4.Individual Voir Dire — Impartiality, Sentencing Views, and Hardship (Part 2)
939 lines(End of sidebar discussion.)
THE COURT: And I think that's it for now. Thank you. We appreciate it.
JUROR: Okay, thank you very much.
(Juror excused.)
(Break to change court reporters, 12:30 p.m.)
COURT CLERK: Juror No. 246.
JAMES MCALEAR: Juror No. 246.
(Juror No. 246 enters the courtroom.)
COURT CLERK: Right over here. Have a seat. Speak into the mic so everyone can hear you, okay?
JUROR: Okay. Sure will.
COURT CLERK: This is adjustable, so you can just move it around.
JUROR: Thank you.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thank you for being here. We appreciate your persistence in navigating.
JUROR: My pleasure.
THE COURT: So we're going to follow up on some of the answers you gave in your questionnaire when you filled it out before.
JUROR: Okay.
THE COURT: Let me just ask you, since that time have you been able to follow my instructions to avoid any discussion of the case?
JUROR: Yes, I have.
THE COURT: And as much as possible to avoid contact with any media reports about this case?
JUROR: Yes, I've avoided that.
THE COURT: Thank you.
JUROR: Sure.
THE COURT: Tell us about your employment.
JUROR: I am a senior contracts administrator for Johnson & Johnson, and I work in their relatively new office which is located in Kendall Square, Cambridge.
THE COURT: Okay. You have been doing that for a couple of years, I guess?
JUROR: Yes. I started in late July of 2013. And that office actually just opened up in April of 2013.
THE COURT: Okay. In the form we asked about use of social media. If you want to follow along, you can do that. I'm on page 10 at the bottom.
JUROR: Okay.
THE COURT: And if you want to take the clip off for convenience, you can do that.
JUROR: Sure.
THE COURT: It looks as if you use Facebook?
JUROR: Yes, I do.
THE COURT: And you both -- it says in Question 29 and 30, actually. They're kind of asking different things. 29 was focusing on whether you blogged or do anything like that.
JUROR: And I do not blog. I'm just very active on Facebook.
THE COURT: And "active" means you both post and see other people's postings?
JUROR: I do. And I have friends all over the world, and that's really my best means of staying in touch with them.
THE COURT: Okay. And in addition, for job-related matters you're on LinkedIn?
JUROR: I am, exactly, for networking purposes.
THE COURT: Does the company require that?
JUROR: They do not require it, but they strongly recommend that we have a LinkedIn account so that we can occasionally publicize what Johnson & Johnson has accomplished.
THE COURT: Okay. Page 15, Question 47 we asked about prior jury service. And you served, I guess, once in about 2003, you said, in a state case?
JUROR: Yes. It was a long time ago, and my memory of that may be a little sketchy. It was in Woburn. And that was my only experience, actually, serving on a jury before. It was a week-long trial.
THE COURT: Okay. And it was a criminal case?
JUROR: It was.
THE COURT: That resulted in a guilty verdict?
JUROR: Correct.
THE COURT: We asked on pages 17 and 18 various questions about potential current affairs, I guess is the general topic, a topical description.
JUROR: Uh-huh.
THE COURT: Attitudes about, perhaps, the War on Terror or the government's attitudes and so on, your personal experience with people of the Islamic faith and so on and so forth. The one I'm interested in is you trace some of your lineage back to Russia.
JUROR: Yes.
THE COURT: Can you just tell us a little bit about that?
JUROR: Sure. My dad was -- he's deceased now, but he was a first-generation American. Both of his parents were from Russia. And on my mother's side of the family, her great-grandparents were from Russia and Poland. I didn't know any of them. Actually, they all died before I was born.
THE COURT: What parts of Russia were they from?
JUROR: Ukraine and Lithuania, to the best of my knowledge.
THE COURT: And as you say, you didn't know any of them?
JUROR: No, I never met them. Uh-uh.
THE COURT: On page 19 we asked a little bit about how you reacted and perhaps how others around you reacted when you and they learned that you might be a juror in this case. You said -- at the end of your answer to Question 74 you said, "I welcome the opportunity to participate in such an important case."
JUROR: Yes.
THE COURT: Do you want to expand on that at all?
JUROR: Yeah, I don't -- although I welcome the opportunity, it's because I think it's important. And I think it's an important right that we have as citizens, but it doesn't mean that I'm kind of jumping up and down in my seat saying, "Oh, wow, this is great." I welcome it because I think it's a duty, and I would like the chance to exercise that duty realizing that there would be a lot of constraints to make that type of commitment. Nevertheless, I think it's important.
THE COURT: Okay. Let me ask you to turn to the next page and Question 77. In that question we asked whether prospective jurors had formed an opinion about certain matters based on things seen and read in the newspaper, and obviously this case has had a lot of publicity.
JUROR: Right.
THE COURT: And the first one -- I want to focus on A and B first before we go to C and D.
JUROR: Sure.
THE COURT: We asked whether you had formed -- based on the media coverage and so on, and other things, had you formed an opinion that the defendant was guilty, and you said, "Unsure but likely guilty."
JUROR: Right.
THE COURT: And then you expanded on that a little bit.
And then to the second one, "Have you formed an opinion that he was not guilty?" you checked "unsure" for that as well.
JUROR: Yeah.
THE COURT: Can you tell us what your thinking is about those --
JUROR: Sure. I think my thought was, you know, I recognize when I wrote that -- I think I was realizing that no one really should be termed guilty until their case is heard. So I kind of had that in the back of my mind. And I had also -- before I was even called for this case I knew that there was a potential impact that the older brother had played in terms of influencing the defendant, and in my mind I wasn't quite sure how that translated in terms of making the defendant really guilty or not. So that kind of left me feeling unsure to both questions.
THE COURT: Okay.
JUROR: Yeah.
THE COURT: So your prior jury service was in a criminal case.
JUROR: Yes, it was.
THE COURT: So you understand that in our justice system anybody who is accused of a crime is presumed to be innocent, or not guilty, until the government proves otherwise by the evidence at trial?
JUROR: Yes, I do.
THE COURT: And the proof has to be convincing enough that the jury is satisfied there's no reasonable doubt about the fact of the defendant's guilt.
JUROR: Absolutely.
THE COURT: Do you have any difficulty in applying those principles if you were a juror in this case?
JUROR: No. I'm aware of that, and I think I also had that in the back of my mind when I answered those questions. You know, I'm unsure because, you know, I don't know all of the facts of the case; I only know what the media has told us about the case. And because I don't know all the facts, I'm going to have to -- I cannot say for sure that the defendant is guilty or not guilty until I have a chance to know all the facts.
THE COURT: In the bottom part of that long question it begins, "If you answered yes to any of the questions." Of course you didn't.
JUROR: Right. I know.
THE COURT: We asked whether -- if you had an opinion based on things you'd seen or read, whether you would be able to set that aside and decide the case based solely on the evidence produced at trial. We asked would you be able or unable to do that, and you checked "able."
JUROR: Able.
THE COURT: Can you tell us about that?
JUROR: Yes. My expectation is that if I were a juror on the case, I believe I would hear information or learn information that no one else knew, and so I would then use that information to help me make my decision on whether the defendant was guilty or not. So I'm trying to kind of keep an open mind about that, so...
THE COURT: You also indicated that -- in the C and D parts of the question that you were also unsure whether -- if guilty of a capital crime that the defendant should receive the death penalty or not. You were unsure as to that as well?
JUROR: I think I was wondering about the motive, you know, whether he was influenced or whether it was kind of, for lack of a better word, willful intent. And in my mind I was kind of thinking, well, if it was willful intent, then I think he probably should receive the death penalty, and if it's something else, maybe influenced, then I was not so convinced that he should receive the death penalty. But I'd like to know more about the circumstances, and once I knew more about the circumstances, I believe I could say either way whether he should receive the death penalty or not.
THE COURT: We asked later on in the form some questions specifically about attitudes -- your attitude toward the death penalty. And if you'd turn to page 23, starting with Question 88, we asked if you had any views on the death penalty in general, and you wrote, "I believe the death penalty should be given in very serious, egregious crimes."
JUROR: Yes.
THE COURT: Is that -- that still remains your view?
JUROR: It is. And from what I know about this crime, I personally classify it as an egregious crime. I'd just like to know more about the motive of the defendant. But I do feel this is an egregious crime.
THE COURT: Okay. So you think this case might be one of the cases where you think as a general proposition it is important to consider the death penalty?
JUROR: Yes, I do.
THE COURT: Okay. The next question we ask you to kind of gauge how strongly you viewed the matter, from strongly oppose to strongly favor. You circled 6, which is sort of in the middle.
JUROR: Yeah. You know, in retrospect now that I think about it, I would probably rank it a little bit higher than 6, but I wouldn't say that I strongly favor the death penalty. I think the circumstances really have to warrant it. And so I think that's what I had in mind when I circled 6. Now, honestly, having the chance to think about it, I'd probably push it up to 8.
THE COURT: Okay. Well, let me have you look at the next question, Number 90, and there we ask you to select one of the statements, if you could, that best describe your feelings about the death penalty in a case involving someone who's proven guilty of murder. And of course when we're talking about the penalty, we are necessarily talking about someone who has already been convicted of an intentional murder.
JUROR: Okay. Gotcha.
THE COURT: Right? We don't get to the penalty question unless someone has been convicted of the intentional murder, right?
JUROR: I see. Uh-huh. That makes sense.
THE COURT: You selected D, which said you're not for or against the death penalty and could vote to impose it or vote to impose a sentence of life imprisonment without the possibility of release as you believe either was called for by the facts and the law in the case.
You seem to be a little stronger today in favor of the death penalty.
JUROR: Yeah, I feel that I am. I think when I circled D here I was really zeroed in on the sentence, whichever I believed was called for by the facts and law in the case. I think when I filled out this questionnaire, I was really tuned in and focused on, you know, the point that I really wanted to know the facts and the law before locking myself in one way or the other.
But I think what you're saying is assuming I knew the facts and the law, could I vote for the death penalty. And if that's the question, then the answer is yes, if I believed it was warranted.
THE COURT: Well, would you just take a minute and read E, F and G, which are options that begin, "I'm in favor of the death penalty," and they have different gradations there, and see if there's one of those that you think might now better express your views.
(Pause.)
JUROR: I think that E is probably a slightly better fit. I'm going to say E.
JUROR: Yes.
THE COURT: Which is that you are in favor of it, as you've told us here today --
JUROR: Yes.
THE COURT: -- but you could vote for a sentence of life imprisonment without the possibility of release if you believed that sentence was called for by the facts and the law in the case?
JUROR: Yes. And I think, again, I'm really focusing on my desire to know the facts and the law in the case, and that was kind of what was driving that response.
THE COURT: Let me ask you to go to the bottom of page 25, Question 95, and I'm going to ask you about 96 as well, which is the other -- sort of a companion question to 95. 95 is, "If you found this defendant" -- now we're going from general propositions, you know, the death penalty in general, your views about it. Focusing on this particular case, if you found the defendant guilty of a capital crime in this case and decided that the death penalty was the appropriate punishment, could you conscientiously vote to impose it in this case?
JUROR: Yes.
THE COURT: And 96 asks, as I say, the companion question: If you found the defendant guilty of a capital crime in this case and you decided that life imprisonment without the possibility of release was the appropriate punishment for him, could you conscientiously vote for life imprisonment without the possibility of release?
JUROR: And I said yes. And the reason I said yes to that was if I decided that life imprisonment without the possibility of release was the appropriate punishment, if I made that decision there would have been something triggering that such as his motivation when he committed the crimes or was he put up to it or did he do it on his own. I think the motivation of the defendant is what I would need to know. I would need to know more information about that.
THE COURT: Well, you heard me this morning describe the procedure that would be followed if he was convicted of a capital crime. The first phase determines whether he's guilty or not of what the crimes are that he's charged with. If there is a guilty verdict by the jury and if you were on the jury you would be part of that verdict.
JUROR: Right. Right.
THE COURT: If you found him guilty of a capital crime, then we would proceed to the penalty phase, as I've called it.
JUROR: Yes.
THE COURT: And the government would offer evidence of what are called aggravating factors, and that they might tend, to use your terminology, to show that it was an egregious offense, for example, and the defense would offer evidence of what are called mitigating factors. There are reasons like the absence of particular motivation, for example, that might argue against the imposition of the death penalty and in favor of life imprisonment instead.
If you were a juror in the case, despite what you may have in your mind as of this time, would you be able to consider and evaluate all that evidence of aggravation and mitigation and take it all into account and then make a decision based on your processing of that information --
JUROR: Yes.
THE COURT: -- rather than sticking with an idea that you may have at this point in time?
JUROR: Yes. In fact, my belief in the death penalty is not so strong that it overrules every circumstance in every single instance, so I would be able to decide.
THE COURT: Follow-up?
JUROR: I do believe that the death penalty is warranted in egregious crimes.
MR. WEINREB: Good afternoon.
JUROR: Hi.
MR. WEINREB: My name is Bill --
JUROR: Good afternoon.
MR. WEINREB: My name is Bill Weinreb. I'm one of the prosecutors in the case.
JUROR: Nice to meet you.
MR. WEINREB: You too.
I just want to follow up on one thing, which is you talked a lot about motivation --
JUROR: Yeah.
MR. WEINREB: -- that that's important.
And I think the judge just explained that if this case has a penalty phase, you'll hear evidence of aggravating factors, factors relating to the offense, things the government believes makes it worse than the average murder or the typical murder, if there is one, and you may hear things about the defendant that the government thinks makes this an appropriate case for the death penalty, and you'll also hear evidence from the defense about things that you may conclude make this an inappropriate case for the death penalty.
JUROR: Uh-huh.
MR. WEINREB: And those won't necessarily be limited to absence of motive; it might be evidence of something else that they consider mitigating.
JUROR: Okay.
MR. WEINREB: Are you able to enter the penalty phase with an open mind and listen to all that evidence and consider it?
JUROR: Yes.
MR. WEINREB: Think about it in making your decision?
JUROR: Yes. In fact, it's my desire for that information and to get the facts. That was kind of the motivating factor for me in wanting to participate.
MR. WEINREB: Thank you.
JUROR: Yes. Sure.
MS. CONRAD: Good afternoon.
THE COURT: I didn't know who to look to. Go ahead.
MS. CONRAD: Good afternoon.
JUROR: Good afternoon.
MS. CONRAD: My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
JUROR: Nice to meet you.
MS. CONRAD: Nice to meet you.
I thought you said something about, you know, you would be able to listen to what the evidence was because you recognize that you don't get all the information --
JUROR: That's right.
MS. CONRAD: -- from the media.
Would you -- if you didn't -- would you expect to hear something different from what you've heard before, and if you did not hear something different -- sorry. Let me go back. That's too many pieces in that question. Let's see if I could do this right this time.
Would you look to hear from the defense evidence that contradicted or differed from what you've already heard in the media?
JUROR: I am not sure that "contradicted" would be the right word for me, but I think I would be expecting supplemental evidence, insofar as that's the right word, that the general public wasn't aware of that would only be heard within the courtroom and that would, in effect, be reserved for a trial.
MS. CONRAD: So if you didn't hear such evidence from the defense and if the prosecution did not present evidence to prove beyond a reasonable doubt that the defendant was guilty of the crimes with which he's charged, would you still go back to what you've already heard and find him guilty?
MR. WEINREB: I object. That's too complicated.
MS. CONRAD: Well --
THE COURT: No, if you understand it.
JUROR: I think I understand it --
THE COURT: You may follow up.
JUROR: -- so I think I can take a stab at it.
I think that I would -- if I understand correctly, I think that I would base my decision on what I was hearing during the trial. And I think what you're asking me was if I didn't hear any extenuating circumstances that I wasn't aware of, would I go back and find him guilty. I would take that to mean that I had learned all the facts, and whatever those facts were that I had learned them, whether they were facts that I had heard before the trial or -- I would trust that all of the information was being brought to the trial for me to hear and I would then make the best decision I could.
MS. CONRAD: So you would still be considering what you've heard before the trial?
JUROR: I would do my best to not consider that.
MS. CONRAD: That's the question.
JUROR: Yeah, okay. All right. I understand.
MS. CONRAD: I understand it was difficult and I'm trying to put you in a situation you're not in right now --
JUROR: It was confusing. Got you.
MS. CONRAD: -- but we really just want to know as honestly as you can tell us whether you truly believe that that would not be in your mind or whether that would still be in the back of your mind.
JUROR: I can tell you that, knowing myself the way I do, I would do my level best to make my decision based on what I was hearing in court.
MS. CONRAD: I appreciate that. But my question is whether you are sure that you could do that.
MR. WEINREB: That's been asked and answered now several times.
THE COURT: Yeah, I think we'll take the last answer.
MS. CONRAD: Well, I'm sorry, but just to make -- maybe I misunderstood your answer. You said you would do your best, right?
JUROR: Yes.
MS. CONRAD: But do you think you would be able to do it?
MR. WEINREB: I object.
THE COURT: Well, you can answer that.
JUROR: I do think I'd be able to do it, yes.
MS. CONRAD: And I think you indicated that you'd heard or read a lot about this case.
JUROR: Yes.
MS. CONRAD: Can you tell us what you heard or read?
JUROR: I would say probably the -- I don't know anybody personally involved in the case at all. No one. When I looked at the list of names, I didn't know a single name. So to be honest, I've heard really what the general public in this area has heard.
MS. CONRAD: What?
JUROR: Anything that was on TV at the time, you know. The day that basically Boston was shut down, I was working at a job in downtown Boston that day, and I was one of the many people who was inconvenienced in terms of transportation issues. So really I've heard kind of what everybody else has, but I recognize that sometimes the media can be inaccurate. I can tell you that I recall hearing conflicting reports on aspects of this case depending on what channel I was watching.
This is going back to the time of the case.
MS. CONRAD: Sure.
JUROR: And I remember feeling frustrated, Well, those two things contradict each other. They can't both be right.
MS. CONRAD: Do you remember what it was that was the conflict?
MR. WEINREB: I object.
THE COURT: Yeah, sustained.
JUROR: So I remember feeling confused about the media reports, but I think it's safe to say that I've heard just about the same thing that most people living in this area have heard.
MS. CONRAD: Is there anything in particular that stands out that you heard?
MR. WEINREB: I object.
THE COURT: You can answer that.
JUROR: I'm trying to think -- different -- I can't tell you with clear preciseness, but I remember hearing conflicting reports about what the friends of the defendant heard at different times and where they were at different times, and I just remember not getting consistent reports from the media about that. That does stand in my mind. And I remember feeling aggravated at times and snapping the TV off and saying, Enough of this already.
MS. CONRAD: You mentioned -- I'm sorry. Were you finished?
JUROR: Yes.
MS. CONRAD: You mentioned that you were in downtown Boston at the time, I guess, of the -- that the bombing occurred or during the manhunt?
JUROR: I was working in downtown Boston on the day that the bombing occurred. I was not associated with the Boston Marathon; I was doing my job at work. And we all heard about it on the news, and people were told that they could start to go home earlier that day.
MS. CONRAD: And did you go home early?
JUROR: Yes, I did.
MS. CONRAD: And you said you were inconvenienced. Can you tell me a little more about that?
JUROR: Yeah, the trains were messed up. And I take a commuter rail, and for some reason the commuter rail was off schedule and we were waiting. And it took me double time to get home that day.
MS. CONRAD: How far away were you?
JUROR: I live in Stoneham, and I was working in downtown Boston. So my typical commute is to get on Downtown Crossing, go to North Station, switch from North Station to the commuter rail and go to the Reading Commuter Depot, which is right next to where I live.
MS. CONRAD: So how far were you away from the actual scene of the bombing?
JUROR: I worked in the Downtown Crossing area, so I wasn't -- I didn't even know anything was going on until people started talking about it.
MS. CONRAD: And did you shelter in place or were you not affected by that?
JUROR: We were not affected by that.
MS. CONRAD: And did you know anybody who was physically at the marathon that day?
JUROR: No, no one.
MS. CONRAD: Do you know the Nordens at all if you live in Stoneham?
JUROR: I know the name, and only since it's come out in the case and I thought, "Stoneham?" And I'm like, "Oh, wow. They live in Stoneham." I don't know them personally, no.
MS. CONRAD: Do you know anybody who knows them?
JUROR: No.
MS. CONRAD: You asked -- going to some of your -- the questions that you were asked about the death penalty.
JUROR: Yes.
MS. CONRAD: And you said it would make a difference to you if it was willful. Before the jury ever was able to consider whether or not to impose the death penalty or what the penalty should be, they would have to have found beyond a reasonable doubt that the defendant committed an intentional murder.
JUROR: Uh-huh.
MS. CONRAD: So if -- and you said this was the type of egregious murder that you think the death penalty should apply to.
MR. WEINREB: Objection. That's -- I don't think that's accurate.
THE COURT: Well, go ahead.
MS. CONRAD: So if the defendant were found guilty in this case of intentionally committing the crimes with which he's charged, would you automatically vote for the death penalty?
MR. WEINREB: Objection. That's a pre-commitment question.
MS. CONRAD: No, it's not.
THE COURT: No, you can answer whether it would be automatic or whether you would do it on the basis of your evaluation of the penalty phase.
MR. WEINREB: It's asking about this case in particular.
MS. CONRAD: Which was something that was already referred to in previous answers.
THE COURT: I've given it to you.
JUROR: Okay. So the word "automatically" confused me a little bit when you said "would I automatically vote for the death penalty," because I'm not quite sure I understand "automatically." And the reason I'm confused about it is "automatically" to me means off the top of my head, boom, that would be it. Would I do that without discussing with the other jurors or wanting to work through it with them? And I think it's the latter: I would want to work through it with them.
MS. CONRAD: Thank you. I appreciate that. I didn't ask the question --
JUROR: It's okay.
MS. CONRAD: -- in a fair way, so let me just rephrase that.
JUROR: Sure.
MS. CONRAD: Would you tend to vote for the death penalty unless you heard something from the defense that changed your mind?
MR. WEINREB: Objection.
THE COURT: Yeah. I think we've been over her --
MS. CONRAD: Okay. Let me ask a different question, then, that I don't think we covered. And I realize this has to do with your religious beliefs, and I realize that's a very private, personal thing.
JUROR: Sure.
MS. CONRAD: So I hope I'm not offending you by asking you that, and of course if you want those questions to be private, I'm sure the judge would allow you to do that.
JUROR: I'm okay with it. And I know there were questions of that nature also on the questionnaire, so I'm prepared.
MS. CONRAD: Okay. Okay. Thank you.
You said that you had talked to some church leaders about the appropriateness, if you will -- or about the church's position on the death penalty?
JUROR: Yes.
MS. CONRAD: So can you tell us a little bit more about, first of all, why you did that; and, second of all, what you took away from those discussions.
JUROR: Sure. So I'm actually a convert to the Mormon church. And the official name of that church is the Church of Jesus Christ of Latter Day Saints. And I believe in the church, and it's a huge part of my life, and so when I heard that I was called as a potential juror in this case, I did go to the leaders of my church and I asked them if the church has an official policy or stand on the death penalty because I didn't know the answer to that. And they told me that the church actually does not have an official policy or stand on the death penalty and they place that decision squarely in the hands of the individual members of the church.
And the reason I asked is because -- because the church is so important to me and my religion is so important to me, I wouldn't want to go against them. And so once they told me that they didn't have an official stand, I took that to mean that I'm able to -- I'm able to feel good about making my own decision, which I do.
MS. CONRAD: And did you do any research, online research, for example, about the church's position on the death penalty apart from what you just told us about?
JUROR: No. I knew that if I asked, they would give me the information I needed, and it was easier for me to do that.
MS. CONRAD: Sure. And if I could just ask you about part of what you wrote on page 26 in response to Question 98.
JUROR: Okay.
MS. CONRAD: You wrote, I believe, that people can be forgiven by God if they choose to repent. And I'm wondering how that plays into your views on the death penalty.
JUROR: Yeah. That's a strong religious belief of mine, and that's one of the things that the church I belong to teaches, that no matter how horrible the crime was, that a person can be forgiven by God if they really desire to be forgiven and if they repent; however, I'm not assuming that that is the situation in this case. But I'd be open to learning more about that if it were, and I think, you know, if a person were to indicate that they had repented, it might make me think twice about the death penalty. It's a tough call, to be honest with you.
MS. CONRAD: Can you -- can you tell me a little bit more about that? You said it's a tough call. It sounds like there are a couple of different things --
JUROR: Well, yeah. I stated that because it is such a firm religious belief of mine, and I feel like I've already explained how important the church is in my life. So I believe everyone has the ability to repent and be forgiven; however, I also believe they can be forgiven even under the circumstances of the death penalty.
MS. CONRAD: Can you tell me what you mean by that?
JUROR: It's just my own personal feeling. I believe that, you know, a person repenting doesn't necessarily mean that they will not be found guilty and be given the death penalty anyway, even if they repent.
MS. CONRAD: Thank you very much.
JUROR: Sure.
MS. CONRAD: I'm sorry. One second, please.
(Pause.)
MS. CONRAD: I'm sorry. Can I just ask one more question?
THE COURT: One?
MS. CONRAD: One. Just one. Thank you.
I'm sorry. I apologize.
JUROR: It's okay. No problem.
MS. CONRAD: In talking about looking to the defendant's motive and that being important to you, would you also be able to -- or would you consider facts regarding the defendant himself, his background, his age, his lack of a prior record, for example, in deciding whether to impose the death penalty?
MR. WEINREB: Objection.
THE COURT: It's a stakeout question, I think.
MS. CONRAD: Your Honor, respectfully, I --
THE COURT: No, I think so.
So anyway, we've had a very thorough examination of this juror.
MS. CONRAD: Well, can I just rephrase it?
THE COURT: No.
Thank you very much.
JUROR: Thank you very much. I appreciate it. Thank you.
COURT CLERK: You can leave that right there.
THE COURT: We'll take, I think, a break for lunch and resume at two. Does that sound about right?
UNIDENTIFIED ATTORNEY: Sure.
(The Court exits the courtroom and there is a recess in the proceedings at 1:07 p.m.)
(After the recess:)
(The Court enters the courtroom at 2:07 p.m.)
THE COURT: Okay.
COURT CLERK: Audio on.
THE COURT: We're ready. 250.
COURT CLERK: Juror No. 250.
JAMES MCALEAR: Juror No. 250.
(Juror No. 250 enters the courtroom.)
COURT CLERK: Sir, if you would sit over here, please, take a seat and speak into the mic.
JUROR: Okay.
THE COURT: Hi.
JUROR: Hello.
THE COURT: Since you filled out the questionnaire when you were here, have you been able to follow my instruction to avoid discussing the case with anyone?
JUROR: I have.
THE COURT: And to avoid, as much as you can, any exposure to media articles about the case?
JUROR: Uh-huh.
THE COURT: You have to say yes or no for the reporter.
JUROR: Yes.
THE COURT: She can only write down words.
JUROR: Yes. Hmm. Yes. Sorry.
THE COURT: If I could just get to the -- so this says -- we have, you know, the information you gave us about your employment. You are a designer for Boston Beer Company?
JUROR: Yes, I am.
THE COURT: Tell us what you do.
JUROR: I design point of sale for the sales force across the country.
THE COURT: What do you mean, point of sale?
JUROR: Banners, posters, menu cards, anything that they need to help sell their products.
THE COURT: Marketing media?
JUROR: Yeah, marketing media. Yeah.
THE COURT: And you've been doing that for about five years?
JUROR: Uh-huh.
THE COURT: Tell us about your use of social media.
JUROR: Very active, Facebook, Instagram, Tumblr. I have a big presence in a band. I do a lot of networking.
THE COURT: You're in a band?
JUROR: Yeah, I'm in a band. Yup. So we play in Boston.
THE COURT: So you do kind of promotion of the band on --
JUROR: Yeah, a lot of promotion, meeting a lot of people in the area and out of the -- out of state as well.
THE COURT: If you want you can follow along because we're going to follow up on some of these questions.
JUROR: All right.
THE COURT: I'm looking at page 10, Question 29. You said about blogging, you said, "Personal posts fairly frequently about my life."
JUROR: Uh-huh. Yeah, general. I guess it's -- yeah, it's all personal-based. It's my performance as an artist, musician, just everything that I've been up to, day-to-day activities, stuff like that, yup. Very transparent.
THE COURT: I'm looking at 30, which is the top of the next page, Facebook, Instagram, Tumblr very frequently, Twitter?
JUROR: Yeah, I don't use Twitter. Yeah, I don't use Twitter.
THE COURT: And have you blogged or posted anything about your being called for jury service or anything like that?
JUROR: I don't believe I did. I don't -- I don't think so.
THE COURT: You shouldn't --
JUROR: I don't remember talking about that to anyone.
THE COURT: -- just for your information.
Let me ask you to look at page 15, Question 46 at the top. We asked if you had strong positive or negative views about law enforcement officers, and you said, "I believe some law enforcement officers are power hungry and lose sight of being objective."
JUROR: Yup. I think that it's -- I mean, it's sort of the spectrum of the role. There are certain people in law enforcement that overstep their bounds and certain ones that are not. But from, I think, currently what I've been exposed to has been a lot of that as of late. So that's just --
THE COURT: Personally?
JUROR: No, media. Definitely media, friends.
THE COURT: You're talking about things like Ferguson and things like that?
JUROR: Yeah, sort of on that line, and just around me, everything friends and family are displaying, posting. It's been a lot of, you know, more negative things, so it's been as of late. But I think -- I don't think that everyone is power hungry, but...
THE COURT: Obviously in a criminal prosecution, as this is, there will be a lot of law enforcement people involved in testifying.
JUROR: Yup.
THE COURT: Would your feelings in this respect have any skewing effect on your ability to be a fair-minded judge of their evidence as well as everybody else's?
JUROR: Only if they seemed aggressive, maybe.
THE COURT: Depending upon the individual?
JUROR: Yeah, depending on the individual. Absolutely. It is on an individual basis. I don't think that all of them are as such.
THE COURT: So it's not a categorical basis for you?
JUROR: Yeah, it's personal. It's definitely just a general feeling, I guess.
THE COURT: With respect to any witness with any background --
JUROR: Absolutely.
THE COURT: -- who testifies, we ask you to evaluate the witness's testimony. You may find it believable; you may find it unbelievable.
JUROR: Absolutely.
THE COURT: As long as you do it on an individualized basis.
JUROR: Yup.
THE COURT: Actually, just because of something you said, we had asked you earlier on, and this is page 5, Question 10, describing the schedule in the case and so on and so forth, whether it was an unusual hardship for you. Obviously it's going to be a burdensome proposition for anybody who serves on the jury to serve on a long case like this.
I had been -- and you answered no, and I've been thinking of that in light of what your employment is and so on and so forth, but you just described your musical activity. Would that have any impact on your service?
JUROR: Yeah, it would. It would.
THE COURT: Do you tour or anything like that?
JUROR: Yeah, currently we're in the phases of working on a tour on the West Coast this summer. The end of this summer.
THE COURT: The end of the summer?
JUROR: Yeah, more August time. August-September.
THE COURT: Before then it wouldn't be a problem?
JUROR: Yeah, before then we're just sort of focusing on fund-raising and playing around locally.
THE COURT: You won't be away?
JUROR: Yeah, we're not playing away. We're playing locally, yeah. Yup.
THE COURT: On page 20, Question 77, on this we asked whether on the basis of what you'd seen or read in the news media or what you'd learned from other sources you had formed an opinion, A, that the defendant was guilty; B, that he was not guilty, and then we'll go on to the penalty in a minute, but I wanted to ask about those two.
So you indicated that you do have an opinion based on what you've seen in the media about whether he's guilty.
JUROR: Yeah.
THE COURT: Below we asked -- if you'd answered yes to any of those questions, which you had, we asked whether you thought you would be able or unable to set aside that opinion and base your decision about guilt and punishment solely on the evidence presented in court in the course of the trial, and you checked "able."
JUROR: Yup.
THE COURT: Okay?
JUROR: Yup.
THE COURT: Can you give us what you were thinking about when you made that choice?
JUROR: I mostly appeared as I needed to be objective, but it's difficult because, I mean, I can't -- I know as a juror I would have to be objective and to come in and be ready to take the evidence as it is, but at the same time I feel like everything that has happened, it's incredibly hard to refute how I feel and how the media has portrayed everything. And so I still -- I feel the same way. I would ultimately try to be able to do that, but that's really a hard position to take, I guess.
THE COURT: Well, what we ask jurors to do, as you recognize, I think, is to pay attention to the evidence as presented in the trial, focus on that evidence, because in the process that's the evidence that must prove the defendant guilty or he is not guilty. He can't be declared guilty on the basis of something that isn't in the trial.
JUROR: Absolutely.
THE COURT: So the question is: It may require some mental discipline to do that, and some people may be able to do it and some people may not. And so we're looking for kind of a self-assessment whether you think you could -- for the purposes of deciding the issues in the case as they're presented, whether you could focus only on that body of evidence, whatever it may be -- we don't know what it may be necessarily at this stage -- and make a decision focused on that or whether what you think you know from other sources would interfere with your ability to focus only on the trial evidence and make a decision just on that.
JUROR: Yeah.
THE COURT: I know it's a prediction about what you do in the future.
JUROR: Yeah, it's difficult to understand. I feel slightly determined already as to how I feel, so it would be difficult to be utterly objective as if I had never heard of this situation before.
THE COURT: Okay. Do you work in an office or a location? Where is it, what city?
JUROR: Boston.
THE COURT: So were you there when the events occurred?
JUROR: Yes, I was working in our Boston office when the events occurred, and I had coworkers down at the marathon that day because we are the official beer sponsor of the marathon.
THE COURT: Okay. Were they people you had worked with on -- I imagine there was some promotion going on.
JUROR: Yeah, yeah, they were up and down the route passing out point-of-sale pieces.
THE COURT: Some of your stuff?
JUROR: Yeah, some things we'd designed. And then we have, like, an after party afterwards. Everything, of course, was cancelled, but...
THE COURT: And that Friday when people sheltered in place, do you remember that? Were you in Boston when that happened?
JUROR: I was, actually. I drove into the city because I had a Zipcar at the time and I needed to bring it back in the morning, and later that day Zipcar said that you didn't have to because of the events that were occurring. But anyways I drove in to Boston, and I was at work that day when -- yup.
THE COURT: Beginning on page 23 we asked a series of questions about your attitude toward the death penalty.
JUROR: Uh-huh.
THE COURT: 88 was a general question, do you have any views about it in general, and you said, "I don't think we have the right or justification to murder people even for heinous crimes. An eye for an eye makes the whole world blind."
JUROR: Yeah.
THE COURT: That's your general view of the death penalty.
JUROR: Yeah, I do feel...
THE COURT: Actually, the next question we ask you to kind of indicate on the scale of 1 to 10 from strongly oppose to strongly favor, and you circled Number 3.
JUROR: Yup. It's -- I mean, yeah, I still feel the same way. It's very -- I understand that we're going to kill people, but I don't necessarily agree with the -- you know, with the death penalty, with that as a form of punishment.
THE COURT: Right. It just struck me that there might be a little bit of difference between what you wrote in 88 and what you wrote in 89.
JUROR: Uh-huh. Because I didn't choose 1 or --
THE COURT: Well, yeah.
JUROR: Yeah. Yeah. True. I understand. It might as well be 1, then. I just...
THE COURT: I'm not telling you to choose 1.
JUROR: Yeah, yeah, yeah, I know.
THE COURT: I'm actually trying to get at whether you are more a 3 than a -- in answer to Question 88 -- or whether you're more a question -- answer to Question 88 than you are a 3.
JUROR: I get you.
THE COURT: Which is really a better description of you, if either? There may be a third possibility.
JUROR: No, I think 88 is -- that is my views on the death penalty. I haven't believed in that for a long time. Ever since I was little, I always thought it was just one way to perpetuate negativity in the world, so it hasn't been something I believe in. But I understand it as well and I know -- that's why I probably gave it a 3, but it should be less for sure.
THE COURT: When you say you understand it, you mean you understand why society might choose to have it available. Is that what you mean?
JUROR: Yeah. Yeah.
THE COURT: Would you look at Question 90 on the next page. Here we asked -- rather than circling a number, we asked you to choose a statement that you thought described your feelings about the death penalty in a case where a person has been proven guilty of murder. I mean, that's the premise, of course, you can't get to the penalty until you've convicted someone of murder.
So here, again, you didn't select the most extreme; you selected B, which was "I'm opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it."
JUROR: Yup. And I've had more time, I guess, to think about it after we've done this, and I didn't really anticipate that day necessarily what I was going to be answering. And that was an intense one. I've never had the situation of having to decide that -- decide someone's fate.
So the more thought I put into it the more I thought this is definitely something that I wouldn't -- I don't believe in and it would be -- like I said, it would be incredibly difficult. So it's something that I really would not be considering.
THE COURT: So could you -- I guess that's the question: Could you conscientiously consider voting for the death penalty if you thought that the case had been made for it?
JUROR: I wouldn't agree with it. Yeah, I would not agree with it. If the case had been made for it, I would not agree with death.
THE COURT: Follow-up anybody? No?
MR. WEINREB: I don't think so.
THE COURT: Okay. Thank you.
JUROR: Thank you very much.
JAMES MCALEAR: Thank you very much, sir.
(The juror is excused.)
COURT CLERK: Juror No. 251.
JAMES MCALEAR: Juror 251.
(Juror No. 251 enters the courtroom.)
COURT CLERK: Sir, you're going to come right over here, please. Have a seat right over here and speak into the mic so everyone can hear you. That would be great.
THE COURT: Hi.
JUROR: Hi.
THE COURT: Thank you for your patience. We appreciate it.
That's the questionnaire you filled out when you were here last time. We put it there because we may refer to it as we follow up on some of the answers that you've given.
JUROR: Okay.
THE COURT: First of all, let me ask, have you been able to follow my instructions not to discuss the case or your possible participation in it other than to tell people you're here?
JUROR: I haven't said anything.
THE COURT: And have you been able to avoid news stories about the case?
JUROR: Yes.
THE COURT: Okay. Good. Thank you.
Looking at page 10 of the report, we asked about your employment. I actually couldn't quite read your writing.
JUROR: Okay. Yeah, most people can't. I work at Titleist. I am a flex associate. I do several different jobs.
THE COURT: Okay. Can you just tell me what the words are there and then we'll --
JUROR: Stylus finish side flex.
THE COURT: Finish side flex?
JUROR: Yes.
THE COURT: So now tell us what that means.
JUROR: I do several different jobs finishing the golf balls for Titleist.
THE COURT: You're on the finish side of the production process?
JUROR: Yes.
THE COURT: All right. What are the kinds of jobs you do?
JUROR: I'll do inspection; we will spray the balls, prime or clear; we could do pressure buffs, which gets the balls ready to be primed or cleared; buffing, which you buff up the line going around the balls' molding.
THE COURT: Okay. Let me ask you about your compensation. Is this an hourly-wage job?
JUROR: Yes.
THE COURT: If you were here for three or four months on jury duty, would that impact your wage earning?
JUROR: I mentioned it to them, and they said that I would be fully compensated for the whole time because they didn't pay me for the 5th when I went because we were actually not working.
THE COURT: So you've been assured that you won't lose any income by serving?
JUROR: I would ask again, but he said I would --
THE COURT: No, okay. If you think you got an answer, I just -- you and your boss are the ones that know, and I just want to know what you think the answer is and you told us so.
All right. Moving on. You use Facebook daily?
JUROR: Yes, pretty much.
THE COURT: What do you do?
JUROR: Just see whatever my friends have put on it.
THE COURT: Do you post things sometimes?
JUROR: Periodically I'll put something. If I got a funny joke sent to me, I'll send it back, but I'm not really into the whole thing.
THE COURT: Okay.
MS. CONRAD: Sorry. I just couldn't hear the last answer.
THE COURT: Would you say that again just so --
JUROR: I'm not really into the technology stuff, but you've got to go with the flow a little bit, so...
THE COURT: Okay. Let me ask you to look at page 20, Question 77. In this question we asked whether, based on things you'd seen or read in the news or learned otherwise, had you formed an opinion that the defendant is guilty or that he is not guilty and that he should receive the death penalty or that he should not receive the death penalty, and to each of those questions you checked that you are unsure. Let me focus on the first question and the companion one to that, which is the second.
Can you tell us what your thinking was as you decided that "unsure" was the right answer for you to give to that question?
JUROR: I really do not watch the news. I mean, I see what's on at work because it's on. And so I really never really thought much about that. I didn't even know I was here for this when I came here on the 5th. That's why I did not know what to put.
THE COURT: Okay. So a possible answer under those circumstances would be no, you don't have an opinion, or is your -- so you probably heard something about the case.
JUROR: Oh, yes, I did, because I had seen some of the stuff at work, but I don't --
THE COURT: But not enough for you to have an opinion?
JUROR: I honestly just didn't know what to put. That's why I put that.
THE COURT: Okay. Well, let me ask you this: If you were a juror in the case we would ask you, as all the other jurors, to listen to the evidence presented in the case. In a criminal prosecution, a defendant is presumed to be not guilty, or innocent of the charge, unless the government proves that he's guilty by the proof at the trial, right? Do you understand that?
JUROR: Yes.
THE COURT: So we call it the presumption of innocence. And what it really means is that the government has the burden of providing enough convincing information to the jury that they, at the end of the case, would conclude that the government had proved the person guilty of the crime charged, and that they would have to have that conclusion without any reasonable doubt about whether it was the proper conclusion or not. They would have to be convinced beyond a reasonable doubt that the person was guilty.
Do you understand that?
JUROR: Yes.
THE COURT: The burden is always on the government. A defendant doesn't have a burden to prove he's not guilty. So if the question -- the question is not which side has convinced me but has the government convinced me beyond a reasonable doubt that this person is guilty of what he's charged with.
Would you be able to faithfully apply those principles in deliberating on the evidence in this case if you were a juror?
JUROR: I think so, yes.
THE COURT: We also asked a series of questions about the -- well, let me just preface that by saying in the second part of 77 there were two questions about your attitude towards the death penalty, or whether you formed an opinion about the death penalty for this case, and you said "unsure" to both of those. Later on we asked some questions about your attitude to the death penalty generally and perhaps specifically.
Would you turn to page 23? Question 88 we asked if you had any views on the death penalty in general, would you tell us what they are, and you said, "If found guilty, the punishment should fit the crime."
JUROR: Yes.
THE COURT: That doesn't really directly answer the question. Do you have any specific views about the appropriateness of the death penalty as a general matter?
JUROR: I really didn't know what else to put. If something was done that was really, really wrong and this is what the punishment was, then it should be.
THE COURT: Okay. In the next question, 89, we asked you to tell us where on a scale of 1 to 10 you might put yourself, with 1 being strongly opposed to the death penalty and 10 being strongly in favor, and you selected 5. Can you tell us what you were thinking when you did that?
JUROR: Again, I would need to have more information to know which way I'd want to go. I couldn't base it on what I know because, like I said, I'm not a big media person. I don't watch the news.
THE COURT: We're not necessarily talking about this case in that question but as a general matter about the policy of having a death penalty or whether it's a good idea or bad idea to punish people by sentencing them to death and so on. So this is really more your general views than your view about this particular case.
Do you have any -- and maybe you don't. I mean, I'm just asking whether you think you're somewhere in the middle of opposing and being in favor, which is what the 5 seems to indicate.
JUROR: I would think it would depend on what the crime was, that's why I think I put the 5, because I really didn't know which way I would go. It depends on why.
THE COURT: Okay. Turn to the next page, 24, Question 90. In this we asked if one of the statements listed described your feelings about the death penalty in a case where someone had been proved guilty of murder, and you didn't make a selection. I don't know if it was an oversight.
JUROR: I think it was an oversight. I tried to be careful.
THE COURT: Would you take a minute to read through it carefully now? And take your time because I want to be sure you've absorbed it before -- at the end I'm going to ask you if there's one that you would select.
JUROR: Okay.
(Pause.)
JUROR: I think maybe D.
JUROR: Yes.
THE COURT: "D" as in "David"?
JUROR: Yes.
THE COURT: That says, "I am 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 was called for by the facts and the law in the case." Is that your view?
JUROR: Yes. Yes.
THE COURT: So you wouldn't have any predetermined commitment to either the death penalty or life imprisonment in a given case; you would wait to hear what's presented and then make a decision?
JUROR: Yes.
THE COURT: You heard me this morning talk about the process a little bit, about how after someone's found guilty for a crime for which the death penalty might be imposed we go to the penalty phase, and the government would produce evidence of aggravating factors that might make this seem a worse crime than others -- other crimes of murder?
JUROR: Yes, I recall.
THE COURT: And then there would be mitigating evidence presented by the defendant that might say this is not a case that needs the death penalty; that life imprisonment is an appropriate sentence?
JUROR: Yes.
THE COURT: And so are you prepared to listen to all of that and make an individualized decision based on your assessment of that evidence?
JUROR: Yes.
THE COURT: And finally, if you'd look at 95 and 96, the bottom of page 25 and the top of 26, they're kind of a pair of questions together. This now -- it comes away from the general a little bit to the specific and says if you found this defendant guilty and you decided the death penalty was the right punishment -- appropriate punishment for him, could you conscientiously vote to impose the death penalty, and you said yes.
JUROR: Yes.
THE COURT: Do you see that?
Then at the top of the next page we asked the other side of that question: 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 said yes to that, right?
JUROR: Yes.
THE COURT: And that's your view as to both of those?
JUROR: Yes.
THE COURT: Any follow-up?
MR. WEINREB: No, your Honor.
MS. CONRAD: I do. Thank you.
THE COURT: Okay.
MS. CONRAD: Good afternoon, sir. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
Let me just ask you a few questions, if I might. Going back to Question 77 on page 20, I'm not sure if I understood your answer or maybe I was just having a little trouble hearing you at that point, but I thought you said something about, well, you didn't even know that the summons was for this case.
But the question is not what your verdict would be if you were a juror in this case but whether you have an opinion, or had an opinion, even, before you got your summons about whether Mr. Tsarnaev was guilty or not. So taking out of it sitting as a juror, just do you have an opinion?
JUROR: No, because I don't know all the facts. How am I going to make an opinion?
MS. CONRAD: Well, you did say in Question 74 -- 73, excuse me -- that you had seen a moderate amount of media coverage in this case.
JUROR: I seen it at work, which I'm in the break room 10 to 15 minutes three times a day.
MS. CONRAD: Okay. I'm just asking you, sir. I'm sorry. I'm just trying to find out what you've seen about this case and how it might affect your thinking about the case.
JUROR: Okay.
MS. CONRAD: So can you tell me what you have seen or read about this case?
MR. WEINREB: Objection.
THE COURT: Well, no, go ahead. You can -- in general terms.
JUROR: Honestly, I don't -- it was, what, over a year ago? So, I mean, I don't live around here so I wouldn't -- I didn't pay as much attention, probably, to people that live up here, but I know something bad happened.
MS. CONRAD: Okay. Anything else that stands out in your mind?
JUROR: No, just what was on TV for the few days that it was.
MS. CONRAD: So you did watch some of the reports on TV?
JUROR: In the break room at work, yeah. The TVs are on. There's three TVs.
MS. CONRAD: Sure. And you also get some news from the Internet?
JUROR: I don't have anything listed on my thing. I just get whatever comes up on my phone.
MS. CONRAD: Yeah. But, no, you said on 68 "What is your primary source of news?" you said the Internet.
JUROR: That's my phone.
MS. CONRAD: I'm just asking you --
JUROR: Maybe I wasn't -- I really don't watch the news, okay? Whatever comes up on my phone -- if I see something that's posted, then I'll read it. That's it. I'm not chasing after anything.
MS. CONRAD: Sir, I'm sorry. I didn't mean to suggest that you were. I'm just trying to find out what you might have seen or heard about this case.
JUROR: Well, I said Fox at work too. On 71? Yeah, that's where I've seen it, is Fox at work. They have Fox at work in the break room.
MS. CONRAD: Were you at work on the day of the bombing?
JUROR: I honestly couldn't tell you. I don't remember. What day was it on, what time? I work second shift.
MS. CONRAD: April 15, 2013.
JUROR: What time?
MS. CONRAD: About 2:30, 2:40 in the afternoon.
JUROR: I would just be going to work.
MS. CONRAD: Okay. And you don't remember -- do you not remember how you found out about the bombings?
JUROR: Probably at break while the TVs were on.
MS. CONRAD: It wasn't something that people were talking about when you got to --
JUROR: I would just be going to work at three o'clock. I'm not with a bunch of people.
MS. CONRAD: Okay. You said in your answer to Question 31 that you were in the U.S. Army for three years?
JUROR: Absolutely. 82nd Airborne.
MS. CONRAD: Okay. And where were you stationed?
JUROR: I was stationed down at Bragg in North Carolina, and then I went to Fulda, Germany, for a year and a half. The first of the 11th Cav.
MS. CONRAD: I'm sorry?
JUROR: First of the 11th Cav.
MS. CONRAD: So, I'm sorry, I don't know much about this, but is 82nd Airborne and 11th Cav two different things?
JUROR: Yes, they are. They're two different assignments.
MS. CONRAD: Okay. And did you see combat at all?
JUROR: No, I did not.
MS. CONRAD: And are you aware -- well, let me rephrase that. If you were to hear evidence in this case that one of the -- or a possible motive for the bombings was related to military action by the United States overseas, would your past military service affect the way that you viewed that evidence?
JUROR: I don't know. I'm pretty proud of my service for this country, so maybe it would.
MS. CONRAD: So would it make it harder for you to be impartial?
JUROR: I don't think so.
MS. CONRAD: You said that you -- I think in your questionnaire that you are on Facebook on a daily basis?
JUROR: Yes.
MS. CONRAD: Is that also on your phone?
JUROR: That is my phone. That's what I use.
MS. CONRAD: And have you ever posted anything on Facebook about political issues?
JUROR: No, I'm not into politics.
MS. CONRAD: And have you ever posted anything on Facebook about Muslims?
JUROR: I've never posted anything, no. I do have a lot of friends that are military that still are. I mean, I get all kinds of stuff on my phone from whatever they send. I have no control --
MS. CONRAD: So you're telling us you've never posted anything about political issues?
JUROR: Political? No, I don't think so. I'm not really into the politics.
MS. CONRAD: Okay. I just want to show you something, if I might.
JUROR: You can -- if my friend sent it to me, I might have sent it back out, which I probably did.
MS. CONRAD: I'm sorry. Are you saying you never sent back out something --
JUROR: No, no, I'm saying if I get something and I think it's funny, I'm going to probably send it back out, absolutely.
MS. CONRAD: And have you sent anything back out that relates to Muslims?
JUROR: Yeah, probably.
MS. CONRAD: And what have you sent back out?
JUROR: I couldn't tell you offhand.
(Pause.)
MS. CLARKE: Do you want to mark it?
MS. CONRAD: Sure. One's for him and one's for the judge.
Could I have that marked, please?
COURT CLERK: I'm sorry?
MS. CONRAD: Could I have that marked, please?
COURT CLERK: What do you want it marked as, 1 or A?
MS. CONRAD: Sure. Either or both.
COURT CLERK: Defendant's 1 is marked for identification.
(Defendant's Exhibit No. 1 marked for identification.)
MS. CONRAD: Do you recognize the image?
JUROR: Absolutely.
MS. CONRAD: And that's something that you posted.
JUROR: That's something that somebody sent me and I put it back out, yes.
MS. CONRAD: All right. Can you explain to me -- or describe what that depicts?
JUROR: The same thing that's happening to -- actually, I don't really read this part of it. I don't understand what that is, but I'm assuming it's going to the bathroom on something.
MS. CONRAD: So it depicts -- it's a cartoon of a boy with the American flag urinating on something.
JUROR: Whatever that is, yeah.
MS. CONRAD: And -- well, it has some Arabic writing on it, right?
JUROR: I don't read Arabic, but, yes, you're right.
MS. CONRAD: So what was in your mind when you posted that?
JUROR: It was funny when I got it, and I sent it back out.
MS. CONRAD: But what did it --
JUROR: I didn't create it; I just sent it back out the same way I got it.
MS. CONRAD: Actually, it was your profile picture, right?
JUROR: Yeah, at one time it was. It was funny.
MS. CONRAD: So you changed your profile picture to this image?
JUROR: If you go back and check, I change my profile picture probably every week.
MS. CONRAD: Sir, I'm sorry. I'm just asking whether, in fact, you changed your profile picture.
JUROR: Yes.
MS. CONRAD: And when you changed your profile picture to this image, what did you intend to convey?
JUROR: To get a laugh, just like I got a laugh when I got it.
MS. CONRAD: Okay. And you thought it was funny why?
JUROR: Because it's just funny.
MS. CONRAD: Were you trying to make a statement about Muslims?
JUROR: No. Do you know what? Maybe I was. I don't know.
MS. CONRAD: Well, sir, only you know. That's why I'm asking.
JUROR: Yeah, I don't know. I thought it was funny. There's a lot of stuff -- if you've got my stuff there, then you'll see there's a lot of funny stuff on there.
MS. CONRAD: Yeah, there's a lot of stuff about politics too --
JUROR: That stuff is whatever gets sent to me. I'm not into politics. Do you know what? If you knew me, you'd know.
MS. CONRAD: But you frequently changed your profile --
JUROR: I always do. It's a joke. It's Facebook.
MS. CONRAD: Okay. But, sir, we asked you some questions in the questionnaire about whether you have strong feelings, for example, about Muslims, right?
JUROR: My feelings have got worse and worse with ISIS --
MR. WEINREB: Excuse me, sir, for a moment.
I object on the grounds that this is both -- this is not a cross-examination; it's an attempt to just elicit information by asking open-ended questions. Also, it's badgering the witness.
THE COURT: Yeah, I think the point's been made here.
MS. CONRAD: Well, I would like to go, then, to one of the questions in the questionnaire. And I think you started to say something. I would like to hear the rest of your statement.
THE COURT: No, ask the question.
MS. CONRAD: I'm sorry?
THE COURT: Ask the question in the questionnaire.
MS. CONRAD: Okay. So you were asked on the questionnaire if you have strongly held thoughts or opinions about Muslims or about Islam, and so I'd like to ask.
THE COURT: This is Question 59 on page 17.
JUROR: Yes. And I answered no because I don't know any.
MS. CONRAD: No, that's Question 58. My question is about 59.
JUROR: Okay. And I said no.
MS. CONRAD: I understand you said no. My question is: As you sit here today do you have any thoughts or opinions about Muslims?
JUROR: Just as much as anybody else does. Now it's even more, I guess. But when I read this, I think I read it a little bit different. I don't have an opinion unless you're doing something to hurt an American, then I will have an opinion.
MS. CONRAD: Okay. Why don't you tell me what that opinion is?
JUROR: What do you mean, an opinion? If you're hurting a U.S. citizen, why wouldn't I have an opinion?
MS. CONRAD: Sir, I didn't -- I'm sorry. Maybe I'm not asking the questions the right way. Please understand that I'm not trying to dispute your opinions or argue with you; I'm just trying to find out what those opinions are.
JUROR: Okay. If a Muslim is taking the head off of a U.S. citizen, I will have an opinion. Is that what you mean? If something's going to give me that opinion, yeah, that would give me an opinion, a strong one. But when I read the question I said no because I didn't really have that much of an opinion. Most of my stuff on Facebook is a joke because it's Facebook.
MS. CONRAD: Sir, I didn't say anything about Facebook in this last question. I'm asking you about your opinions about Muslims.
JUROR: And I just said --
MS. CONRAD: So my question is -- and again, I'm really just trying to find out how you feel. And we really just want you to be honest about your opinions. It's not that your opinions are right or wrong or people might agree or disagree with them; it's just about whether you can honestly tell us what those opinions are.
So my question is whether your obviously strong feelings, which you're completely entitled to, about the military, about terrorists, whether those influence your views about Muslims generally.
MR. WEINREB: Objection. I think that's a -- that's not a -- it's a question whose premise suggests --
MS. CONRAD: Well, I'll strike the premise, your Honor, and I'll ask the question again.
What, if any, opinions do you have about Muslims generally?
JUROR: I really don't know any, so I don't. But if they're hurting U.S. citizens, I have an opinion.
MS. CONRAD: What, if any, opinions do you have about the religion of Islam?
JUROR: I know nothing about it.
MR. WEINREB: Objection.
JUROR: No, I'll answer. I know nothing about it.
THE COURT: Well, that was an answer to the question. Anyway, I think you've made your point.
Do you have another area?
MS. CONRAD: Sure.
Question 63 asks whether you have feelings -- strong feelings about laws or government policies concerning legal immigration.
JUROR: Why would I have feelings about legal immigration? I mean, someone's coming into this country legally? I'm asking.
MS. CONRAD: Sir, the question is just what the question is. Just please understand we don't know you when you walk in the door here. We're trying to find out what some of your thoughts and opinions are. So really, it's just -- the question is just do you have any strong feelings about legal immigration.
JUROR: No.
MS. CONRAD: Do you have any -- have you posted anything about immigration?
JUROR: I don't know. Probably if I got something funny, I probably sent it right back out.
MS. CONRAD: Or changed your profile picture.
JUROR: Probably. I do it all the time.
MS. CONRAD: And --
JUROR: It's Facebook.
MS. CONRAD: You said in response to Question 44 -- excuse me -- 74, this is on page 19 -- sorry -- and 75 -- that when you got the summons you didn't know it was for this case?
JUROR: I said I did not know until I got up here.
MS. CONRAD: Right. So when you realized it was for this case, how did you feel?
JUROR: I don't really recall. I know it's a burden to me to drive from Fairhaven up to here, especially through traffic, and that would have been something that was on my mind just like today.
MS. CONRAD: I'm asking about how you feel about jury service in this case.
JUROR: Right now?
MS. CONRAD: Yes.
JUROR: I don't know. I'm here. They asked me to be here. I would be honest as much as I can. You don't know my jokes are my jokes, whatever. But that's all I know.
MS. CONRAD: One moment.
(Pause.)
MS. CONRAD: Sir, regarding your views on the death penalty which the judge asked you about, I may have gotten this wrong so let me just make sure I've got it right. You said it would depend on the crime, right?
JUROR: Yes.
MS. CONRAD: Okay. And you understand that -- or do you understand that the death penalty wouldn't even be an issue unless the defendant were found guilty of an intentional murder?
JUROR: Okay. Honestly, I didn't even know Mass. had a death penalty. But under different circumstances, no, I didn't know.
MS. CONRAD: Sir, I'm just asking you when you say it should fit the crime, do you think the death penalty should be imposed in any intentional murder?
JUROR: Yes.
MS. CONRAD: Thank you.
THE COURT: Okay, sir. Thank you. You may step out. Just leave the form right there.
JUROR: You can keep my joke.
COURT CLERK: Just leave that right there.
(The juror is excused.)
COURT CLERK: Juror No. 255.
JAMES MCALEAR: Juror 255.
(Juror No. 255 enters the courtroom.)
COURT CLERK: Ma'am, over here, please. And if you would talk into the mic so everyone around the table can hear you, that would be great.
JUROR: Okay. Thank you.
THE COURT: Good afternoon.
JUROR: Hi.
THE COURT: Thank you for your patience.
Since you were last here when you filled out the questionnaire, have you been able to follow my instructions to avoid discussing the case with anybody?
JUROR: Yes.
THE COURT: And also to avoid, as much as you can, any media reports about the case?
JUROR: Yes.
THE COURT: So I do want to follow up on some of the answers in your questionnaire, and you can follow along as we do that. I just wanted to ask you first about your work, where you're employed and what you do and so on. Can you just tell us briefly?
JUROR: Sure. I'm in the social work field. I currently work for a nonprofit, and I do work with children and adolescents that have mental health conditions. And I work with them one-on-one. I bring them into the community and help them develop skills.
THE COURT: Okay. Daily-living skills, that kind of thing?
JUROR: Yup. Yup. Just coping skills, daily-living skills.
THE COURT: We asked jurors about use of social media.
JUROR: Yes.
THE COURT: And that's in Questions 29 and 30.
You say you have a Facebook page but you don't post anything; you use it just to keep up with what other folks are posting, I guess.
JUROR: Yup.
THE COURT: Is that right?
JUROR: Yes.
THE COURT: And you say also you have a Twitter account you don't use?
JUROR: Yes.
THE COURT: Do you check that -- anybody else's Twitter feeds or anything?
JUROR: Infrequently, just once in a while.
THE COURT: Do you use it to follow news events or anything like that?
JUROR: I haven't in the recent past.
THE COURT: So let me jump ahead to page 19.
JUROR: Uh-huh.
THE COURT: At the bottom two questions, 74 and 75, we asked a little bit about your reaction, and maybe your friends' and family's reaction, to your getting a summons and when you realized it might be this case.
JUROR: Yes.
THE COURT: To 74 you said you were worried about missing work but was interested in what the experience would be like.
JUROR: Uh-huh.
THE COURT: Can you tell us a little bit more about that answer?
JUROR: Yup. I definitely am very worried about missing work because my work does not cover the time that I'm away, so I would be losing my income. And I recently moved out of my parents' house, so if I was on this case, it would be a financial issue for me.
THE COURT: How are you compensated? Salary, wages, commission -- not commission -- per diem or --
JUROR: It's essentially like a fee-for-service type of thing.
THE COURT: Yeah. Okay.
JUROR: Yeah.
THE COURT: So it's an equivalent of if you don't perform the service, you don't get the fee?
JUROR: Right. Yes.
THE COURT: Okay. Well, you may have not thought about that when you filled out the questionnaire, but on page 5 we asked, you know, if the kind of schedule we were going to follow would be a serious hardship for you and you said no. Was it just your --
JUROR: I think I just wanted to try to, like, honor my civic duty and try to --
THE COURT: But the truth is it would be a serious -- have a serious impact on you money-wise?
JUROR: Yes. Yes.
THE COURT: Okay. Thank you.
JUROR: All right.
(The juror is excused.)
COURT CLERK: Juror No. 258.
JAMES MCALEAR: Juror 258.
(Juror No. 258 enters the courtroom.)
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
If you could speak into the mic so everyone can hear you, that would be great. This is adjustable, so...
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thank you for your patience.
JUROR: You're welcome. Interesting.
THE COURT: We want to follow up on some of the answers that were in your questionnaire just to get a little more information about some of those things, okay, and that's the questionnaire so you can follow along. If you want to take the clip off, feel free to do that.
First let me just ask -- have you been able to follow my instructions to avoid discussing the case --
JUROR: Yes.
THE COURT: -- in substance?
JUROR: As much as possible.
THE COURT: And as much as possible to avoid media reporting on the case?
JUROR: Yes, yes.
THE COURT: Okay. I first wanted to ask you about -- this is on page 7, one of your sons is a police detective?
JUROR: Correct.
THE COURT: In Santa Barbara, California?
JUROR: Yes.
THE COURT: How long has he done that?
JUROR: He retired from Brookline -- he's been there now seven years.
THE COURT: He had previously been a Brookline police officer?
JUROR: Yes.
THE COURT: How long had he done that?
JUROR: Twenty.
THE COURT: Okay. Now, I gather you're retired?
JUROR: I am, so to speak.
THE COURT: So to speak? Retired but active?
JUROR: Very.
THE COURT: Okay. And the last job you had, you worked for the -- I can't quite --
JUROR: My writing is terrible. I worked for the Chelsea public schools.
THE COURT: Public schools? That's what I thought.
JUROR: Agency director.
THE COURT: Director of?
JUROR: Special education, pupil personnel.
THE COURT: And you retired about six years ago, 2009?
JUROR: 2009.
THE COURT: We ask people about their use of social media. You say you use Facebook infrequently?
JUROR: Yes. I use it primarily to keep in touch with my grandkids.
THE COURT: Okay.
JUROR: Or to post something I'm doing in the town.
THE COURT: Okay. Some of your --
JUROR: I'm involved.
THE COURT: -- civic activities?
JUROR: Cultural council.
THE COURT: I'm sorry?
JUROR: Cultural council, arts. Those are primarily my interests.
THE COURT: Uh-huh.
I'm on page 12 now. And the Question 34, I can't quite --
JUROR: You can't read my writing.
THE COURT: Your brother?
JUROR: My brother was a police detective and --
THE COURT: Where?
JUROR: In Lewiston, Maine.
THE COURT: I thought it said Lewiston, but I wasn't sure.
Was.
JUROR: Was. He's retired from that.
THE COURT: You had previous service as a juror in a state case? I'm looking at Question 47.
JUROR: Lynn District Court. It was the only experience I had, was under Judge Dever. And I was allowed to sit through hearing the evidence, but because it involved a police person, when it came to deliberation, I was excused.
THE COURT: Okay. Was it your choice to be excused?
JUROR: No.
THE COURT: Did you think that the fact that you were related to police officers was a skewing factor in your ability to be a juror in a case?
JUROR: In that case, no, I did not.
THE COURT: How about any case, including this one?
JUROR: Well, I like to think of myself as fair, and I tend to want to hear all sides of the story before making a final judgment.
THE COURT: Obviously in a criminal prosecution there are law enforcement officers who are witnesses --
JUROR: Uh-huh.
THE COURT: -- commonly. Their testimony has to be evaluated as everybody else's.
Would you have any different rules for evaluating their testimony, the testimony of a law enforcement person, as opposed to someone else?
JUROR: No, none that I'm aware of.
THE COURT: In other words, would you hold --
JUROR: Would I have a prejudice?
THE COURT: Would you have a higher standard or lower standard or would you tend to be more easily persuaded by them or would you tend to be more critical of them? Anything.
JUROR: I don't think so. I think it would depend how it's presented, if I feel it's honest or makes sense to me, I certainly would weigh it as a factor.
THE COURT: There's also -- the defendant is also charged with the murder of a --
JUROR: Police officer.
THE COURT: -- police officer. An MIT police officer.
You have a brother who was a police officer, you have a son who is a police officer. Would that present any difficulty for you in being an impartial juror on that kind of an issue?
JUROR: I honestly -- I can't say I know because I haven't been confronted with that, but to project, I would try to be considerate of all data and to weigh the facts. It would depend on how it was presented, I guess.
THE COURT: Okay. I'm on 19 now, Question 74. We asked what your reaction might have been when you received the summons for this case.
JUROR: When I first received a summons, I didn't even think about this case. I didn't think it was even there.
THE COURT: That was going to be my question. In the second line you said "not clear of," quotes, "case."
JUROR: I thought it would be interesting and a learning experience to be part of a federal -- the process would be fascinating. I had no clue.
THE COURT: When did you find out, when you got here?
JUROR: When I got here.
THE COURT: And did you have a reaction then?
JUROR: I did have a reaction when I saw the actual defendant. It was like, ah. To be honest with you, I had to sort of take a breath. And then I thought, you know, you're here to do a civil duty. It's part of the law. We need to think carefully. That's -- I mean, to be honest with you.
THE COURT: Okay.
JUROR: Yes.
THE COURT: Let's turn to the next page. I want to ask you about Question 77. This is a multiple-part question asking a series of things. And the first thing is asking whether as a result of things you'd seen or read in the news or learned from other sources had you formed an opinion, A, that the defendant was guilty, or, B, that he was not guilty, and you said yes to the first and no the second.
JUROR: Yes. From the information initially presented through the media or the news or TV, et cetera, I saw film, and I assumed he was guilty. So that was my first reaction.
THE COURT: Right. Right. So then further down in that same question we ask if you answered yes to any of these questions, would you be able or unable to set aside your formed opinion and to base any decision about guilt or punishment as a juror on the evidence presented in the court, and you said you thought you were able to do that.
JUROR: Yes.
THE COURT: Could you tell us about that, why you think that?
JUROR: Well, I think it's a major responsibility to be part of this process -- or for anybody, and I feel strongly that we need to weigh the facts seriously. We need to determine if the presentation is believable, does it make sense. I mean, those are things that I think as part of my duty. Not to overstate it, but that's basically where I'm at. From what I know at this point when I answered this question and even today I saw data that said this young person was guilty --
THE COURT: Right.
JUROR: -- of a horrendous crime.
THE COURT: So what we ask jurors to do is once they --
JUROR: Put it aside.
THE COURT: -- begin to hear a case, is to pay attention to the evidence in the case and use that as -- you use the word "data" -- use that as the database for examining the issues.
JUROR: Yeah.
THE COURT: And I'm sure you understand this, but I just want to preface the question with it. You understand that the burden of proof in a criminal case is always with the government to prove a person guilty beyond a reasonable doubt by the evidence at trial and that a defendant never has any obligation or burden to prove he's not guilty. The burden never shifts to the defendant to explain things, right? You understand that?
JUROR: I do.
THE COURT: So the question is never which side has convinced me but has the government convinced me that this person is guilty beyond a reasonable doubt.
If you had the responsibility of being a juror in this case, would you be able to faithfully apply those principles and assess the evidence and see whether you were convinced by the evidence beyond a reasonable doubt or not?
JUROR: I believe I would be able to.
THE COURT: And just to push it a little bit further, if as to any of the charges you thought the government's proof was not convincing beyond a reasonable doubt, would you be able to vote not guilty?
JUROR: Given --
THE COURT: In other words, if the --
JUROR: Yes. Yes.
THE COURT: -- the government's evidence did not --
JUROR: Did not meet those guidelines, I would have to assume I would be able to vote not guilty.
THE COURT: Okay.
The second part of the Question 77 asked about the death penalty, and you indicated you were unsure about that. Let me ask you to turn to page 23. And beginning with Question 88, we asked a series of questions focusing on the death penalty, first in general, and then getting down to specifics or the particular case.
So 88 was a general question about views on the death penalty, and you said, "In general I oppose the death penalty." Do you want to tell us any more about that?
JUROR: Correct. Yes. I have always been opposed to the death penalty. The state, in general, is opposed to the death penalty. I certainly understand it's a federal case, a federal crime, and that allows the death penalty to be considered as punishment for the wrongdoing. And if that's the law, I mean, that's the law. That's the way it is. And either way, it's going to get dragged on so...
THE COURT: Okay. In Question 89 we then asked you to kind of give us a sense of how strongly you felt about it on the scale of 1 to 10, and you chose 2, which is pretty close to the end.
JUROR: And philosophically, I don't feel much is gained by administering the death penalty in general. I'm not a proponent of someone taking their own -- if someone took their own life, that would be their decision, but to take another's life, do we take their life, does that change anything? In my head, those are always the issues I deal with. So I'm sure I didn't answer your question.
THE COURT: Well, this is -- I guess this is kind of a temperature gauge, in a sense. It's how strongly or less strongly do you feel. And you didn't go to the polar position of 1, but you're pretty close.
JUROR: Yeah.
THE COURT: Is that a good reflection of --
JUROR: Yes.
THE COURT: Again, this is --
JUROR: I've worked to support this, that there be no death penalty in Massachusetts, and I was part of an active campaign in the '80s and 90s, whenever that was done, and --
THE COURT: What did you do? I mean --
JUROR: Well, I supported so that the -- I supported politicians to make sure that we would do away with the death penalty. I think at the time there were lots of wrongs that had been committed and people had been given the death penalty. Did it change the way society thought, the way society -- did it change behavior? No, there is no way that -- there's no evidence that it does. So that's my feeling.
THE COURT: Yeah, but -- okay. I was sort of getting at what -- you said you supported candidates for office, I guess, that had your view.
JUROR: Yes.
THE COURT: Did you do other things, petition drives or information programs or anything like that?
JUROR: No. I think I went the route of the politician I would support and elect.
THE COURT: All right. Let me ask you to turn to page 24 and Question 90. There, instead of a number, we asked you to select, if you could, a statement that came closest to your belief about the death penalty in the case of someone who's been proved guilty of murder. And, of course, you understand that the penalty question arises only after someone has been convicted of intentional murder. So that's the premise, that the person has been convicted.
And so you circled C --
JUROR: Uh-huh.
THE COURT: -- which is that you're opposed to the death penalty but you could vote to impose it if you believed that the facts and the law in the particular case called for it.
JUROR: Yes.
THE COURT: Is that your view?
JUROR: That is my view.
THE COURT: So you do feel strongly against it?
JUROR: I do.
THE COURT: But you do think that in an appropriate case if the facts that you learned in the case suggested or said to you that this is an appropriate case for the death penalty, despite my general views, you could vote to impose it. Is that what you're saying?
JUROR: I believe I could.
THE COURT: Let me ask you to look at the bottom of page 25 and the top of 26. First 95. 95 and 96 are kind of paired -- they're either side of the question, in a sense.
So 95 is if you found the defendant guilty and you decided that the death penalty was an appropriate punishment, could you conscientiously vote for the death penalty, and you said you weren't sure. And then the next question, if you found the defendant guilty and you decided that life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment, and you said yes.
JUROR: Yes.
THE COURT: So there's a slight variation in your -- how sure you are, I guess, might be one way of putting it.
JUROR: Yes.
THE COURT: Can you tell us a little bit about what you think about those?
JUROR: Well, it would be difficult, if he were found guilty by the jury I was present on, to rule for the death penalty if there was an option for life imprisonment without parole.
THE COURT: Let me just stop you right there because those are the two options. There are no other options in this federal death penalty case. The jury will have the choice of the sentence of death or sentence of life imprisonment without the possibility of release. Those are the two available options.
So given that, I guess to pick up on what you were just saying, life imprisonment without the possibility of release is a possible option depending on how the jurors see it.
So knowing that that would be an option, let's go back to Question 95 and the way it's asked. First, the introductory clause to Question 95 is if you found the defendant guilty of a capital crime, right, and you would have voted for that verdict of guilty if you were part of the jury -- and he would have to have been unanimously convicted. So it presupposes that you've already voted to find him guilty of a capital crime. So then after evaluating the penalty phase evidence you decided that the death penalty was an appropriate punishment -- that's positing that you have decided that -- would you be able to then act on that decision and vote to impose the death penalty?
I think that's what the question is trying to get at.
JUROR: I'm not sure.
THE COURT: That's what you said. Can you help us any more with that or we just have to leave it at that?
JUROR: I think I'm going to leave it at that.
THE COURT: Okay. All right. Any follow-up?
MR. WEINREB: Sure. Good afternoon. My name is Bill Weinreb. I'm one of the prosecutors in the case.
These questions are all sort of variations on a theme and they get at slightly different things. So I want to follow up, if I could, on just a couple of things. So you wrote that you're generally opposed to the death penalty.
THE COURT: Can I just call a time out here? The reporters have to change. I would like to do it when we change jurors, but there's a schedule issue. So just to -- I'm sorry to interrupt. Just do a quick change.
(Break to change court reporters, 3:30 p.m.)
(Resumed, 3:23 p.m.)
THE COURT: Okay, go ahead, Mr. Weinreb.
MR. WEINREB: So you told us on your questionnaire and here too that you're opposed to the death penalty, and that in fact you were part of an active campaign to abolish it in Massachusetts.
JUROR: Uh-huh.
THE COURT: You have to answer in words.
JUROR: I'm sorry. Yes. I'm sorry, yes.
MR. WEINREB: And so I gather your feelings in opposition to it are pretty strong.
JUROR: Yes.
MR. WEINREB: And in fact you said you think it serves no purpose.
JUROR: The death penalty in general.
MR. WEINREB: Serves no purpose.
JUROR: And research indicates to me it does not serve -- it doesn't change behaviors.
MR. WEINREB: Okay. So given all of that, is it -- I mean, despite all of that, could you impose it? Could you actually vote to impose it in any case?
JUROR: It would depend on case and the factors. I mean, it would depend on the case.
MR. WEINREB: So even though you believe it doesn't change any -- serves no purpose and you're opposed to it, you could still vote to impose it?
JUROR: If the circumstances warranted, if it -- yes.
MR. WEINREB: And what are some of the circumstances that could warrant imposing it?
MS. CLARKE: That may be --
THE COURT: No, I think I'll allow that question.
JUROR: I think that the actions were so horrendous, uhm, the person had absolute intention of doing something so terrible, could I impose it because there was no chance that that person would be able to change? Or would he be rehabilitated or she be rehabilitated? I'd have to really be looking at the specifics of what the crime was, and if the person was totally in control and really, uhm, there are some things, uhm... To purposely kill a child, uhm, I think that would be -- and even then, I would have to look very carefully at what the motivation was, where that person came from, what that person's background was. I mean, there are a number of factors. Maybe I mull things over too much. I don't know.
MR. WEINREB: Well, I'm not asking you to say, really, under what circumstances you would or wouldn't impose the death penalty. What we're really trying to get at here, or at least what I'm trying to get at, is whether your belief that the death penalty serves no purpose would prevent you -- whether you could impose a punishment despite believing it served no purpose.
MS. CLARKE: Your Honor --
MR. WEINREB: Just in any case really. I guess you could say I'm a little hung up on that statement of yours, and maybe I misunderstood what you meant to say.
JUROR: No, no, you probably understood my vagueness. And the other piece is, it's part of the law. So would I break the law? No. I mean, if I were a part of the process and -- now he's really confused. If that's one of the choices in a case like this, then I would have to consider it.
MR. WEINREB: Okay, fair enough.
JUROR: Would I -- I mean, I will have to -- if that's the way it falls out, then I will have to consider it. I would not not consider it if it's a directive of the Court or of the law.
MR. WEINREB: Okay. And you do understand that the law never requires anyone to impose the death penalty.
JUROR: I do.
MR. WEINREB: It always would be a decision for each individual to make. So all that the law requires is exactly what you said, that it be something that you could give genuine consideration to and actually do if you believed that this was the exceptional case; despite the death penalty serving no purpose, it was the case that was an appropriate one for it in your mind. Could you do all that?
MS. CONRAD: Objection, your Honor. I think this has been covered and asked and answered.
THE COURT: Go ahead. You can answer. It's kind of a convoluted question, but --
MR. WEINREB: Do you want me to reword it or no?
JUROR: No. You're asking questions the way I answer them.
(Laughter.)
JUROR: I would be able to follow the direction of a court in the case. I would not not do that. And I tend to consider all sides, all the factors. So that's the best I can give you. I cannot say today how I'm going to feel or how I would feel should I be part of this process. I do not know, except for I wanted to be honest with you.
MR. WEINREB: Sure, and nobody can predict exactly how they're going to feel in any situation. I don't want to belabor this too much. All I want to do is just get a sense of whether your best assessment of yourself is that if you were instructed that during the penalty phase, if there is one, you should consider everything that you heard, and at the end of it make a decision, an intellectual decision, a moral decision, a decision that takes into account your values, but if having done all of that and deliberating with the other jurors you came to the conclusion that this was the kind of case where the death penalty was appropriate, could you actually do it? Could you vote to sentence someone to death?
JUROR: I'm not sure.
MR. WEINREB: I thought I would trick you into a better answer, but, okay.
JUROR: I'm being honest.
MR. WEINREB: I appreciate that.
MS. CLARKE: Hi. Good afternoon.
JUROR: Good afternoon.
MS. CLARKE: My name is Judy Clarke, and I'm one of Mr. Tsarnaev's lawyers. And I feel your struggle and certainly appreciate your views, but I'm going to ask you a couple of things, if I can, about the death penalty. What I hear you saying is that as a matter of policy, as a legislator, you would not vote to have a death penalty. In fact, you'd vote against the death penalty.
JUROR: Correct.
MS. CLARKE: But as a citizen facing jury duty, you also would recognize that we want people in the jury box in a capital case who are both for and against the death penalty, right?
JUROR: Yes.
MS. CLARKE: I mean, it wouldn't be right, I guess, to have everybody in the jury box who is --
JUROR: Had the same --
MS. CLARKE: Or who is in favor of the death penalty or against it.
MR. WEINREB: Your Honor, I object to this.
THE COURT: Yes, I think so.
MS. CLARKE: Sorry.
THE COURT: A different question.
MS. CLARKE: Oh, I'm going on. I apologize to the Court, but I think we know where we're headed. Mr. Weinreb asked you and the Judge asked you if you could sit with fellow jurors essentially and weigh the evidence, weigh the aggravation and waive the mitigation, and give fair consideration to whether the death penalty was appropriate, right?
JUROR: Correct.
MS. CLARKE: And what I hear you saying is that you could give that fair consideration.
JUROR: I could.
MS. CLARKE: And knowing that no juror ever has to vote to impose the death penalty, but if after fair consideration with the people in the jury room with you your conscience told you that the death penalty was an appropriate penalty in the particular case, the "not sure" answer you've been giving us, what we really need to know is, could you vote to impose the death penalty? If in your conscience, after a full and fair deliberation, you decided that was the right penalty, could you so vote?
JUROR: I could, and I thought I had said that prior. Yes.
MS. CLARKE: So that's a little bit different than "I'm not sure." I think that's all we're getting as to the gradation --
JUROR: Oh, okay.
MS. CLARKE: -- because we're sitting kind of on the fence, and the question is, if in fact you can give fair consideration to opposing views, weigh the aggravation and mitigation, and decide in your conscience that the death penalty is the right sentence in that particular case, could you actually vote for the death penalty? And that's really the bottom line.
JUROR: I could if -- yes.
MS. CLARKE: If that's what you decided was right?
JUROR: Yes, yes.
MS. CLARKE: I won't badger you anymore.
MR. WEINREB: Could I have one last follow-up question?
MS. CLARKE: He will, but I won't.
(Laughter.)
THE COURT: I think you just got permission.
MS. CLARKE: Overruled.
MR. WEINREB: Can you just explain, why before were you saying "I'm not sure" to that question and now you're saying you could? Was it a different question, or is it just you changed your mind?
JUROR: No. Perhaps I didn't understand what you asked me.
MR. WEINREB: Okay.
JUROR: I'm not sure. Do you want to rephrase your question or help me understand?
THE COURT: I think we've been over it enough.
JUROR: Okay, there's some ambivalence, so let's not deny that, on my part; but given the situation, mitigating circumstances, whatever it is, if I were part of a jury and that was the directive, I would give full consideration to all. That's who I am. That's all I know.
MR. WEINREB: But the question was just, having given the consideration and you having determined that this was an appropriate sentence in the case, could you personally actually vote to sentence someone to death?
MS. CLARKE: I think the question is if she thought it was the right thing to do.
JUROR: I'll give you the same answer I gave your opposition: Yes, I would consider all factors to the best of my ability and to the completeness of my ability.
THE COURT: Okay, thank you very much. Just leave that there, the questionnaire.
(Juror excused.)
THE COURT: Could we just cut the audio for a second.
(Courtroom cleared.)