5.For-Cause Challenges and Juror Qualification Rulings

MR. BRUCK: 260 we have a motion.

Your Honor, this is the juror who said that -- on his questionnaire, which I don't think the Court actually asked about but it was gone over -- oops. On the questionnaire he wrote on page 25, explaining the answer that life imprisonment was less severe than the death penalty, "Consistently some governor or president decides to release those sentenced to 'without release' or a judge decides to let them go."

I'll go into what he said in a moment, but I think it's worth beginning this by pointing out that we have now, by our count, questioned 129 jurors individually, and not one but Juror 260 has expressed this particular misconception, and it is a misconception, about the meaning of a life-without-release sentence.

Of all of the biases and pieces of misinformation and sort of jury room mythology that exists in our legal system, this is the most dangerous and the most pernicious in a capital case. It implicates the holdings of Simmons v. South Carolina which is the case in which the Supreme Court held that it violates due process to conceal from the sentencing jury the fact that life imprisonment means life without parole.

Now, it's not -- this is not on all fours with Simmons, but the point is that in Simmons, the Supreme Court accorded constitutional stature to the importance of the jury understanding that life without parole is the alternative to the death penalty. Now, there are lots of jurors who might say, Oh, well, I've heard that it doesn't really mean what it says, or I heard that Charlie Manson came up for parole or whatever, little bits and pieces, but this juror is in a different category. Consistently, he says. He's got a story in mind.

And then when I asked him about it here today he told a very integrated narrative, very fact-based. "Increasingly, over the last 20 to 30 years" -- he even had a time period in mind -- "we have observed that persons who have been convicted of atrocious crimes and sentenced to life without parole have, in fact, found someone to let them go so that I do not believe that a sentence of life without parole is, in fact, really the case [sic]. It is, in fact, a sentence of imprisonment with perhaps a small or large chance of release depending on how political life evolves over the next 20 years."

And here you have the real core of the problem, that this is about politics. It's about people's views of whether President Obama or this president or that president or the Democrats or the Republicans are soft on crime and they're going to let people out and commute folks. And it's all based on fantasy. There is no factual basis to any of this. No capital murderer in the federal system sentenced to life without parole has ever been released, and it's never going to happen. It certainly is not the case that over the last 20 to 30 years it's been happening increasingly or that we have observed it. This is just not true.

Now, there has been research done on this particular topic all over the country. There's a Law Review article by William Bowers from here at Northeastern who is the principal researcher of the Capital Jury Project, which is this extremely ambitious National Science Foundation-funded attempt to open the black box of what jurors do when they sentence to death or to life in capital cases.

And Professor Bowers has documented in ten different states the pervasiveness of this misconception, the myth of early release, it's called, and how jurors who hold to this myth get everything wrong about the capital sentencing system. Jurors who believe someone is going to be released early give less weight to mitigating factors and more weight to aggravating factors; they are quicker to find the defendant is dangerous than jurors who don't hold that belief. And it actually can be mathematically calculated because you can ask people when do you think defendants get out if they're not given the death penalty, and jurors give a number. And you can actually correlate the number to the degree to which jurors make harsher judgments across the board. So this is not something that we don't know about. This is a classic form of bias. Now, I realize that good lawyer that he is, Mr. Weinreb got the desired response at the end which was, and I quote, asked -- Mr. Weinreb posited an instruction that I have never heard given in any case, which was not just can you accept that the verdict of life without release or death, but if you were instructed that life without release means that there -- I can't remember exactly but it was something like means exactly what it says and you are not to speculate otherwise, or words to that effect -- now, maybe the Court intends to give some type of table-pounding instruction like that, but as I say, I don't think it's an instruction that has ever been given before. We can't assume that it's going to be given.

And the juror's -- the most revealing thing about the juror's response was not what he said but the 15 seconds of silence that followed the question. He just sat there and thought about it. And then he said very carefully, "This isn't the case that a jury should worry about deeper issues."

Well, that is very thin ice to rest the fairness of these proceedings on. And as I say, this is -- with 129 jurors we've encountered this problem exactly once. There is no reason to qualify this juror and take the risk that this highly educated juror who may well persuade the rest of the jury to his point of view that life doesn't really mean life and you're going to see Jahar Tsarnaev back on the street in 20 or 30 years if you don't give him the death penalty -- there's no reason to take that risk.

On top of that, I have to say, and I don't want to reargue the issue about Morgan qualifications, but we were really closed in in asking this juror the most basic questions. He described -- he posited types of cases -- or he described a case in which the death penalty would be appropriate and we weren't allowed to ask: Is it this case.

So there are really a lot of unknowns about this juror. And everything on balance -- I appreciate your hearing me out at great length -- but we think this is huge, and on balance, we think he should be excused.

MR. BRUCK: Very briefly, he -- the final answer really was a little evasive, but on top of which what is so pernicious about this is that he will listen to you instruct on the law, but he has told us not once but in the questionnaire and again today that he doesn't think you really know what's going to happen. This is not a legal issue, this is a factual issue, and one that he has observed over 20 to 30 years.

So he can accept what you say as being what you say and yet he knows what's what. The extent to which this will color his judgment -- even if as an engineer he says, Okay, I'm going to treat this as what it is, and yet it infects the way he looks at everything in the case. And that is why this is such a dangerous misconception.

MR. BRUCK: Yes, your Honor. This is the juror who served in Vietnam. He didn't actually mention it but the period of his service coincided with the Tet Offensive. He was there from 1967 until the middle of 1968.

The Court has excused jurors who were friends with or related to -- I think one was a cousin -- who had come back from Afghanistan and had seen or been exposed to or perhaps having been wounded by an IED and recovered. Quite indirect. This is the juror himself.

In response to a question from the defense about have you seen, did you see people in -- who were injured or killed by explosives, which is what we are dealing with in this case, that was the one point of real drama in what otherwise was a very unremarkable voir dire examination. He said, "More than you would ever want to know about" or words to that effect. There was some real emotion there.

He is going to see things which trigger that in this case. He is way too close. This is absolutely no disrespect to people that went over to Vietnam and had these experiences, it's just that the evidence in this case is too close -- or it may become too close. There is reason to believe -- I've talked before about the fact that we have a pending motion to try to resist the government's none-too-subtle attempt to make this seem like a military attack where you will have a trauma surgeon from Iraq and Afghanistan who was at Mass. General describing how he knows that these are IEDs because he can describe the IED wounds that he saw suffered by our troops in both of those countries during his tour as a combat trauma surgeon. It's all going to come back.

This is also a juror who used almost military terminology to express his eagerness to serve. It was all very admirable. I don't mean to be critical. But we all are aware of the issues surrounding this case and the fact that everybody knows about it and everybody -- almost everybody has strong feelings about it. And on balance, this is a juror who ought to be disqualified.

MS. CONRAD: May I just say one thing, though, your Honor? I believe with this juror I was the one asking him questions, and I may be mixing it up with some other jurors, but there were some questions about views on the death penalty which were shut down by objections sustained by the government. My recollection was that in particular that he -- I think he had selected 10 as reflecting his views, and my efforts to follow up on that were curtailed.

Your Honor, I think, asked whether he would automatically vote for the death penalty in any case in which it applied, and he said no. And I attempted to ask whether he would vote for it in any intentional premeditated -- "premeditated" being his word -- murder case, and I was not allowed to ask that question which goes straight to the Morgan issue.

And so I think it's the combination of those two things. And I think that the fact that he selected and stood by 10 as the correct place, which is essentially a Morgan juror, is another basis for striking him.

MR. BRUCK: Well, I don't know if the Court really needs to hear from me about this. It's quite obvious that Mr. Weinreb said he was concerned for this young woman's professional career has to do with her views on the death penalty, which are not be favorable to the government, although she is clearly qualified under Witherspoon.

The Court gave her every opportunity to claim a hardship and she thought about it. She's obviously an extremely educated, intelligent person and she thought about it, and she feels like Fridays and weekends and evenings are enough. She's a single person, she doesn't have any family responsibilities that -- or at least we can infer that. There is just no reason not to take her at her word that she can manage this.

And I don't think any other juror's had sort of a hardship excuse imposed on them, and I don't think just because she's against the death penalty the government ought to successfully be able to argue it should be done in this one instance.

As far as -- I mean, the Court has already said if you're going to be familiar with Main Street, does that mean that you can't sit on a jury for a crime that occurs on Main Street? None of the issues that Mr. Weinreb has talked about are going to be in any great contention in this trial.

And even if they were, she's at MIT. A lot of other people who the government likes just fine work at MIT and this issue has never been raised before. The nub of the problem is that they hoped that she would say that she could never impose the death penalty and she absolutely never said that and is a perfect example of the sort of juror that must be found qualified under Witherspoon, so that the government has been extremely creative in thinking of other ways to get rid of her, but none of them have any merit.

MR. BRUCK: This juror was pretty much a carbon copy of the juror against whom you denied a challenge last week. That is the situation of a juror who is asked to hypothesize a future situation which she had never thought about before in which very few people can predict with certainty what their reaction will be. And that's what she was unsure about. Not that she couldn't do it, not that she didn't think she could, but that she was unsure, projecting herself into this rather strange hypothetical situation which the questions were posited. If you leave that aside, she was perfectly qualified. She even changed her estimation of her own position on Question 90 from C to D as she worked through this process.

Now, there's nothing unusual about a juror whose positions are slightly evolving or shifting. We had two or three or four jurors who said the same thing today, that they were changing their thinking a little bit, or had changed it within the last little while, since this process began. So that doesn't single her out or make her subject to disqualification at all.

And she had many, many responses which were qualifying. And the only ambiguity at the end was being unsure what would happen at the end of the process if she was confronted with the actual decision. A young lady said exactly the same thing last week and the government made exactly the same objection and the Court found that she was qualified on the grounds that this is just too thin a hypothetical read to find someone disqualified under Witherspoon.

And we think the government may not want her on the jury, they may well strike her, and they may mostly be concerned that, like many jurors, she takes full account of the retributive impact of a life without parole sentence on a 19-year-old defendant. And that's not good for the government's case for the death penalty but that's no grounds for disqualification.