2.Individual Voir Dire — Impartiality and Death-Penalty Views (Part 1)

THE COURT: Good morning.

THE COURT: A little louder.

THE COURT: Have you been able to abide by my instructions given when you filled out the questionnaire not to discuss the case with anybody and to avoid as much as possible any media accounts of the case?

THE COURT: You have to answer affirmatively for the Court Reporter.

THE COURT: So we have the questionnaire there, and we may refer to it a little bit as we go along, okay?

THE COURT: Let me ask you to turn to Page 5, Question 9.

THE COURT: Would that have any effect on your ability to participate and follow what was going on?

THE COURT: Something you've adjusted to?

THE COURT: Tell us a little bit about your work.

THE COURT: How long have you been unemployed?

THE COURT: Do you have prospects of employment in the near future?

THE COURT: I see, okay.

THE COURT: Medical issues. Speak up a little louder, please.

THE COURT: So do you have a plan to return to work?

THE COURT: When do you plan to return?

THE COURT: So I guess we're trying to determine whether serving on the jury would be a hardship for you or particularly difficult because of your employment. Are you saying that you're prepared to serve on the jury if necessary and then resume employment?

THE COURT: Okay. Tell us a little bit about -- you use Facebook and Instagram?

THE COURT: Tell us how you use it and how often.

THE COURT: Okay, how do you use Facebook? What do you use it for? Do you make postings as well as read other's?

THE COURT: You don't post much.

THE COURT: So I guess I'd like you to turn to Page 20 of your questionnaire. Question 77, we asked people if -- I'm going to ask you in particular, I guess, in this questionnaire, if you had, as a result of anything you'd seen or read in the media or otherwise, formed any opinion about various matters set forth in A, B, C, and D. The first was whether the defendant was guilty or not guilty, and then a question about, if so, what penalty might be imposed, and let's take a look at the first answer first. You said that you had formed an opinion that he was guilty.

THE COURT: And then as to the penalty questions, you said you were unsure. We also asked if you were able or unable, if you had an opinion, if you were able or unable to perhaps set that aside and listen to the evidence in the case and make a decision based only on the evidence in the case rather than a preconceived idea from the media, and you indicated you would be unable to do that. Did you understand the question?

THE COURT: Well, let me come at it this way: Do you understand that in the criminal justice system, our system of justice, a defendant who is charged with a crime is presumed to be innocent of the crime, not guilty, unless the government proves otherwise at trial by the evidence that's produced at trial? So the burden of proving somebody guilty of a crime that they're accused of rests with the government, and if the government fulfills that burden and satisfies the jury beyond a reasonable doubt that the person in fact committed the crime, then the jury is authorized to find the person guilty on that basis; but if the government fails to prove to the jury's satisfaction beyond a reasonable doubt that a person is guilty of the crime, the presumption of innocence continues, and the jury is obliged under that circumstance to find the person not guilty. Do you understand those principles?

THE COURT: And the question would be, if you were a juror in this case, notwithstanding things you might have heard or opinions you may have formed, would you be able to as a juror insist that the government satisfy you beyond a reasonable doubt by the proof at trial rather than based on things you had heard outside the trial?

THE COURT: You think you could do that?

THE COURT: We asked, because as I have just said to you all, the death penalty is a possibility in the case under some circumstances, if the defendant is convicted of certain crimes, so we also have asked you some questions about your attitude toward the death penalty. I'm on Page 23 now, and beginning with Question 88, we first asked if you had any views on the death penalty in general, and, if you did, to put them down. You didn't make a response to that question. Do you have any general views about the wisdom or appropriateness or even morality of the death penalty?

THE COURT: In Question 89 we asked if you could kind of indicate whether you were strongly opposed or strongly favored or somewhere in between of the death penalty. You selected No. 5, which is sort of in the middle.

THE COURT: Can you tell us why you selected 5?

THE COURT: Turn to the next page, Question 90. Here we asked you not on a scale of numbers but in words to select a statement among the possibilities that you thought best described your feelings about the death penalty in a case of somebody who's been proven guilty of murder, okay? You selected C, which says, "I am opposed to the death penalty, but I could vote to impose it if I believed that the facts and the law in a particular case called for it." Does that represent your attitude about the death penalty?

THE COURT: And about whether you could consider it and possibly vote to impose it --

THE COURT: -- in a case?

THE COURT: If you turn to Page 25, I'm going to ask you about Question 95 and then 96 at the top of the next page. They go together in a sense. 95 is, "If you found this defendant guilty and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty?" And you selected the box that said "I'm not sure."

THE COURT: If you look at Question 96 on the next page, it asks sort of the other side of that question: "If you find the defendant guilty and you decided life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life in prison without the possibility of release?" and you said "yes" to that. So could you maybe explain a little bit about your answer that you were not sure to the first one and your answer "yes" to the second one.

THE COURT: Yes, relax. I know that's easier for me to say, but take it easy.

THE COURT: Yes, that's right, so we're not asking you to make up your mind about the penalty at this stage. Obviously you haven't heard what you would ultimately hear. The question is, is there some reason you would find yourself unable to consider seriously the death penalty if you thought it was an appropriate punishment? In other words, even if you thought it was appropriate, would you hesitate or be reluctant to vote in favor of the death penalty for any reason? Or, as the question asks, if you decided that the death penalty was appropriate, could you conscientiously vote to impose it?

THE COURT: You would have no problem if you thought it was appropriate to vote for it?

THE COURT: Okay, follow-up? Each of the lawyers may follow up a little bit here. Not each of the lawyers, one for each side.

THE COURT: I think it's a little speculative, I guess is the problem.

THE COURT: I think that may not be specific, and I'm not sure that the juror would truly understand what you're asking. Try it again.

THE COURT: Just focus on the question. Just take your time, read the question, give it a little thought, and then see if you can explain what your answer is. And, frankly, your answer may be the same as you gave then, or maybe, if you've thought about it and you understand the question slightly differently, maybe your answer changes. So we just want you to focus on the question, I guess, and we'd like to know what your answer to that question would be.

THE COURT: First of all, I guess I want to be sure you understand the question. Is it confusing you at all what the question is asking you?

THE COURT: Let me try to rephrase the question. The question is asking in part, if you became convinced after the penalty phase that I described, where you have aggravating factors and mitigating factors -- and this, by the way, you don't get to the penalty consideration, you don't get to think about whether a penalty is imposed unless you have already as a jury convicted the defendant and find him guilty of a crime that qualifies for the death penalty, right? So start from that proposition. We're talking about a person who has been convicted of a serious crime that could be punished by death. So then the question is, you'll hear the evidence in what we call the "penalty phase" of the trial, some pro, some con with respect to the imposition of the death penalty. What this question is asking is, if you became convinced after considering all of that evidence, pro and con, aggravating and mitigating, and you concluded that for this offense the death penalty is the appropriate punishment, okay, so now you think it's the right thing to do, I think the question is, could you conscientiously cast that vote knowing that it would result in somebody being sentenced to death?

THE COURT: Yes, I think you should not. I've reconsidered it, actually. I'm not sure of the law on that point. You're talking about the --

THE COURT: Yes, I'm not sure of it. I know there's a case, but I'd like a little better authority on that, so I think we'll just avoid it for now.

THE COURT: No.

THE COURT: No, go ahead. I'll allow a little exploration here.

THE COURT: Can I just ask, have you talked about this with any of your close friends that you might be on this case and might have to consider these questions?

THE COURT: No? You have a sister and a brother?

THE COURT: Have you talked with them about it?

THE COURT: But you didn't talk about the death penalty is what I'm --

THE COURT: You haven't had any family discussions about that?

THE COURT: All right, thanks.

THE COURT: Yes, you can bring her in now.

THE COURT: Good morning.

THE COURT: Thanks for being here on a crummy day.

THE COURT: Have you been able, since you were here and filled out the questionnaire, have you been able to follow my instructions to avoid any discussion of the substance of the case --

THE COURT: -- or the processes? And also, as best you could, to avoid any media accounts of what's going on, either in the case or what has gone on in the past?

THE COURT: Okay, good. Thank you. So tell us about your employment. You used an acronym. I don't know what it means, HIM.

THE COURT: Okay. And you've been at your current place of employment for a couple of years, it looks like?

THE COURT: Yes, and in answer to one of the earlier questions -- it was really a question about whether it would be difficult to serve on the case -- you indicated you've had a recent promotion?

THE COURT: Okay. You put that information in the questionnaire under the question about hardship or difficulty serving. Are those related? Is your promotion --

THE COURT: Tell us about social media. I guess you indicated you use Facebook a little bit but not much.

THE COURT: Check up on them.

THE COURT: Okay. Let me ask you to turn, if you would, in the questionnaire to Page 20, and you can take the clip off if it makes it easier for you. Question 77, we asked whether, if you'd seen or read things in the media about the case, had you formed any opinion about, as you see in Subparts A, B, C, and D, whether the defendant is guilty or not, and, if so, whether he should be sentenced to death or not. We gave you some available choices, "Yes, No," and "Unsure," and you checked "Unsure" for all of those. Can you explain why you selected that answer?

THE COURT: Yes, yes.

THE COURT: Well, let's stick with the guilt or innocence --

THE COURT: -- because you said you were unsure about those things as well.

THE COURT: Okay, so it's not unusual for people, particularly in cases that have had publicity, to have some ideas about it. That's what the stories have been indicating, of course. So the question is whether someone who has an idea because there has been publicity about a case, a person who's serving on the jury can set aside those ideas and decide the case entirely on the basis of what is presented in the course of the trial. So that's the question that we're trying to get at. If you were a juror, to the extent you had any opinion before the trial, would you be able to put it aside and listen to the evidence and make a decision only on that information base, or do you think that it would be too difficult to set aside the opinion you've already formed and isolate it from the consideration in the trial?

THE COURT: Yes, so let me just be a little more specific in terms of the legal rules that apply. Under our system, whenever anyone is accused of a crime formally, the person is presumed to be innocent of the crime. The default position, as it were, is "not guilty" unless the government proves at trial by the evidence that the person is guilty of the offense; and that proof has to be strong, strong enough so that the jurors have no reasonable doubt about the fact that the person is guilty. So would you be able to adhere to those principles of presumption of innocence and proof by the evidence beyond a reasonable doubt if you were selected as a juror in this case?

THE COURT: I'm going to ask you some questions about the death penalty in a minute, but on Page 21 we asked whether you or anybody in your family or household had taken part in various support activities after the event, contributed to the One Fund or buy Boston Strong merchandise. You indicated "Not sure." Is that just because you don't know what other family members would have done? Take your time to read it, yes.

THE COURT: You do know about yourself, though, I guess, right?

THE COURT: Okay, all right, that's what I was trying to get out.

THE COURT: It's an ambiguous question. I just wanted to be sure that the answer was about other people you haven't inquired of and you don't know.

THE COURT: If you turn to Page 23, beginning at Question 88, we asked a series of questions to see if we could get you to express in various ways what your attitude might be about the death penalty, both in general and then perhaps as applied in this case. Question 88 asked if you had any general views about the death penalty, and you said "No." Is that accurate?

THE COURT: Precisely. If it's evolved, if you've thought more about it and want to expand on that answer, or even change it entirely, that's what we'd like to know. That's why we have you here.

THE COURT: I'm not sure what --

THE COURT: Okay, well, I think we'll come back to that, actually. Let's look at 89. Here we kind of asked you to put on a numerical scale where you thought you might be, strongly opposed at one end, strongly in favor. You selected 3, which is on the "opposed" side of the scale.

THE COURT: You know, every person who answers this question would perhaps have a different way of distinguishing 1 from 2 from 3 to 4, and so on, but you picked 3.

THE COURT: Have you ever been aware of a case, probably through the media or otherwise, where the death penalty was an issue, and you kind of were paying attention to it, and you had a reaction to what was happening in that case?

THE COURT: If you'd go to the next page, Question 90, here, rather than a scale of numbers, we asked you to see if there was a statement among the various ones proposed that you thought best described your feelings about the death penalty in a case where someone has been convicted of murder, okay? You have to take that as a given, but, of course, we don't get to the question of whether there's a penalty or not unless somebody has been convicted of a capital offense first, okay? You selected D, which was "I'm not for or against the death penalty." Basically you could vote for it or vote for an alternate sentence of life in prison without the possibility of release depending on what you thought was called for by the facts and the law in the case. That seems a little different from what you've told us this morning.

THE COURT: Sure.

THE COURT: Well, I guess at least when you filled out the questionnaire -- you know, your views may have changed a little bit -- at least when you did that, you said this statement was a description of your own attitude in a case where the death penalty might be imposed, and I guess the question is, on reflection, do you still think that is --

THE COURT: Okay, C says, "I am opposed to the death penalty," I guess probably as a general matter is what it means --

THE COURT: "-- but I could vote to impose it if I believed that the facts and law in a particular case called for it."

THE COURT: Do you think that's a better expression?

THE COURT: Then if you go to the bottom of Page 25, Question 95, and then I'm going to ask you about 96 which is the top of the next page, 95 is, "If you found this defendant guilty and decided that the death penalty was an appropriate punishment for him, could you in that circumstance conscientiously vote to impose the death penalty?"

THE COURT: Okay, you said you're going to answer the same.

THE COURT: You saw that you had selected "Not sure" on that.

THE COURT: Okay. Is your reservation about being asked to express an opinion about facts you haven't considered yet, or is it a hesitation for some reason that your conscience would object to --

THE COURT: Well, I guess what the question is asking, if intellectually you thought it was right that the death penalty should be imposed, could you personally vote to do that?

THE COURT: We asked a similar question in 96 on the top of the next page, which is the other side of that question, of course: "If you thought that life imprisonment was the appropriate punishment, could you vote conscientiously for that?"

THE COURT: Okay, I'll leave it there.

THE COURT: Yes, I'm not sure that the choices are the only available choices. I think the two-part -- try it again. And, also, for the benefit of the juror, long questions with alternatives -- I've done it too, so I'm not -- with alternatives may be hard to absorb and follow.

THE COURT: No questions. Okay, thank you. Just leave that right there. We'll put it together.

THE COURT: I was just going to point out, it wasn't about feeding. It was about tending.

THE COURT: You can adjust it. Good morning.

THE COURT: Have you been able to since you were last here follow my instructions not to discuss the case in any substance with anybody or --

THE COURT: And to avoid as much as you could any contact with media stories about the case?

THE COURT: Okay, thank you. So feel free to follow along as I ask about the -- we're going to follow up on some particular questions and answers that you gave. I want to start actually at the bottom of Page 4, and if it's convenient, you can take the clip off. Question 8, you said you have trouble understanding people with accents. Could you just explain that a little bit.

THE COURT: Are there particular kinds of accents that you have difficulty with?

THE COURT: Okay. On the next page, I guess in both questions really, you're sort of concerned about, one, the stress, but also being away from your home and what you do there and so on. Could you just tell us a little bit about why you think this would be a difficult case for you.

THE COURT: Are you thinking if you were sequestered?

THE COURT: That's not going to happen during the presentation of the case.

THE COURT: So, I mean, if this was all related to that concern that you'd be really taken away from home for months at a time, that's not going to be the case.

THE COURT: To be candid with you, I mean, because you're concerned about the commute, it would be a daily commute.

THE COURT: Did you drive? I mean, did you come by --

THE COURT: From Ayer?

THE COURT: Into North Station?

THE COURT: But just to be clear, if you were commuting back and forth on a daily basis, that would not raise the question that you were concerned about, for example, tending the flock.

THE COURT: All right, thanks. On Page 6 you tell us that your husband is a marketing executive. Can you tell us for whom he works.

THE COURT: All right. You yourself used to be formerly a software engineer?

THE COURT: How long since you've done that?

THE COURT: And to the extent -- do you have current employment? You refer to a market that you worked at for a few months.

THE COURT: Okay. And tell us about your social media. I'm looking at Question 29 and 30. In 29 we asked you if you blogged or posted on websites and so on, and you listed a number of topics that you like to talk about, but it wasn't clear the medium, whether this was on a blog or something similar, 29 on the bottom of Page 10.

THE COURT: You talked about the subjects you like to, you said, talk with people about, and it wasn't clear whether you were exchanging comments on a blog or Facebook or something. I just was wondering how you carried on those conversations.

THE COURT: Post comments?

THE COURT: Okay. And Question 30 on the next page, you said you're on Facebook daily?

THE COURT: That was an estimate?

THE COURT: Do you make posts there as well?

THE COURT: You refer in a couple of places to the Weston Price Foundation. Can you tell us what that is? This is Question 39 and 51.

THE COURT: Okay, and you're, I guess, a chapter leader, you say?

THE COURT: So you're kind of an information source for people who have similar interests?

THE COURT: Is that a fair way to characterize it?

THE COURT: I'm now at Page 19. Why don't you look at Question 74. We asked about your reaction when you realized you might be called to be a juror in this case, and you said you're concerned about the stress it would cause you. Can you just tell us a little bit about that.

THE COURT: I want to now bring in your answer to Question 75, and I guess before getting into what the relationships among these students may be, is that a cause of the stress?

THE COURT: Does this figure in the mix or not?

THE COURT: I mean, maybe it doesn't. I'm just asking.

THE COURT: And I think you told us a little bit more about it later on. It was Question 83. So your daughter has a boyfriend, currently still?

THE COURT: All right, but her recent boyfriend knows the defendant from Cambridge Rindge and Latin?

THE COURT: And also from UMass Dartmouth?

THE COURT: Oh, also from high school, though?

THE COURT: The friendship wasn't while they were both at UMass Dartmouth? Did the boyfriend go to UMass Dartmouth?

THE COURT: Okay, but he knew the kids from Dartmouth because he had been with them at Cambridge --

THE COURT: How would that, if at all, affect you if you were a juror in this case?

THE COURT: Okay. I'm now on Page 20, Question 76. We asked whether after you had received the jury summons, and I guess after you realized that this was the case that you might be appearing in the process for, whether you did any research, and you explained that you did some online research?

THE COURT: When was that? Was it at the end of the -- so you came in, I guess, January 5, the first Monday in January? Is that when you filled out the questionnaire?

THE COURT: So was it in the December range that you did the research?

THE COURT: Well, but here you say you looked up some of the countries involved. We had asked back a little earlier about some countries that, you know, you might hear evidence about in some way or another, Kyrgyzstan, Russia, Chechnya, Dagestan, and so on. Are those the countries you looked up?

THE COURT: And then you say you looked at some of the conspiracy theories.

THE COURT: What was that?

THE COURT: Tell me if I'm wrong, but it sounds like you spent a fair amount of time doing that.

THE COURT: Okay, let's move on to the next question, 77. There we asked whether from things you'd seen or read about, whether as of the time you filled out the questionnaire you had formed an opinion about whether the defendant is guilty or not -- that was Part A and B of Question 77 -- and then whether you'd formed an opinion that he should be punished by the death penalty or not. And as to the first two, A and B, you indicated you were unsure. In other words, as to A, "Have you formed an opinion that the defendant is guilty?" you said "Unsure." And then, B, "Have you formed an opinion that he was not guilty?" you'd said "Unsure." Can you explain why you selected that option of the three options you had?

THE COURT: Okay. So you understand, of course, that in a criminal prosecution, the defendant is presumed to be innocent unless and until the government proves that he's guilty by evidence at the trial. So it has to be convincing enough that the jurors have no reasonable doubt about the fact that the person has committed the crime. If you were a juror, would you be able to adhere to those principles and judge the case solely on the evidence produced at trial?

THE COURT: Now, with respect to the next two, you were firmer. You said, no, should not receive the death penalty, yes, he should not. I asked the question badly, but you see what I mean. Rather than being unsure about this part of the question, you had a view.

THE COURT: Can you tell us a little bit about that.

THE COURT: So later in the form we asked some questions about your view on the death penalty. Let's turn to those. It's on Page 23. It begins with Question 88, and we asked about general views about the death penalty, if you had any, and you wrote there something similar to what you've just said, right?

THE COURT: Then in the next question we asked you to place yourself on a scale from 1 to 10 of strongly opposed to strongly favor, and you selected 6, which is sort of in the middle. And then on the next page, Question 90, we asked if one of the statements set forth described well your feelings about the death penalty in a case of someone who's been proven guilty of murder, and you didn't think any of the available statements did, so then you wrote your own answer.

THE COURT: Okay. Would you add anything to it or qualify it in any way?

THE COURT: Let me turn to Page 25, Question 95 at the bottom. This is now more particularly focused on this case, and, "If you found this defendant guilty and you decided that the death penalty was appropriate, could you conscientiously vote for the death penalty?" and you said "No."

THE COURT: You've told us some of the reasons already. Anything beyond that, or would what you've already told us be the reasons?

THE COURT: Okay, any follow-up?

THE COURT: For some reason the form was missing Page 15. I don't know if anybody noticed it. Let me just run through the -- well, actually, let me ask counsel whether they want me to ask the questions or not. They're questions we haven't usually worried about. By the way, the form on the disk also is missing the page, so --

THE COURT: All right, let me ask two questions. I'll ask 46 and 47. No, I guess I don't need to ask 47. So, actually, go back to Page 14. So beginning with 44, we asked three questions about whether you had strong positive or negative views about different categories of people. We asked you whether you had positive or negative views about prosecutors. You said "None." Then we asked that about defense lawyers. You said "None." On the next question which is missing, the next question would have been, "Do you have strongly positive or negative views about law enforcement officers?" if you do.

THE COURT: I think we should, yes, sidebar mode.