5.Juror Disqualification and Challenges for Cause
129 linesSIDEBAR CONFERENCE:
THE COURT: Before I bring the next, I had understood that the parties thought they had an agreement on this next juror. I didn't see it, so that's why I didn't take him out. I didn't know what the issue was.
MS. CLARKE: Police officer and official.
MS. CONRAD: Exempt under the plan.
THE COURT: Oh, oh, he's disqualified.
MS. CONRAD: Yes.
THE COURT: I missed it entirely. There's no need to talk to him then. So I guess we're done. 4:00 o'clock?
MS. CLARKE: Sure.
THE COURT: Is that okay?
(A recess was taken, 3:36 p.m.)
(Resumed, 4:06 p.m.)
THE COURT: Okay, should we just run through the list?
MS. CLARKE: Yes.
THE COURT: 219?
MR. WEINREB: The government moves to strike 219.
MS. CLARKE: And we have no argument to make.
THE COURT: Yes, I'll strike that. I think there are a number -- you know, it didn't necessarily appear -- I'm not sure whether she was having any language difficulty, but she seemed completely intimidated by the process, and I don't think that that's something we want in a juror who's sitting there. And then she gave some answers that also were disqualifying, but I might have done it just on her demeanor generally anyway, so she's out.
243?
MR. WEINREB: No motion.
MS. CLARKE: No motion.
THE COURT: Okay. 244?
MR. WEINREB: I think we agreed.
THE COURT: I think so, yes. 245?
MR. WEINREB: No motion.
MS. CLARKE: No motion.
THE COURT: 246?
MR. WEINREB: No motion.
THE COURT: Okay. 250, I think we --
MR. WEINREB: We agreed.
THE COURT: -- agreed on.
MS. CLARKE: We felt disqualified on guilt, but I think we agreed on --
THE COURT: I think the -- yes, okay.
251? Can I just say, something like that, if you could bring it up in advance, we could have saved 20 minutes by getting to the point.
MS. CONRAD: I'm not sure -- you mean just the Facebook posts?
THE COURT: Yes. I mean, it was inconsistent with --
MS. CONRAD: It wasn't necessarily inconsistent. If it was flatly inconsistent, your Honor, then I would agree; but it was only when I inquired further that it was inconsistent. I mean, I have checked pretty carefully to see if it was inconsistent with the questionnaire. I mean, ultimately I think it was in terms of his views about Muslims, but I'm not sure it was --
THE COURT: I'm not so sure of that actually.
MR. CHAKRAVARTY: Your Honor, I actually wanted to make a record on that one. We're not opposing --
THE COURT: Yes, I, by the way, and I'll maybe go last, have reasons apart from that.
MS. CONRAD: Okay. Yes, well, there's a Morgan issue.
MS. CLARKE: So there's a strike?
THE COURT: Yes, he'll be stricken, but do you want to say something on the record?
MR. CHAKRAVARTY: So just another utility of having something like that that a juror is going to be confronted with being made known to the parties beforehand is not only so we can know and prepare, but two things: One is the fact of this Facebook post which depicts the ISIS flag, which is a terrorist organization which in October of 2014, when the profile picture was changed, had just beheaded I think its fourth aid worker, and the U.S. military was in an active bombing campaign and is in an active bombing campaign, and this person was a member of the 82nd Airborne. The fact that this was on his profile page, to suggest that he somehow harbored an animus towards Muslims is an extension. It's not that it wouldn't be fair cross-examination for a witness in trial, but using that as a premise to encourage this juror to confess some sort of animus or bias against Muslims I suggest to you is -- it's unfair to this untrained, unexpecting, a guy who already had his back up, frankly, is not used to these kinds of environments, and suggests, you know, a more hostile reaction than -- I mean, obviously he was more hostile than he ought to have been, but that was a defense mechanism, but it's less likely to get to the truth of what his feelings are is my point.
If we had it beforehand and we knew that that was going to be the intention of how it was going to be broached, we may have been able to explore more in a less confrontational way before than asking him to explain these other things.
A related point is, in addition to overextending, in my opinion, the animus towards Muslims, the other items which Ms. Conrad may have had to impeach him with with regard to what other political views he had went to whether he had other opinions, which was not the question in the questionnaire. The questionnaire talked about whether somebody harbored strong opinions about certain things, whether about Muslims, about political affairs, these types of things. And it appeared in the line of questioning that that was taken as an open door to ask him about anything that he believed in and try to create a candor issue out of it. I think that's a dangerous road to go with any of these jurors, and they don't sign up for that when they come in here.
MS. CONRAD: May I respond to that, your Honor?
THE COURT: Yes.
MS. CONRAD: First of all, a couple of things: One, this juror's questionnaire presented as someone who is completely straight down the middle on everything, had no opinions about anything, hadn't formed any beliefs about the defendant's guilt or about punishment, was straight down the middle. On the death penalty, I mean, completely bland, and the Facebook page presented a different point of view.
Now, you know, I certainly was trying very hard not to be confrontational. My perception of this juror was, before I even opened my mouth, he was hostile to me. And I can't remember what the first question was, but it was something pretty bland. I think it was about Question 77, and, you know, not because his response had indicated -- you know, he didn't even know it was for this case, had been sort of nonresponsive, and he was immediately hostile to me.
And so, you know, this is the problem, Judge. You know, I mean, on the one hand, your Honor is suggesting that we front these issues. If the response is going to be what I'm hearing Mr. Chakravarty say is, we shouldn't even get to ask him about it, he's presenting as having no views about Muslims whatsoever. I understand that having a view about ISIS may be something different, but that's why I asked him what that cartoon represented to him, and he didn't say anything about ISIS in response to that question. So this is why we need an opportunity to ask about these questions.
THE COURT: Okay. I still think it's helpful, if an issue like that comes up, just like the criminal record history, for us perhaps to have an opportunity to think about it and evaluate it before it gets sprung in the course of the voir dire itself. I can tell you it would be helpful to me to think about what the parameters ought to be, okay?
MS. CONRAD: Sure. I appreciate that.
THE COURT: So, anyway, so I think that's -- I don't want to weigh in on the merits of the controversy of what the content and effect of his opinions may or may not be. What concerns me about him is his volatility. And perhaps he was pushed a little bit, but, you know, some of the others get pushed too. So I don't want a juror with a short fuse of the type that he displayed, so that's a prime reason for me thinking that he should not be on this jury.
I do have some sense that he was not as candid as he should have been in the questionnaire, although I don't know that it's necessary to plumb that too deeply, but I don't think he's a proper juror for this case.
MS. CLARKE: So is that an agreed strike or a defense strike granted or a Court's getting rid of him anyway?
MS. CLARKE: All of the above.
(Laughter.)
THE COURT: 255 we excused for hardship. We designated for excuse, I should say.
MS. CLARKE: Yes.
MR. WEINREB: Right.
THE COURT: Since we have not excused anyone yet. We have designated them for excuse.
MS. CLARKE: Right, for hardship.
THE COURT: 258?
MR. WEINREB: No motion from anyone.
THE COURT: No motion, okay. So the net I have is 243, 245, 246, 258.
MS. CLARKE: That's correct.
THE COURT: Now, for next week, have you been able to look at the takeouts?
MS. CLARKE: We have. Yes, we've been able to look all the way through the Court's list, and there are some discussions going on about any additional ones. The government has proposed some, we've proposed some, and we're still looking at them.
THE COURT: Well, I don't know how deep -- this is the next topic -- how deep we want to go into the list for Monday and Tuesday. At least for Monday, I'd like to have that set because Jim can then --
MS. CLARKE: And I think that's what he was about to finish with us.
THE COURT: Okay, I don't think I brought that list. Do you have a copy? The list of numbers? Let me see if it's in my pile here.
MS. CLARKE: This list?
THE COURT: That one, yes.
MS. CLARKE: There it is. I can tell you, Judge, who we've agreed on, agreed with the Court on.
THE COURT: Okay, is it easier to say that or the ones that you have an issue with?
MS. CLARKE: Easier to say the ones we've disagreed with.
THE COURT: Yes, okay.
MS. CLARKE: 311, 358, 393, 414, and 421, and I'm speaking for both parties.
THE COURT: Okay, then we'll leave them in. I won't even look at them. We'll just leave them in if you both want to see them.
MS. CLARKE: Well, there wasn't agreement on all four, all of them, but --
MS. CONRAD: One party or the other --
MS. CLARKE: One party or the other --
THE COURT: So your treaty is that you'll respect each other's objections, and you will put them in rather than argue about it.
MS. CLARKE: Right.
THE COURT: Fine, fine.
MR. WEINREB: Generally they're ones who I think, at least from the government's point of view, seems there's enough ambiguity that we'd like to ask them.
THE COURT: Okay, so we're around 260, I think is the next one.
MS. CLARKE: There's another one in the group that would come in on Monday, or whenever the snow stops, that I think the parties have agreed to.
THE COURT: Agreed to be excused?
MS. CLARKE: Yes. 276.
THE COURT: Well, wait a minute. First of all, let me get the range.
COURT CLERK: So 237 is actually the first juror, but that's because of a trip. And then we've got 260 through 298 is the twenty, depending on how deep you wanted to go.
MR. WEINREB: 298 or 296?
MS. CLARKE: You stopped on eighteen.
COURT CLERK: I stopped on eighteen. 296 was eighteen, 297 and 298 --
THE COURT: I think eighteen is fine actually. I mean, we took a long time today, so --
COURT CLERK: But there's also, I think, one other juror that --
MS. CLARKE: 276 would be the one of that potential that --
THE COURT: That you agree should go out?
MR. WEINREB: Yes.
THE COURT: Can I just see who that is. Okay, I haven't looked at that one. So, okay, on agreement we'll exclude, at least for the time being. I'll look at it. If I disagree, we'll bring her in some other time. Okay. So if we went eighteen but -- so to 2 -- what was it? What was the high number?
COURT CLERK: 296.
THE COURT: So there would be three numbers in -- does that take account of 282, 291, and 294?
COURT CLERK: It does. It takes them, yes.
THE COURT: Okay.
MS. CLARKE: And 248 would come in on a different day?
THE COURT: Yes. It's a family situation. She has a -- she actually put this in her -- it was one of the things I was going to ask her about in her hardship, that her grandmother was ill, and the report we got this morning was, she was on her way to the hospital, her grandmother was dying. So we just don't know what the circumstance is or how long that would be. Jim can tell you, but she otherwise seemed responsive to the idea of coming in at some point. She just couldn't do it today.
MS. CLARKE: Sure.
THE COURT: So we'll monitor that. I guess that's it.
MS. CLARKE: Your Honor, well, while all parties are still here, we still have an outstanding request for the jury data. Now, I know there are only seven days in the week and --
THE COURT: We'll get the order done. It's still in process, right?
COURT STAFF: It is.
THE COURT: Yes, yes. We have the order all prepared. We just haven't filed it. It's going to mimic the order you had before pretty much, and they've already started working on it, so that's where it is.
COURT CLERK: We're working on it. The snow threw us off with childcare issues with the IT person that is helping me, so I will touch base with him hopefully -- I think he might have left, but I will touch base with him first thing on Monday morning, snow pending.
MS. CLARKE: Thanks.
THE COURT: Okay? Can I just mention -- yes, go ahead.
COURT CLERK: Snow.
THE COURT: Yes, I don't know. I mean, it changes -- I thought today was going to be worse than it was based on what people were saying. You get into this mode where you have a big snowstorm, and then everybody freaks at the next half inch.
MS. CLARKE: That would be a fair assessment.
(Laughter.)
THE COURT: So --
COURT CLERK: And the only reason I ask is --
THE COURT: I don't know, we'll just have to make a call, I think, on Sunday when we have a report of some kind, I guess.
MS. CLARKE: Well, if the schools are closed --
COURT CLERK: That's kind of what I was thinking. Like, we were discussing earlier about the Court's policy. Do we play it by ear? Because, I mean, I can do it from home, so --
MR. WEINREB: The thing about the schools closing is that if you have a jury trial ongoing, you need all twelve jurors, so if school is closed, you're almost guaranteed to miss one, and there's no point the rest coming in. But here, if a few can't make it, we can go ahead with the ones who do make it. I'm not sure it makes the same -- it doesn't automatically make sense if the schools are closed.
THE COURT: Yes, and I guess my reservation about this longstanding policy is, it's a pretty blunt instrument, and it's being made on criteria that we would not necessarily be using. You know, there's school kids, there's buses, and a lot of kinds of things that the superintendent, or whoever makes the call, might be thinking of that don't really pertain to the difficulty that our people would have coming in. So where it's a smaller -- I don't know, and where our technology has increased in the communications, it might be better to have our own system rather than just rely on that one. And so that's what I started to say is, if we could see what the conditions seem to be, and maybe Jim and I can talk on Sunday afternoon or something like that --
MS. CLARKE: Just e-mail us?
THE COURT: -- and just let you know if we think the storm looks imminent and bad enough that we should call it off, and then the jurors can be called, I guess, right?
COURT CLERK: And as a Giants fan, I'll not be --
(Laughter.)
COURT CLERK: -- the Superbowl, so --
THE COURT: We'll do it before then.
MR. WEINREB: Yes, since nobody will be answering their phone during that time anyway.
THE COURT: I guess that's it. Okay, good. Thank you.
(Adjourned, 4:23 p.m.)