5.Voir Dire Follow-Up Limits, Questionnaire Interpretation, Juror 238 Excusal, and Panel B Hardship
55 linesMS. CONRAD: Your Honor, may I just raise one issue on that last point? I feel like I've read this questionnaire pretty thoroughly, and the way the question is framed is, Question 36, is "Do you have any concerns about your ability to follow that instruction," which is not quite the same thing. And if Mr. Mellin is allowed to ask questions about details about interactions with law enforcement, it seems to me it's fair follow-up to ask how that would affect your view of a witness.
THE COURT: You were just asking the same question.
MS. CONRAD: No, I'm not asking "Do you have any concerns"; I'm asking whether it would cause her to view it differently. It's not whether she has concerns.
THE COURT: I think it's substantially the same question.
Anyway, let me just point out on the ambiguity -- by the way, I think most of these questions were as a result of a shared proposal.
MS. CONRAD: Well, excuse me, your Honor. That's not quite true.
THE COURT: Well, I don't know all the history. I know that I didn't write it, so I know -- let me go to another potentially ambiguous -- I don't think 77 is as ambiguous as has been suggested. The question is: "Have you formed an opinion," and then if you continue on, "that the defendant is guilty?" It's not whether the defendant is guilty, which would be a question about the existence of an opinion. This presents the opinion and says, "Have you formed this opinion?"
MS. CONRAD: But then what is --
THE COURT: So I'm not sure the ambiguity is as.
MS. CONRAD: But then what does "unsure" mean in that context?
THE COURT: I don't know. That's a fair question.
MS. CONRAD: That was my question.
THE COURT: But -- no. The suggestion was, and I think it happened the other day too, and I hadn't focused on it myself until that time, that if the question was "Have you formed an opinion whether he's guilty or not," then you could arguably be asking whether the mental event had occurred and that there was an opinion rather than asking for what the opinion was.
This posits the opinion in each of the subsections and says, "Have you formed an opinion that he is guilty? Yes, no or unsure?" "Have you formed an opinion that he's not guilty? Yes, no or unsure." So it's not whether you have an opinion; it's about whether you have the specific opinion.
MS. CONRAD: But I think the problem is that for people who answer "unsure," it is more plausible -- or certainly is plausible that they are unsure whether he's guilty or not as opposed to they're unsure whether they have an opinion, which frankly doesn't make any sense.
THE COURT: Well, okay. I think I made my point. I think we could move on.
MR. WEINREB: Your Honor, could we go to sidebar mode for a minute?
THE COURT: All right.
COURT CLERK: Cut it.
MR. DOREAU: Audio and video off.
(Discussion at sidebar and out of the hearing of the public:)
MR. WEINREB: So over the break the parties took another look at 238, and I think we've reached an agreement.
MS. CONRAD: I'm sorry. I can't hear a word Mr. Weinreb is saying.
THE COURT: That's the next one?
MR. WEINREB: Yeah. A combination of hardship -- it's apparently a single mother of a middle-school child who she says has depression -- and then there are other factors.
THE COURT: Okay. I think I had the hardship issue in my mind when I reviewed this.
MS. CLARKE: There are also substantial connections.
MR. BRUCK: That was the basis on which we agreed.
THE COURT: Where is that?
MR. MELLIN: 80 through 82, your Honor.
MR. BRUCK: Connections to the event.
THE COURT: I don't know if they are but...
MR. WEINREB: That's not the basis on which we agreed, but I understand that's a concern of the defense.
THE COURT: It does seem to be a concern. We might have to explore that to find out -- although I think 80 is concerning, I'm not sure 81 and 82 is so concerning. But 80. I think my reaction when I read the circumstances of the hardship, that that was likely to be recognized.
So I guess we can just skip that.
Okay. So we'll take a break. And I have another matter that I have to deal with. It shouldn't take too long. It's a conference in another criminal case. I think we're going to do a telephone conference at about 2:30. So three o'clock okay for everybody --
UNIDENTIFIED ATTORNEY: Sure.
THE COURT: -- just to have a round number?
MS. CLARKE: We think the Court should be able to reassign its other cases.
(Laughter.)
THE COURT: Night court.
(Laughter.)
THE COURT: Before everybody wanders, we have a list -- this should be on the record but it's in sidebar mode. So stay cut.
MR. DOREAU: We're still off.
THE COURT: We're still off.
So we prepared a list of my suggested excusals for tomorrow, and if you're agreeable to those and if you have any others that you want to propose, we can deal with them and then we'll backfill. We have, then, a much more extensive list for what is basically the rest of Panel B that I would like to have resolved by Friday afternoon, if we could, so that we could prepare all of next week without these people. I think we're about to get to the point where we'll stop dragging in people that we immediately send home, which is troubling, frankly, but...
So if you'd each --
MS. CLARKE: So, Judge, this long list is --
THE COURT: Is for next week.
MS. CLARKE: -- out of the rest of B?
THE COURT: Yes. It covers a couple hundred people, I think. And let me just tell you, my criterion is that it's virtually certain by the -- what we've already been doing in two areas in particular -- well, I guess principally hardship is what it is. Principally hardship. And there are different kinds of hardship: There's, perhaps, family matters; there's, perhaps, trips that are planned; there's, perhaps, student status and something.
But I have not tried to cut it finely, so that if somebody looks like they're an hourly worker but they have answered Question 10 "no," I haven't proposed them to be excused. I haven't made the judgment that they can't handle it even though I suspect that might be the case.
So these are intended to be pretty clear people. And so there will still be some people that will have hardships that we'll recognize, but these are ones that are palpable on the face of it.
MS. CLARKE: Judge, what does this list go through tomorrow, 279?
THE COURT: We had the number.
COURT STAFF: It's at the bottom.
THE COURT: Oh, yeah, it's at the bottom. Whatever it says in the footnote.
MS. CLARKE: Through 276. We've already agreed on 242, I think.
THE COURT: Well, anyway, take a look at this, and this afternoon let us know about tomorrow's, and then by, you know, early afternoon tomorrow, so Jim can work on it for next week, if you could let us know about the rest of the list. There's about 30 or so of them, I think.
MR. MELLIN: Your Honor, if we -- if the parties have a perhaps slightly more liberal criteria of hardship and we can come to agreements that exceed what your Honor has suggested, should we propose those or not?
THE COURT: Yeah, you can propose them. I would want to look at them. So okay. Thanks. We'll see you about three.
(The Court exits the courtrooms and there is a recess in the proceedings at 2:28 p.m.)
(The Court enters the courtroom at 3:08 p.m.)