday, right.
JUROR: No. I was at work on the day of the Marathon. I came home early just to avoid some of the traffic situations and so on.
THE COURT: Before the --
JUROR: No, no. It was -- it was after. I knew that something had happened. I didn't really know much about it, but it was clear that there were going to be some problems with -- I take the subway and the train and so on. And we were advised that that would possibly be disrupted, and a couple of the stations on the red line were closed. I went home. And then on the Friday with the shelter-in-place situation, I heard that on the news and never went in to work that day.
THE COURT: So, in other words, you -- having heard it on the news, you decided not to go in?
JUROR: I stayed home.
THE COURT: I see.
JUROR: I believe the MBTA was closed.
THE COURT: With respect to the 15th, Patriots' Day itself, you went home early?
JUROR: Yup, yup.
THE COURT: Because you heard of the event? In other words, you went home earlier than you would have because the events occurred?
JUROR: Yeah, not significantly, but I think I took an hour early train that I normally take. I was concerned about traffic problems and T interruptions and so on.
THE COURT: So at Page 23, we asked a series of questions about attitudes toward the death penalty, beginning with Question 88. And that question asked about general views. And you said you had no strong feelings either way. Does that accurately --
JUROR: That is accurate.
THE COURT: In the next question we asked you to put yourself on a scale from 1 to 10, 1 being strongly opposed to the death penalty, 10 being strongly in favor. You selected 6. Can you tell us why that was the right number for you?
JUROR: Well, you know, I guess 5 would be right in the middle, right? And that would be completely neutral on it. So I'm just showing just a slight favoritism toward having the death penalty. But I do not have strong feelings about this. I guess I would say that there certainly has been a national debate on the subject of the death penalty and certainly there are a lot of people feel strongly that there shouldn't be one and there are other people that feel that there should be. And I have not formed a strong opinion one way or the other on the subject.
And I think I wrote in another part of the questionnaire that in some ways I think, you know, life in prison may be a more serious punishment than the death penalty. It certainly would give an individual a very long period of time to contemplate things and see the missed opportunities in their life so --
THE COURT: Okay.
JUROR: Those are my thoughts.
THE COURT: I think the question you are referring to is on Page 25. It's Question 93. You may want to just --
JUROR: 25?
THE COURT: Page 25, Question 93.
JUROR: Okay.
THE COURT: Just want you to review your answer there.
JUROR: Right. Okay.
THE COURT: Beyond what you've already said, anything else you want to add to that answer?
JUROR: I think that covers my thoughts on it.
THE COURT: Let's go back a page, to 24. And Question 90, here, unlike 89 where we asked a numerical scale, we asked you to indicate which statement of a series of proposed statements best described your feelings about the death penalty in a case where someone had been convicted of murder. You selected D. It says, "I'm not for or against the death penalty. I could vote to impose it or I could vote to impose a sentence of life imprisonment without possibility of release, whichever I believed was called for by the facts and the law in the case." Is that an accurate summary of your view?
JUROR: That is accurate, yes.
THE COURT: Then again to 25 and the bottom of the page, Question 95, getting a little more particular, we asked whether, if you found this defendant guilty and you considered the death penalty was an appropriate punishment, could you conscientiously vote for the death penalty? And you wrote "yes," or you checked the box "yes."
JUROR: Right.
THE COURT: The next question, on the next page, we asked the reciprocal question basically. If you found the defendant guilty and you decided life imprisonment without the possibility of release was the appropriate punishment for him, could you conscientiously vote for that penalty?
JUROR: Yes, I could.
THE COURT: You said yes there, too, as well.
Finally, just because you have it here and we're looking at it, Question 98, you indicated you have in the past run the Boston Marathon once.
JUROR: Yup.
THE COURT: But it's been awhile. Do you have any particular feelings about the Marathon, affinity or anything, that would interfere with your ability to be an impartial juror in this particular case?
JUROR: I don't think so, no. I mean, I ran the race, and I think it's a great race, but it's not -- wouldn't influence any thinking on this case in any way. I just -- I only mentioned it because I think that it gives me maybe a little bit more insight into what some of the runners were faced with and so on at the time if that's at all relevant in this case. I don't know that it is, but I experienced the race.
THE COURT: Okay.
MR. WEINREB: Good morning.
JUROR: Good morning.
MR. WEINREB: My name is Bill Weinreb. I'm one of the prosecutors in the case. I just wanted to follow up on one of your answers if I could.
JUROR: Okay.
MR. WEINREB: So one of the obligations of a juror when you step into a jury box in a criminal trial is to presume that the defendant is innocent.
JUROR: Yes.
MR. WEINREB: And to acquit him, to find him not guilty, unless and until the government proves that he's guilty beyond a reasonable doubt.
JUROR: Yes.
MR. WEINREB: Can you apply those principles?
JUROR: Yes, of course.
MR. WEINREB: You understand that that means that, if the government doesn't offer enough evidence to prove him guilty beyond a reasonable doubt, you can't fill in what you heard in the courtroom with stuff you may have heard outside the courtroom?
JUROR: I do understand that.
MR. WEINREB: Do you understand that?
JUROR: Yes.
MR. WEINREB: The case has to be decided just on the evidence produced in court. Are you able to do that?
JUROR: Yes. I remember from the other trial that I participated in, this medical malpractice, I believe the judge described it as a brick by brick establishing the case. And that's what I would expect that you would have to do in this case, lay out all the evidence in a very convincing fashion, and that would be the way the case is decided.
MR. WEINREB: Okay. And no bricks can come from outside the courthouse.
JUROR: No.
MR. WEINREB: From what you've heard in the news or anything like that, you understand that?
JUROR: Right. Right.
MR. WEINREB: You understand the defense has no obligation to put on any evidence or to do anything? It's totally on the prosecution to prove to you that he's guilty.
JUROR: I do understand that.
MR. WEINREB: Thank you.
THE COURT: Mr. Bruck.
MR. BRUCK: Good afternoon.
JUROR: It is afternoon.
THE COURT: It's changed while you've been here.
MR. BRUCK: By one minute. Time flies when you're having fun.
I'm David Bruck. I'm one of Jahar Tsarnaev's attorneys. I don't have a great deal to ask you, but I want to follow up on a few things you were asked about.
You checked the little box that said you're a supervisor or you have supervisory --
JUROR: Yeah. We change projects all the time. I worked various projects where I was responsible for running the project and assign people tasks and so on and monitor their progress.
MR. BRUCK: Of course, in a jury, you have 12 equal people even though some are much more educated and much more used to leadership than others. I think maybe you can see where my question is going. Do you think you could respect the ability of everybody else to have their say?
JUROR: I would say, in my role as an engineering supervisor, it's more a collaboration than a directing people, fortunately or unfortunately, depending on how you want to look at it. I find you have to build consensus to do things. It isn't just a matter of asking people to do things your way and they do it. So I understand the jury would have to reach a consensus by some sort of a process of deliberation where everyone's opinion is considered.
MR. BRUCK: And at the penalty phase, do you -- have you pieced together from -- you haven't had full instructions, but the judge has outlined how the system goes. In the end, no one is ever required to vote for the death penalty. The vote has to be unanimous if it's going to be imposed. But so long as the basic requirements have been met to consider the death penalty, it becomes a judgment of each individual juror. In that sense, it's not really consensus. Each juror has to make their own decision. Could you do that?
JUROR: It's a unanimous decision that's required.
MR. BRUCK: It would need to be unanimous to impose the death penalty.
JUROR: Yup.
MR. BRUCK: And I guess that's really where I was going with the question. Could you both do that yourself and respect the --
MR. WEINREB: I object, your Honor. Part of what happens in the jury box is jurors try to convince one another of an outcome. That's an appropriate thing to have happen.
THE COURT: Right. Why don't you start again. Let's back up.
MR. BRUCK: Okay. I guess, in the penalty phase of a capital case, so long as some basic facts have been established that allow the jury to consider the death penalty, then each juror has to make their own decision. It really -- it involves not only facts but also rights -- a sense of right and wrong and what's fair, which might well vary from one juror to the next. I guess my question is whether you would -- could make that moral judgment for yourself?
JUROR: Well, I certainly guess everything about this has been -- I can only express my decision, my opinion, and I can certainly talk with other people and try to persuade them that if they think that -- differently, but I -- I certainly -- it doesn't sound like I have any choice in the matter but to accept the fact that it requires a unanimous decision, and that's the way it is. I can live with that.
MR. BRUCK: Okay. Staying with the death penalty for a minute, you may have noticed -- I don't want to hurt anybody's feelings here, but some of these questions are not very precise on the questionnaire. And I want to look at one of the important ones. Question 77.
THE COURT: It's on Page 20.
MR. BRUCK: On Page 20, asked whether you had formed an opinion, and you checked the box for "yes," guilty and not guilty, "no"; and then C, you checked "unsure" and then "unsure" for D. When you checked "unsure" about the sentence, did you mean to say that you were unsure whether you had an opinion or unsure whether he should receive the death penalty? You see the distinction?
JUROR: No.
MR. BRUCK: Well, the question was: Have you formed an opinion that he should receive the death penalty? Yes, no, unsure.
JUROR: I have not formed an opinion on whether he should receive the death penalty.
MR. BRUCK: Okay. So you're not really unsure that -- whether you'd formed an opinion. You had not formed an opinion. You see what I mean? The problem is in the question and the way -- but I just want to make sure we're on the same page.
JUROR: Okay. Still not sure that I'm on the same page with you.
MR. BRUCK: Well, I think you've answered what I was looking for.
Have you thought about that question?
JUROR: Well, first of all, like I said, we have to establish guilt in this, and then we have to go through the process of determining the appropriate sentence. And I think I've stated before that I do not have a strong opinion about whether the death penalty is the -- is a reasonable thing to do or not, and I don't -- I think it could be imposed, but I have not spent enough time really soul-searching on the topic to have come to a strong conclusion about how I feel about the topic in general. And in this case, I have no thoughts about it at all. I think that would be premature at this point to try to figure out the sentencing.
MR. BRUCK: Okay. Do you see why I'm asking? Some people talk about it in the community, think about it, come down one way or the other even though they don't know for sure, but they know where they stand now. I'm just wondering, understanding that you haven't reached a final decision --
MR. WEINREB: Your Honor, I object. That was really thoroughly asked and answered already.
THE COURT: I think it has been. I agree with that.
MR. BRUCK: You mentioned your wife a couple points in the questionnaire. Has she talked to you about the -- expressed any opinion?
JUROR: I don't think we have talked about my wife yet, but the -- she hasn't expressed a strong opinion about it. Obviously, she knows that I'm here today and what this is about. She hasn't done anything to try to influence me in any way or say, Yeah, yeah, you've got to do this or you've got to do that. It's -- you know, she's neutral on it, I think.
MR. BRUCK: Do you mind if I ask you whether she has said how she feels without trying to influence you but just saying where she stands?
MR. WEINREB: I object.
THE COURT: Yeah. I think we'll limit it to the juror.
MR. BRUCK: Has anybody expressed their opinion to you about either guilt or innocence or what punishment should be inflicted that you can recall?
MR. WEINREB: I object. It's not a follow-up question.
THE COURT: I think so. I agree.
MR. BRUCK: Okay. You see why I'm asking you these questions?
MR. WEINREB: Objection. That's not a follow-up question.
THE COURT: It doesn't matter whether he does.
MR. BRUCK: I guess my last question is just: Do you think there's anything -- this is our last chance, Judge O'Toole's last chance, to know what's inside. And you're the only one who knows.
JUROR: Okay.
MR. BRUCK: Is there anything else that the judge ought to know, that we ought to know, about your feelings about this case?
JUROR: I feel like I've sort of stated my position on this pretty clearly, and I'm not -- there's nothing else that I can think of that I could say that would add to that.
MR. BRUCK: Very good. Thank you so much.
THE COURT: Okay. Thanks. Just leave the questionnaire there.
COURT CLERK: Juror No. 208.
COURT CLERK: Juror 208.
COURT CLERK: Sir, over here, please. Have a seat if you would.
THE COURT: Good afternoon.
JUROR: How you doing?
THE COURT: Thanks for being here on a tough day.
Since you were here last, have you been able to follow my instructions to avoid any discussion of the substance of the case?
JUROR: Tried my best, yeah.
THE COURT: Avoid any avoidable news accounts or media?
JUROR: Yeah, definitely.
THE COURT: So we have -- that's the questionnaire that you filled out. We're going to follow up on some of the questions. I want to start actually on Page 4, Question 6. You were born and raised in People's Republic of China. We asked for your citizenship and you said "PRC." Are you a U.S. citizen?
JUROR: I might have answered that wrong. But, yes, my parents were naturalized when I was under 18.
THE COURT: So you have derived citizenship through your parents.
JUROR: I was sworn in at Faneuil Hall.
THE COURT: When was that, do you know?
JUROR: Fourth grade so --
THE COURT: That gives me an idea, awhile ago. So that was an error when you put citizenship PRC?
JUROR: Yeah, sorry about that.
THE COURT: Wanted to clear that up.
Can I ask you, on Page 7, your father is a physician.
JUROR: Correct.
THE COURT: Where does he practice?
JUROR: Mass. General.
THE COURT: How long has he been there?
JUROR: He's been there since early 2000, since his residency.
THE COURT: Okay. Was he -- some of the people injured in the Marathon bombing were treated at Mass. General after the event. Was he involved in that at all?
JUROR: Not to my knowledge, he was not.
THE COURT: Do you know whether he was on duty that that day or at the hospital?
JUROR: He was working definitely, but I'm not sure if he worked on any of the critical cases that came in that day.
THE COURT: Has he talked to you about that day, what it was like at the hospital?
JUROR: No. I think he has cases that are ordinarily scheduled, and he did what he had to do that day.
THE COURT: Where is his sort of office practice? Is it part of the complex there?
JUROR: His clinic or --
THE COURT: Yeah, where he would see patients on a --
JUROR: 55 Fruit Street, the main campus of Mass. General.
THE COURT: One of the main buildings?
JUROR: Yeah, exactly.
THE COURT: Tell us a little about -- when you were an undergraduate, you took a course in Modern Trends in Islam?
JUROR: Oh, yeah.
THE COURT: Tell us a little bit about that.
JUROR: I went to Union College, which is a pretty typical northeastern liberal arts school, and I felt that, you know, religious studies was a good way to get -- was a good interdisciplinary, pretty solid liberal arts thing, a little bit of English, philosophy, history, and all that. So my thesis was on Modern Trends in Islam. Hit on some, like, stuff that -- big topics, Islamaphobia in the U.S., Islamic finance. I also had an econ minor. It was pretty interesting to go through that exercise.
THE COURT: Since then have you continued an interest in Islam?
JUROR: Nothing more than like a cursory article here or then but --
THE COURT: For example?
JUROR: Like, the news, not like -- for free reading, I don't really delve into, like, textbooks.
THE COURT: Did you study Islamic jurisprudence at all?
JUROR: A little bit, yeah, sharia law. Most of it was on Islamic finance, how they have profit-sharing agreements, all that, instead of charging interest.
THE COURT: Tell us about your day-to-day work.
JUROR: I'm actually transitioning. I work at State Street Corporation, and I'm moving into a role in risk. So I'm actually off for two weeks right now.
THE COURT: What does the transition mean for you in terms of --
JUROR: I'm just hanging out, studying as much as I can about my new role.
THE COURT: No. I mean, how much will your day-to-day change? Different subject matter, is that all?
JUROR: Yeah, exactly, same company, different group.
THE COURT: Same place? Different building?
JUROR: Different building. I'll at One Lincoln, Street, the flagship building.
THE COURT: If you were a juror on this case, would that interfere with your transition?
JUROR: No. Might make my manager unhappy, but other than that, I think we're fine.
THE COURT: We ask -- this is on Page 11, top of the page, 30, about your social media use. Can you tell us a little bit? I take it that's Facebook and Instagram?
JUROR: Yeah. Nothing more than just a cursory, like, scan through the news feed, wishing a friend happy birthday, maybe a strong acquaintance a happy birthday. But I don't, like, run my own blog or anything or post long statuses every day. A pretty casual user, I'd say.
THE COURT: So let me ask you to turn to Page 20. I want to look at Question 77.
JUROR: Of course.
THE COURT: In this question we asked whether you had as a -- because of something you'd seen or read in the newspaper or otherwise learned, whether you'd formed an opinion about whether the defendant was guilty or not.
JUROR: Uh-huh.
THE COURT: And also whether you had an opinion about whether he should or should not receive the death penalty. And you -- we gave you the choice, yes, no or unsure.
JUROR: Sorry. That was pretty --
THE COURT: Then we asked further that, if you answered yes to any of the questions, would you be able or unable to set aside your opinion and base your decision about those matters based only on the evidence that might be presented in court. So you did indicate, I guess, yes, that you had an opinion about whether he was guilty.
JUROR: Yeah.
THE COURT: It appears from the cross-out on the form that you originally picked "unsure" and then you changed it to "yes."
JUROR: Yeah.
THE COURT: As to all the other questions there you answered "no."
JUROR: Uh-huh.
THE COURT: Then down below, as I said, you checked the box saying "able." You thought you would be able to put aside any opinion you had formed and decide the case on the evidence at trial.
JUROR: Uh-huh.
THE COURT: So in a criminal prosecution, every person accused of a crime is presumed to be innocent or not guilty.
JUROR: Sure.
THE COURT: Unless and until the government proves that he's guilty beyond a reasonable doubt.
JUROR: Of course.
THE COURT: By the evidence at trial. You say "of course" because you've heard this before, is that right?
JUROR: Perhaps, yeah.
THE COURT: It's obviously a common principle because it's one of the fundamental ones of our system.
JUROR: Absolutely.
THE COURT: A defendant who is accused of a crime never has any obligation or duty or responsibility to prove that he's not guilty.
JUROR: Uh-huh.
THE COURT: The question isn't: Who is convincing me here? The question is: Has the government convinced me by the evidence at trial that he's guilty?
JUROR: Yeah.
THE COURT: To the extent you have any opinion, would that opinion interfere with your ability to perform according to those principles, or would you be able to compartmentalize the opinion and set it aside and focus only on the evidence at trial and make a decision based on that?
JUROR: I'm not completely sure. Yeah, sorry. My answers are all kind of all over the place on that. I think, in terms of the death penalty, my only reservation would be if it was, like, a wrongful conviction, you can't take that back once you've given that penalty. But, personally, I believe this case is no question for me.
THE COURT: So even if the evidence at trial were not convincing, you would remain convinced by what you heard before the trial?
JUROR: Potentially, yeah. I'd say a strong maybe.
THE COURT: Let me just ask specifically about the death penalty because we did ask some particular questions about that.
MR. WEINREB: Your Honor, if we could interrupt at some point.
THE COURT: Okay. I think I just want to run through these.
MR. WEINREB: Okay.
THE COURT: We will be -- I'm looking at Page 23. We asked for some general views, your general views about the death penalty.
JUROR: Yeah.
THE COURT: In Question 88, you said you didn't have any really, I guess.
JUROR: Yeah.
THE COURT: 89, you put yourself somewhere in the middle as to being opposed or in favor.
JUROR: Yeah.
THE COURT: Is that accurate?
JUROR: I'd say that definitely -- in terms of the death penalty, definitely case-by-case basis. But in something as heinous as this incident, I think I would be more towards the 10 side of the scale.
THE COURT: Okay. Any others, other questions?
MR. WEINREB: No.
MS. CLARKE: Thank you.
THE COURT: Thank you, sir.
JUROR: All right. Have a great day, guys.
COURT CLERK: Juror No. 211.
[REDACTED]
COURT CLERK: Juror No. 211.
COURT CLERK: Juror 211.
COURT CLERK: Right up here, ma'am. Have a seat if you would.
THE COURT: Good morning. No, I'm too late. Good afternoon.
JUROR: Good afternoon.
THE COURT: Thank you for being here.
JUROR: You're welcome.
THE COURT: Have you been able to follow my instructions from the last time to avoid any discussion of this case or process with anybody?
JUROR: Yes.
THE COURT: As much as you could, to avoid any media accounts of the process?
JUROR: Yes.
THE COURT: Of the case?
Tell me about your employment.
JUROR: I work for the City of Lynn School Department. I am work in the Special Ed Department.
THE COURT: Okay. As a teacher's aide?
JUROR: I'm paraprofessional. I'm getting my teacher's license so -- I already passed all the tests so --
THE COURT: Okay. And you have some use of social media, Facebook, but mostly --
JUROR: A little bit. I just play video games, and, you know, I talk to relatives that live out of the country.
THE COURT: Where do they live?
JUROR: Ireland, Australia, Germany.
THE COURT: Could we cut the audio?
(SIDEBAR CONFERENCE AS FOLLOWS:
[REDACTED]
THE COURT: Okay. All right. We can go back on.
. . . END OF SIDEBAR CONFERENCE.)
THE COURT: If you'd turn to Page 20, Question 77, up near the top, we asked whether, as a result of things you'd seen or read or learned from any source, had you formed an opinion about whether the defendant was guilty or not and whether he should receive the death penalty or not. Of the available boxes, you checked in each case "unsure." Can you tell us a little bit about that answer? Why did you select "unsure" about the three options?
JUROR: I really -- I mean, I knew about the case, but I haven't really been following it. I'm just unsure about the death penalty.
THE COURT: Okay. Let's take the first part, (a) and (b) first, where you say you're unsure about that as well.
JUROR: I just -- I -- I mean, I've seen it on TV, in the news and all that, but I was just -- I don't know. I just put I was uncertain about it when I wrote it and I said "unsure."
THE COURT: Okay. You understand that in our criminal justice system anybody who's accused of a crime is presumed to be innocent unless the government proves the person guilty by the evidence at trial and proves that beyond a reasonable doubt. The burden of proof -- of proving somebody guilty or convicting somebody of a crime, the burden of proof is always with the government alone. The government has the responsibility to prove somebody guilty. One of the tasks, if not the central task, of a juror is to listen to the evidence in the case, based on the evidence presented in the course of the case, decide whether the government has done that or not, whether it's succeeded in proving the person guilty beyond a reasonable doubt.
The defendant doesn't have any burden to prove that he's not guilty or to explain anything. It's up to the government entirely to prove the proposition that it advances, and that is, that he's guilty. Do you understand that?
JUROR: Yes.
THE COURT: If you were a juror in this case, would you be able to act faithfully and properly apply those principles in deciding the issues in the case?
JUROR: Yes.
THE COURT: If the government had failed to convince you of any of the charges beyond a reasonable doubt, would you have any hesitation in concluding that the government's proof had failed and that the defendant was, therefore, not guilty of that offense?
JUROR: Could you just explain that one more time, the last sentence?
THE COURT: Let me -- I combined a couple of things there. The burden of proof being placed on the government means, as I've said, that the responsibility of proving its proposition that it has advanced by the accusation, the government proposes by its accusation that the defendant is guilty of an offense. The government has to prove that. The defendant doesn't have to prove the opposite. He doesn't have to prove he's not guilty.
The question is never which side has convinced me about this case. The question is: Has the government convinced me that the defendant is guilty, okay? Do you understand that?
JUROR: Yes.
THE COURT: If the government has -- with respect to any of the particular charges, the evidence is not sufficient, in your judgment, that you're convinced beyond a reasonable doubt that the defendant is guilty of that offense, would you be able in that circumstance to make your verdict not guilty because the government had not proved its case?
JUROR: I'm not sure. I understand what you're saying, but I don't -- I'm not certain what I can -- what my answer is.
THE COURT: What's troubling you?
JUROR: So you want me to -- if the government doesn't present enough evidence, you want me to say that I think he's guilty or not guilty? Is that what it is?
THE COURT: Not quite. Under the law, if a jury concludes and an individual juror concludes that the government has not presented evidence that proves guilt beyond a reasonable doubt, under that circumstance the juror's duty is to return a verdict of not guilty because the government has failed in its proof. Do you understand that?
JUROR: Yes.
THE COURT: The question is if, at the trial, your conclusion as to any one of the charges or all of them that the government had failed to produce what needed to be produced to convince you beyond a reasonable doubt, if that happened, would you be able to return a verdict of not guilty?
JUROR: Yes.
THE COURT: Are you -- you sure you understand my question? You look a little uncertain. That's why I ask.
JUROR: I just -- I'm not sure because you want me to say either guilty or not guilty, right?
THE COURT: What other option might there be?
JUROR: I understand that, but it's just --
THE COURT: I'm not asking you to tell us how you would decide this case.
JUROR: Okay.
THE COURT: I'm not asking that. I'm asking whether you could faithfully apply the principle of law that says, if you're not convinced beyond a reasonable doubt as to any of the counts, then your vote is not guilty?
JUROR: Okay. Yes.
THE COURT: Okay? Are we together now?
JUROR: Yes. This is just, like, a question. It's not against -- it's not about this case. It's just a question in general.
THE COURT: No. It's about -- it is in general, but I want to tie it to this case. If you're a juror in this case, would there be any difference in your ability to apply that principle?
JUROR: No.
THE COURT: Okay. Let me ask you to turn to Page 23. Beginning at Question 88, we asked a series of questions about the people's attitude towards the death penalty. 88 was that very general question, If you have any views, what are they? And you said "uncertain." Can you tell us anything --
JUROR: This is the first time that I ever really had to think about the death penalty, and I just -- I'm really undecided about it.
MR. WEINREB: Is it time to interrupt and --
THE COURT: Okay. No further --
MR. WEINREB: No.
THE COURT: Thank you.
MR. WEINREB: Thank you.
COURT CLERK: Juror No. 215.
COURT CLERK: Juror 215.
COURT CLERK: Ma'am, over here, please. Have a seat.
THE COURT: Thanks for your patience. Since you were last here, have you been able to follow my instructions to avoid any discussion of the substance of the case?
JUROR: Uh-huh.
THE COURT: Or the process?
JUROR: Uh-huh.
THE COURT: And also to avoid, as you could, any news media accounts of this case or what's going on?
JUROR: Yes.
THE COURT: Okay. That's the questionnaire you filled out. So we're going to ask you some follow-up questions about it. Tell us a little bit about your employment.
JUROR: Right now I'm working part time as a bookkeeper for a small company.
THE COURT: I see you're pursuing accounting studies still?
JUROR: Yes, yes.
THE COURT: Can you give us an idea of what the part time is? How much -- how much time is part time?
JUROR: About 17 hours a week. I usually work Monday afternoons, Wednesday and Friday all day.
THE COURT: Okay. In Question 33, on Page 11, you said that -- I guess one of your brothers is a public defender.
JUROR: Yes.
THE COURT: Where does he work?
JUROR: Salem, Mass.
THE COURT: Committee for Public Counsel Services, does that sound familiar?
JUROR: I don't know.
THE COURT: You don't know?
JUROR: I'm not really too close to him. He's a half-brother.
THE COURT: I see. How long has he been a public defender as far as you know?
JUROR: Ten years.
THE COURT: Is that the entire time he's been a lawyer, or did he do something as a lawyer before that?
JUROR: You know, I think he -- you know what? I don't think he's been a public defender for ten years. He's been a lawyer for ten years so possibly five years. And I think he was in private practice -- tried to do private practice before that. I'm really not sure.
THE COURT: Apparently, he's not somebody you're particularly close to?
JUROR: I'm not very close to him. He's a half-brother. He's younger than I am.
THE COURT: You've had -- I'm on Page 15, Question 47.
JUROR: Oh, yes.
THE COURT: You have had jury service before.
JUROR: Yes.
THE COURT: Did both cases go all the way to verdict?
JUROR: Yes.
THE COURT: One was criminal; one was civil?
JUROR: Yes.
THE COURT: When were they, just as a --
JUROR: The civil was probably 16 years ago, and the criminal was -- and I'm just estimating. I don't remember what year it was. Possibly five or six years ago.
THE COURT: Where was --
JUROR: They were both in Salem.
THE COURT: Salem District Court or the Superior Court, do you remember?
JUROR: One was in Superior, I believe, and one was in District.
THE COURT: Do you remember which was which?
JUROR: I believe the criminal was in superior and the civil was in district.
THE COURT: If you'd turn to Page 20, Paragraph -- I'm sorry, Question No. 77, we asked whether, as a result of things you'd read or seen in the news or learned from otherwise, had you formed an opinion about -- or that the defendant was guilty or that he was not guilty or that he should receive the death penalty or that he should not receive the death penalty. And to the we gave you three selections: yes, no, and unsure. To each of those you indicated "unsure." Can you tell us a little bit about why you selected that answer for each of those questions? Let's start first with (a) and (b).
JUROR: Okay. To be honest, I really didn't follow the case. I didn't watch a lot of TV. I knew a little bit about it, just -- I would be unsure because I don't know enough to make an opinion about something like that.
THE COURT: Okay. I was focusing on (a) and (b). Does that apply to (c) and (d)?
JUROR: Yeah. I think (c) and (d), I would need to learn a lot more before I could make a decision about something like that.
THE COURT: So you've served on a criminal jury, so I think you appreciate the principles that apply, but let me just remind you of them. Any person who's accused of a crime is presumed to be innocent of the crime unless the government proves that he's guilty by the evidence at trial and proves it beyond a reasonable doubt. So the government always has the burden of proving its proposition that the defendant is guilty. The defendant doesn't have any responsibility or burden to prove that he's not guilty or to explain anything. That's always -- the burden always rests with the government.
And so that if a juror considering a particular charge made against someone is not convinced beyond a reasonable doubt that the government's proof -- by the government's proof that the person is guilty, the juror's responsibility is to declare the verdict not guilty. Do you understand that?
JUROR: Not unsure but not guilty.
THE COURT: Right. But the point is not -- well, jurors can be unsure during the course of the trial, of course, and then at the end they begin to think about it and talk about it with each other. What I'm getting at is there's never any responsibility on a defendant to prove himself not guilty or innocent. He's presumed to be innocent. The government has to in a sense change the jury's mind about that by proof.
JUROR: Right.
THE COURT: Would you have any difficulty in applying those principles properly in a case -- in this case if you were a juror?
JUROR: No.
THE COURT: Okay. You understand --
JUROR: Yes, I do understand.
THE COURT: Okay. Let me -- so let me ask you to turn to Page 23. Beginning with Question 88, we asked jurors about some -- about the death penalty and what their views might be in Question 88. We asked, if you had general views about the death penalty, to say what they were.
JUROR: Uh-huh.
THE COURT: You left it blank.
JUROR: Uh-huh.
THE COURT: Is it proper to interpret that that you don't have any general views about it, proper or improper?
JUROR: You know, honestly, I really -- I've never been put in a position where I've had to think hard about the death penalty, and I -- you know, I don't have -- I really didn't have anything that I could add down there.
THE COURT: Nothing wrong with that. We just want to make sure that we're understanding your answer properly.
JUROR: I should have put N/A or --
THE COURT: That's all right.
In the next question, we asked you to place yourself on a scale from strongly opposed to strongly favor. And, again, you didn't circle anything but said you could not answer without having all the information about this case.
JUROR: Right. That's just how I feel.
THE COURT: I think we were asking not about this case but about the death --
JUROR: In general.
THE COURT: In general, for this question. Do you have any -- could you put yourself anywhere on that scale, as a general matter, about the death penalty, from strongly opposed to strongly favor? If you're unsure, that's fine, too.
JUROR: I can't answer that.
THE COURT: As I said earlier when we had the group of you, there are no right or wrong answers. We just want your answers.
JUROR: I don't have a strong opinion about that, I guess.
THE COURT: Page 24, the next page, Question 90, here we asked you to look at the series of possible statements and select one that you thought was closest to your view about the death penalty. You selected (d), and you said, "I'm not for or against the death penalty. I could vote to impose it or I could vote to impose a sentence of life imprisonment without the possibility of release, whichever I believed were called for by the facts and the law in the case."
So here, I guess, you thought you could signal that that represented your view, whereas you were a little bit hesitant on the previous two questions.
JUROR: Still seems to me answering that way I'm still a little -- that I could -- it's just that I'm unsure about that.
THE COURT: Right. You haven't thought things through?
JUROR: Right.
THE COURT: Well, let me ask it the other way. Apparently, if you don't have strong views so that you could say I could go -- I could vote for it, I could vote for life imprisonment, I take it then that you're not of the view that you favor one of them over the other as a general proposition?
JUROR: No.
THE COURT: Is that --
JUROR: Yes. You can take that.
THE COURT: You have to -- you really are in suspended judgment until you have heard a particular case; is that what you're saying?
JUROR: I think that that's how I feel, yes.
THE COURT: Okay. In Questions 95 and 96 -- and 95 is at the bottom of 25 -- we asked two sides of a question. If you found this defendant guilty -- you understand, by the way, that the question of what the penalty is only arises if a person is convicted of a crime that carries the potential of a death penalty? So the premise is, if you're considering the death penalty, you've already convicted somebody of a serious murder, right?
JUROR: Right.
THE COURT: So 95 says, If you found the defendant guilty and you decided the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty? And you checked "yes."
JUROR: I know I did. That was, like, the last checkbox that I checked.
THE COURT: Well, not quite. If you go to the top of the next page --
JUROR: No. I went back to it.
THE COURT: I see. Fair enough. You left that blank and went past it and then went back. Okay.
Let's look at 96. 96 asks the other side of that question in a sense. That is, if you found the defendant guilty and you decided life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment without the possibility of release? And you checked that box "yes."
JUROR: I probably should have checked "I'm not sure" to both of them. Those were really hard questions for me. I just -- I know --
THE COURT: Right. We're not asking you to predict what your decision would be in this case because that's -- you don't have -- obviously, you haven't heard the case. Again, we're trying to gauge whether you're in any -- whether there are any reservations you have about either that we ought to know about or whether you're simply in the position where you can't commit to anything until you've heard -- if you're a juror, would ultimately hear.
JUROR: I think that's how I feel. I really feel that I can't -- I should have probably answered I was not sure to those two questions. I don't know why I answered "yes," but I guess I felt that if I heard what I needed to hear to vote that way, then I would be able to consciously vote that way in both those questions.
THE COURT: Okay. All right. Follow-up?
MR. WEINREB: Good afternoon. My name is Bill Weinreb. I'm one of the prosecutors in the case. If I could, I'd just like to pick up where the Court left off just now.
So you said, if you heard what you needed to hear. So I think, as the judge explained, if the defendant's found guilty by the jury of a crime that carries a sentence of death, a potential sentence of death, then there will be a second phase of the trial, and the parties will -- the prosecution and the defense will each offer evidence suggesting what the appropriate penalty should be.
And the real question is: Could you listen to all that evidence with an open mind and, at the end of it, depending on whether it convinced you one way or the other, vote for a death sentence or for a sentence of life imprisonment without release?
And before you answer, the thing I want to make clear is the parties aren't going to be debating whether there should be a death penalty or not or whether a crime should be punishable potentially by death or not. That's just the law that the judge will instruct you on, that certain crimes are and that there is a death penalty. The question will just be whether it's the appropriate sentence or not.
And so the real thing that I think both sides are trying to get at is could you -- are you able to consider all that evidence, decide which one -- which sentence you think is appropriate, and vote for it? Could you do that?
JUROR: Yes, I believe so.
MR. WEINREB: Okay. And so -- and just to break that down, if you -- not necessarily -- not in this case but just in general, if you were on a case where you heard evidence that convinced you that a death sentence was appropriate in this case, even though it might not be in other cases, could you actually do it, meaning could you vote to sentence someone to death knowing that your vote would be part of what meant that they would get the death penalty and you could never take that back? Is that something you would actually be able to do, do you think?
JUROR: I don't know.
MR. WEINREB: This is our only chance to find out whether you could do it or not. So let me ask you to think about it. Is that the best you can do at this point, you think? You just don't know?
JUROR: I think so, yeah.
MR. WEINREB: So there's a possibility you would not be able to no matter -- even if the evidence showed it was an appropriate sentence?
MR. BRUCK: Objection. It's not the evidence that shows. It's the juror deciding.
THE COURT: Sustained. I agree with you. Sustained.
MR. WEINREB: If at the end of the trial you heard all the evidence and you decided that the death sentence was an appropriate one for this particular case rather than -- even if it wouldn't be in others, you're not sure that you could actually do it? You could actually sentence someone to death?
MR. BRUCK: Object to leading.
THE COURT: Go ahead. You can answer it, I guess.
JUROR: I don't know right now.
MR. WEINREB: Thank you.
MR. BRUCK: Good afternoon, ma'am.
JUROR: Hi.
MR. BRUCK: My name is David Bruck, and I'm one of Jahar Tsarnaev's attorneys, and I just want to follow up on a few things.
Mr. Weinreb -- I want to be sure we're on the same page or talking about apples and apples with the question that Mr. Weinreb just asked you. I think the question wasn't whether you will -- whether you would impose the death penalty in this case. You wrote you don't know the facts, right?
So you said you were undecided. And you would want to hear the facts before you made up your mind? Is that where you stand?
JUROR: Yes, yup.
MR. BRUCK: Okay. You haven't decided the case already?
MR. WEINREB: Objection, your Honor. These are all leading questions.
THE COURT: Yeah, they are.
MR. BRUCK: The question that I think Mr. Weinreb meant to ask you is, if you heard all the evidence, you first convicted -- you and the rest of the jury convicted the defendant, any defendant, of a case -- of a crime that could carry the death penalty, then there would be a second phase, and the government would present evidence that made this an especially bad case or that made this person an especially bad murderer and the defense presented evidence that said that maybe life imprisonment was adequate, and you heard it all and decided that this particular case, based on all the facts you had heard, that this was an appropriate case for the death penalty, and that was your opinion, that's the question. If it was your opinion that the death penalty was the right thing to do, could you do it?
JUROR: I think, if it was my opinion that that was the appropriate punishment, then I wouldn't consider it if it wasn't my -- yes, I think -- I guess the answer would be yes.
MR. BRUCK: Right. You see what the questioning is. Some people might not have the courage of their convictions. And the question we're asking you is, if your conviction was the death penalty was the right thing to do -- we're not saying it will be.
JUROR: Right.
MR. BRUCK: But if it was, could you vote to impose it understanding nobody wants to but could you?
MR. WEINREB: Objection, your Honor.
THE COURT: Yeah. Let's let her answer the question if you're able to.
JUROR: I want to say yes, but part of me still says I'm unsure.
THE COURT: Why is that? Let me just --
JUROR: I don't know. I feel like, if I made that decision that that was -- if I made that decision, that that was my -- inside me, that I decided that that was what was right and that was -- I would want to say, yes, I could vote for it. But there's a little piece of me inside of me that says that I'm not sure that, you know, that --
THE COURT: Okay.
MR. BRUCK: Is that -- are you telling us that's something that you could never -- are you feeling that no one can ever say that until they are in the situation?
JUROR: I think --
MR. WEINREB: Objection, your Honor. Whether that's the case or not, that's not the question here.
THE COURT: I think we have the picture here.
MR. BRUCK: Thank you.
THE COURT: Okay. Thanks.
The next one that was on our list, 219, you probably know has been postponed. So that leaves three. I would be inclined --
(Discussion held off the record.)
THE COURT: There would be three left.
MR. BRUCK: Want to take a short break?
THE COURT: Why don't we do 1:30. How's that? That will help the jurors get on their way.
(Recess taken at 12:55 p.m.)
(After the recess:)
(The Court enters the courtroom at 1:40 p.m.)