2.Individual Voir Dire — Hardship, Impartiality, and Capital Punishment (Part 1)
619 lines(Discussion at sidebar and out of the hearing of the jury:)
THE COURT: We have Juror 248 who was postponed because of a family situation. I don't know if you know the outcome of the situation.
Can you ask Jim?
(Pause.)
THE COURT: Are we on?
COURT CLERK: Audio is off.
THE COURT: We're ready to be on. We can be on.
MR. CHIAVARAS: Okay. We're ready to roll.
THE COURT: Okay. Go.
(Laughter.)
(In open court:)
COURT CLERK: Juror No. 237.
THE COURT: 237?
MS. CLARKE: 237 and then 248.
THE COURT: I didn't have 237.
COURT CLERK: I have her questionnaire right here.
THE COURT: I was told 248 but I was not told about 237. So we'll have to wait on that. Can I just see the --
COURT CLERK: Yeah. Yeah.
THE COURT: I guess we can do it. I'll just go through it.
COURT CLERK: Juror 237.
COURT CLERK: Juror 237.
COURT CLERK: Sir, over here, if you would.
(The juror enters the courtroom.)
COURT CLERK: Have a seat. Speak into the mic so everybody around here can hear you, okay?
JUROR: Yes.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to follow my instructions to avoid any discussion of the case or any exposure to media accounts of the proceedings?
JUROR: Yup.
THE COURT: Yes?
JUROR: Yes.
THE COURT: The stenographer is taking down what we say so you have to answer --
JUROR: Okay.
THE COURT: -- in a way she can hear it.
So that's the questionnaire that you filled out, and I'm going to follow up on some of the questions you gave. You were concerned about the -- I guess the time implications of your serving on the case. Can you tell us about that? I'm looking at page 5, Question 10.
JUROR: Yes.
THE COURT: Could you explain that?
JUROR: Page 5 is projects. I have two projects currently that would be coming, you know, an issue.
THE COURT: Tell us about it.
JUROR: No one else --
THE COURT: How would it be an issue?
JUROR: Because no one else would be working on it. So that would be -- that would be one of the issues.
THE COURT: So let's -- I want to go -- I'm now looking at Question 26 which is where we ask about your employment. Can you tell us about your employment.
JUROR: Number 26? I'm an architect.
THE COURT: Yeah?
JUROR: I --
THE COURT: Who do you work for?
JUROR: I work for TRO Jung Brannen in Boston.
THE COURT: And what is your position there?
JUROR: I'm an associate principal.
THE COURT: What does that mean?
JUROR: I'm a partner of the firm.
THE COURT: And --
JUROR: One of the partners.
THE COURT: How big is the firm?
JUROR: 150 people.
THE COURT: And how many associate principals are there?
JUROR: I believe there's 15.
THE COURT: It indicates that you supervise people?
JUROR: Yes, I do.
THE COURT: How many people do you supervise?
JUROR: About five.
THE COURT: Are they -- is that sort of a regular team or do the five people you supervise change from time to time?
JUROR: They change from time to time.
THE COURT: And in general terms what are the projects you're concerned about? What kinds of projects are they?
JUROR: Projects overseas.
THE COURT: Where?
JUROR: In Kuwait and Saudi Arabia.
THE COURT: And does it require you to travel?
JUROR: Yes, I do.
THE COURT: Do you have travel planned in the next few months?
JUROR: The plan changes all the time. I just came back from a trip last week.
THE COURT: To the Middle East?
JUROR: Yes.
THE COURT: And how long were you there?
JUROR: A week.
THE COURT: Do you have -- do you currently have plans to return?
JUROR: The end of February is the first trip, and possibly the end of March.
THE COURT: Is there anything further?
MS. CONRAD: If I may on the hardship issue, your Honor?
THE COURT: Go ahead.
MS. CONRAD: Thank you. Good morning, sir. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's attorneys.
JUROR: Good morning.
MS. CONRAD: Are there other people working with you on these projects?
JUROR: Yes.
MS. CONRAD: And would they be able to fill in while you were serving on this jury?
JUROR: They would have to.
MS. CONRAD: And so would that be sufficient to keep the project on track?
JUROR: I'm not sure.
MS. CONRAD: Is it something where, given the schedule of nine to four, Monday through Thursday, you would be able to maintain supervisory responsibility either remotely or on the days that we're not sitting for trial?
JUROR: It would be difficult.
MS. CONRAD: I understand it would be difficult and I appreciate that.
JUROR: Because this is a very large project and we only have a time frame of one year.
MS. CONRAD: What's the deadline for completion of the project, if you don't mind my asking?
JUROR: 2018.
MS. CONRAD: And so it's in the early stages at this point?
JUROR: Yes. The design phase is only until the summer.
MS. CONRAD: And when you travel to these locations in the Middle East, do other members of your firm or other employees of your firm travel with you?
JUROR: Yes, there will be engineers.
MS. CONRAD: I'm sorry?
JUROR: There are engineers.
MS. CONRAD: And are you the only architect that travels?
JUROR: There's another architect.
MS. CONRAD: So would these trips be able to go forward in your absence?
JUROR: It would have to.
MS. CONRAD: Thank you.
THE COURT: Okay. Let me ask you to look at page 15.
JUROR: Yes.
THE COURT: We asked actually -- beginning on page 14 with Question 44, we asked a series of questions about whether you had strongly positive or negative views about first prosecutors and then about defense attorneys, and then in Question 46, if you had strongly positive or negative views about law enforcement officers, and you wrote, "Feeling distrust of law enforcement in the current high-profile events covered in the media."
JUROR: Right.
THE COURT: Tell us about --
JUROR: That was -- at the time I think most people would feel the same way, you know, similar way because of the events that happened.
THE COURT: What are the events you're talking about?
JUROR: Ferguson and some other cities.
THE COURT: Okay.
JUROR: It was televised.
THE COURT: Do you think that would affect your attitude toward law enforcement witnesses in this case?
JUROR: I'm not sure. And it was -- at the time, you know, there was influence on how people think.
THE COURT: Okay. Looking at the -- at page 19, Question 74, we asked what did you -- what your reaction was, I guess, when you got a jury summons, and you thought it was for this case. And you said, "It felt somewhat emotional." Can you explain what you meant by that?
JUROR: Well, I live in Boston, you know, and just like most people in Boston, they're affected by this particular case. And I think -- you know, I think everyone would have imagery, you know, remind of the event that happened at that time. We live in Boston, we are 24/7, you know, we got informed about the case at the time. And also friends, they're in the Marathon. And so that's why.
THE COURT: And do you think that your experience in seeing those things at the time is something you would not be able to set aside in listening to the evidence in the case and -- what we ask jurors to do is in any case -- and I guess you've had service on a jury before, a criminal jury?
JUROR: Yes.
THE COURT: So you know that in a criminal trial the defendant is presumed not guilty unless the government proves by the evidence at trial that he's guilty and proves it beyond a reasonable doubt.
JUROR: Correct.
THE COURT: So it's not surprising that people have some ideas about the events that underlie this case. The question is whether a juror can compartmentalize or set those previously held ideas aside, pay attention to the body of evidence produced in the case and make a decision about whether the defendant is guilty or not guilty of any of the charges based on that body of evidence and not knowledge from any other source. So I guess the question is: Would you be able to do that?
JUROR: I think because of this particular case, it was widely televised, excessively, so it's different than the case I served before. I did not have much information, much knowledge about those cases. But this particular case is so excessively televised that it would be hard to believe the evidence otherwise.
THE COURT: Okay. Let me ask you to look at page -- the bottom of page 20, Question 80. One of your coworkers was near or at the scene of the explosion. Can you just --
JUROR: She was in the restaurant. I think she -- she was right at the -- she saw.
THE COURT: Was she injured in any way?
JUROR: No, she was inside the restaurant. They won't allow her to go out.
THE COURT: And your best friend's father, you say, was in the race?
JUROR: Yup.
THE COURT: Was he harmed in any way?
JUROR: No.
MR. WEINREB: Your Honor, I think...
THE COURT: Are you all set?
MS. CLARKE: Yes.
THE COURT: All right. Thank you, sir.
(The juror is excused.)
COURT CLERK: Juror No. 248.
COURT CLERK: Juror 248.
(The juror enters the courtroom.)
COURT CLERK: Over here, please. Have a seat, if you would. Speak into the mic so everyone around here can hear you, okay?
JUROR: Okay.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow my instructions to avoid any discussion of the case and as much as possible to avoid any exposure to media accounts?
JUROR: Just work knows I'm here.
THE COURT: I'm sorry?
JUROR: Just work knows I'm here.
THE COURT: That's the questionnaire you have -- you filled out. And we have it in front of you because I'm going to follow up on some of the questions.
Let me ask you to turn to page 5.
JUROR: Okay. Sorry, I'm nervous.
THE COURT: And your answer to Question 10. Can you expand on that or tell us what the situation is these days?
JUROR: Yeah. She's actually currently in ICU. And she's a little more stable now, but we don't really know what's going to happen. She has kidney failure and a parathyroid issue and some other stuff going on.
THE COURT: And how will it affect you personally in terms of your schedule, or particularly your ability to serve on the case?
JUROR: I've been there almost every day since she's been in ICU. So depending on how things go, it probably will affect, I think, my ability to come, I believe, depending on her condition.
THE COURT: In addition to visiting her, are there things you have to do?
JUROR: My mom is her proxy, so there's nothing I really have to do; it's just being there for moral support.
THE COURT: Okay. Tell us what you do for employment.
JUROR: I'm in construction project management, so...
THE COURT: How big is the company?
JUROR: About 100 people.
THE COURT: Okay. And how many -- it says on the form you're an assistant project manager?
JUROR: Yup.
THE COURT: How many assistant project managers are in the company? How many other people do the work you do?
JUROR: I would say there's 15 of us, maybe a little less. It depends on interns and stuff too.
THE COURT: We asked about your social media use, and you use a variety of things, I guess, with varying degrees of frequency.
JUROR: Uh-huh.
THE COURT: Is it mostly personal, family/friends kind of things?
JUROR: Yeah.
THE COURT: Do you do any business posting or anything like that?
JUROR: LinkedIn but nothing really.
THE COURT: Any commentary on public affairs or anything on any of --
JUROR: Not really, no. I mean, Patriots stuff maybe.
THE COURT: Looking at page 12, Question 34, we asked if you or a family member or somebody close to you worked for a law enforcement agency. And you said your --
JUROR: My step uncle.
THE COURT: -- step uncle.
Sort out the family relationship a little bit there.
JUROR: Yeah. My stepdad has been my stepdad since I was about four, and it's his brother. And he's with the Waltham Police Department.
THE COURT: And is it somebody you see on a regular basis?
JUROR: Holidays sometimes.
THE COURT: I think you said later in the form -- I'm looking at page 20, the bottom, Question 80 I think is the same person --
JUROR: Yes.
THE COURT: -- was on a SWAT team during the events related to this case in Watertown?
JUROR: Yup.
THE COURT: Have you talked to him about that?
JUROR: No; my mom just told me.
THE COURT: How long has he been with the Waltham police, do you know?
JUROR: As long as I've known him, so probably at least 20 years.
THE COURT: Yeah, okay.
There are probably going to be Waltham police officers involved in this case. I don't know that for sure but I wouldn't be surprised.
MR. WEINREB: I don't believe there are.
THE COURT: Oh, you don't? Okay.
Well, there will be people who participated in the Watertown events who are police officers. The fact that you have a relative who was in that position, would that affect your impartiality in assessing that evidence?
JUROR: I don't think -- I didn't talk to him about it so I don't think that would really affect anything. I mean, I know it was stressful for my cousins but -- because he has two young kids, but that's all I really know.
THE COURT: Can we cut the audio?
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
THE COURT: We talked about the uncle that you said works for the -- step uncle that works for the Waltham Police Department. Are there other family connections to law enforcement?
JUROR: They have another brother but I think he works in Rhode Island, and I haven't talked to him in a very long time. Probably more than five years.
THE COURT: Is he a law enforcement officer?
JUROR: I think so. I don't know if he's a trooper. I don't know what he's been up to.
THE COURT: What does your father do?
JUROR: My dad?
THE COURT: Or your stepfather.
JUROR: My stepfather works in construction as well.
THE COURT: Okay. Would that experience have any effect on your service as a juror?
JUROR: No, I just wanted to note it, I guess.
THE COURT: Let me ask you to turn to page 20 again.
COURT CLERK: Judge, do you want to go back on?
THE COURT: I'm sorry. Yes. Thank you for reminding me.
(In open court:)
THE COURT: I draw your attention to Question 77 on page 20. In that question we asked whether you'd formed an opinion about whether the defendant was guilty or not and then about possible punishments. And as to whether he's guilty, you said "yes"; as to possible punishment of the death penalty or not, you said "unsure." And then below that we asked if you had answered yes to any of the questions, would you be able or unable to set aside your opinion and base your decision about guilt and punishment solely on the evidence presented in court, and you said you thought you were able to.
JUROR: Uh-huh.
THE COURT: So it's not surprising that people have some ideas about what happened in this case because of the extensive coverage of it.
In any criminal prosecution a person accused is presumed innocent unless the government proves otherwise by the evidence at trial, and proves the person is guilty beyond a reasonable doubt. We ask jurors to focus on the evidence at trial and make their decision solely on that basis.
If you were a juror in the case do you think you would be able to set aside what you might have learned from publicity, and so on, and focus on the evidence in the case and make a judgment about that in accordance with the expectations?
JUROR: I'm not sure. I want to say yes but I don't know if, in the moment, I would be able to. I don't know. I'm sorry.
THE COURT: In Question 78 you said, "I would be willing to hear both sides." That was kind of volunteered by you.
JUROR: Yup. I've had a little bit more time to think about it. And just being in that room the first time kind of -- and like seeing and everything, kind of, it made me think about things a little more once I was at home, not just in a room trying to fill things out.
THE COURT: Okay. Why don't we go to the next page.
JUROR: Yeah.
THE COURT: You were affected in that you sheltered in place along with other people?
JUROR: Yup.
THE COURT: And then the next question we asked about, you know, Boston Strong merchandise and things like that. You said, "I live in the Boston area. It's everywhere."
JUROR: Yeah.
THE COURT: Do you have any Boston Strong things, stuff?
JUROR: Yeah, like family members do and -- yeah.
THE COURT: But you do?
JUROR: Yeah, like bracelets or whatever, yeah.
THE COURT: We asked a series of questions about the death penalty beginning on page 23.
JUROR: Yup.
THE COURT: In Question 88 we asked for your general views. You said you thought it was acceptable in some cases.
JUROR: Yup.
THE COURT: Then you added that in this case you thought it was the easy way out?
JUROR: Yeah.
THE COURT: So you have an opinion already about the death penalty in this case?
JUROR: Well, I think in all kind of acts like this, that people go into it thinking that they're going to be a martyr for their cause, and they kind of go into it accepting that it's a possibility that they could die anyways. So I don't know if that was the defendant's thoughts going into it, but in general I think that's the -- kind of the idea behind these kinds of acts. So I don't know if that's the right punishment or not.
THE COURT: I explained briefly this morning how the process goes. If there's a conviction of a capital crime, there would be -- the government would produce information about aggravating factors that made the crime seem particularly serious that perhaps deserving greater punishment than the average intentional murder, and then there would be mitigating evidence that might show that the death penalty was not the appropriate penalty and that life in prison might --
JUROR: Yeah. I don't know enough about what the mindset and everything was behind it, I guess.
THE COURT: Well, I guess the question is would you be able to, if you were a juror, reserve your judgment on the question of the punishment until you've heard all the evidence in the penalty phase, in addition to whatever was heard in the first phase of the trial, and make a judgment following as best you could do conscientiously the legal instructions that you would get at that point or are you affected by the events, having personally lived through them and seen them and so on, in a way that would prevent you from fulfilling that duty as a juror?
JUROR: I think -- I don't know. This is hard. I think I've already kind of formed this opinion. I don't know if I could look past it as of right now. Yeah, I don't know. Sorry.
THE COURT: Follow-up?
MR. WEINREB: No.
MS. CLARKE: I think we're agreed.
THE COURT: Okay. All right. Thank you.
JUROR: Okay. Thanks.
THE COURT: Just leave the form there.
COURT CLERK: Just leave it there, ma'am.
(The juror is excused.)
COURT CLERK: Juror No. 260.
COURT CLERK: Juror No. 260.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, if you would, please. Have a seat. And if you could do me a favor and speak into the mic so that everyone around the table can hear you, okay?
JUROR: Okay.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to follow my instructions about refraining from discussion of the substance of the case --
JUROR: Yes.
THE COURT: -- and any media accounts as well?
JUROR: Yes.
THE COURT: So that's the questionnaire you filled out. We're going to follow up on some of the answers.
I see that you are a graduate of MIT --
JUROR: Yes.
THE COURT: -- with a degree in electrical engineering?
JUROR: That is correct.
THE COURT: Could you tell us the year of the degree.
JUROR: 1972.
THE COURT: As you probably know, I think I may have even said it this morning, an MIT police officer was killed in the events that this case relates to. Would your affiliation with MIT have any effect on your ability to be impartial in judging that particular charge or any of the other charges in the case?
JUROR: No.
THE COURT: Are you particularly active as an alumnus?
JUROR: No.
THE COURT: Tell us what you do for a living.
JUROR: I'm a software architect working for a local company.
THE COURT: What's the nature of the business of the company?
JUROR: The company is developing software for the mortgage market.
THE COURT: Okay. We asked in Question 29 and 30 about -- and this is on page 10 and 11 -- about social media use.
JUROR: Uh-huh.
THE COURT: First on page 29 is whether you blog or post messages, and so on, on other sites, and you've given us actually some websites that I guess you do.
JUROR: Yes.
THE COURT: Can you tell us a little bit about that?
JUROR: Those are just websites associated with a science fiction publisher Baen and with one particular author whose works I'm interested in, Weber. And they're just discussing the various science fiction books.
THE COURT: Okay. So that's kind of a hobby of yours?
JUROR: Yes.
THE COURT: Sci-fi?
JUROR: Yes.
THE COURT: Okay. And then as to social media, LinkedIn and Facebook?
JUROR: I attempt to stay active on LinkedIn largely for industry connections and job -- remaining active and networking in jobs. My family is active on Facebook, and I occasionally look at it to see pictures that have been posted or whatever, but I avoid posting on it myself.
THE COURT: Okay. We asked about any family members in law enforcement. You have a sister who's a, it says police dispatcher, in Eureka, California.
JUROR: She was a police dispatcher a couple of years ago.
THE COURT: Oh, I see the years.
JUROR: That was a while back. She is currently the teacher in the juvenile corrections department's prison.
THE COURT: Also in Eureka?
JUROR: Also in Eureka.
THE COURT: I'd like you to turn to page 20. I direct your attention to Question 77. In this question we asked whether as a result of seeing things in the media you'd learned anything and formed an opinion about the case in particular -- we asked a multiple-part question first -- whether the defendant was guilty, and you said "yes"; and then in the C and D parts regarding whether he should be penalized by the death penalty, and you wrote "unsure."
JUROR: Yes.
THE COURT: And then below those questions we asked if you had formed an opinion whether you thought you'd be able or unable to set it aside and base your decision about guilt or punishment based on what you heard at the trial in evidence, and you indicated "able."
JUROR: Yes.
THE COURT: So I want to ask you about that.
JUROR: Okay.
THE COURT: It's not surprising in this case that people have some ideas about what happened.
JUROR: Uh-huh.
THE COURT: In a criminal prosecution, as I'm sure you know, a defendant is presumed innocent unless the government proves him guilty by the evidence at trial, and proves it beyond a reasonable doubt. We ask jurors to focus on the evidence at trial, to pay attention to that, and base their decision on that body of evidence without regard to things they might know from other sources.
And so the question I guess is: Would you be able to do that if you were a juror in this case?
JUROR: Yes.
THE COURT: Can you tell us why you're confident of that?
JUROR: I suppose I would have to say that I believe so. I have never been a juror so I suppose I cannot claim experience, but I am familiar with making decisions based on specific sets of evidence and ignoring things that are unproven or that are not immediately relevant to a particular decision. That's part of what I do in my job.
THE COURT: Okay. You personally weren't affected in any way by the unfolding of events surrounding the Marathon?
JUROR: No, other than watching a lot of TV for a day or two.
THE COURT: Okay. I'd like now to -- we asked a series of questions about the death penalty and your attitudes towards it. If you would turn to page 23, in Question 88 we began with asking a sort of general question, if you have any general views, what are they. You wrote, "Sometimes appropriate."
JUROR: Yes.
THE COURT: Could you maybe expand on that a little?
JUROR: I believe that there are crimes and times for which a death penalty is the appropriate punishment. That it is obviously a dangerous thing since you can't undo it, but given how long it takes before the death penalty is, in fact, enforced, it's not as immediately dangerous in terms of being -- in terms of miscarriage of justice as perhaps it could have been in the old days of give a fair trial in the morning and hang him that afternoon. But this is one of the areas where because men are humans and not archangels, no perfect answer to the problem can be found.
THE COURT: Okay. In Question 89 we asked you to indicate on a scale of 1 to 10 where you might locate yourself in terms of strongly opposed to strongly favor. You picked 7. Is that --
JUROR: I think that's about...
THE COURT: Okay. In other words, you tend to favor but not -- it's not a strongly held or --
JUROR: No.
THE COURT: Okay. Then in Question 90 we tried it a different way by asking you if there was a statement among the suggested ones that represented best your views about the death penalty for someone who's been proven guilty of murder, and you selected D, which is, "I'm not for or against the death penalty. I could vote to impose it or I could vote for life imprisonment without release, whichever I believe was called for by the facts and the law in the case."
That's what you meant to select?
JUROR: Yes, it is.
THE COURT: And is that a fair summary of your attitude on the death penalty?
JUROR: I believe so.
THE COURT: In Question 95 and 96 we asked sort of related questions. First -- this is at the bottom of page 25. First, in 95 we asked if you found the defendant guilty and decided the death penalty was the appropriate punishment, that's a decision you were making, could you conscientiously vote to impose the death penalty, and you said "yes."
JUROR: Yes.
THE COURT: And then we asked the same question about the other available penalty, if you thought -- if you found him guilty and you decided that life in prison without the possibility of release was the appropriate punishment, could you conscientiously vote for that punishment instead.
JUROR: Yes.
THE COURT: Follow-up?
MR. WEINREB: No, your Honor.
THE COURT: Follow-up?
MR. BRUCK: Yes, please.
Good morning.
JUROR: Good morning.
MR. BRUCK: My name is David Bruck and I'm one of Jahar Tsarnaev's attorneys. And I have a few follow-up questions, if that's okay.
JUROR: Certainly.
MR. BRUCK: You filled out on your form that the death penalty is sometimes appropriate, and then when the judge was questioning you, I think you said that "I believe there are times and crimes to which the death penalty is the appropriate punishment."
My question is, of course you know what case this is?
JUROR: Yes.
MR. BRUCK: And I understand you haven't heard all of the evidence --
JUROR: Uh-huh.
MR. BRUCK: -- but knowing what everyone has heard and assuming that, of course, you don't decide on the death penalty until the person's convicted -- so if you can sort of put yourself past the guilt phase of the trial and into the stage where a person's already been convicted, is this one of the times or one of the crimes for which the death penalty is the appropriate punishment --
MR. WEINREB: Objection.
MR. BRUCK: -- in your view?
MR. WEINREB: For one thing, the premise of the question is "you know what everyone has heard," which is not an appropriate --
THE COURT: Right.
MR. BRUCK: Perhaps I could rephrase it?
THE COURT: Rephrase it. Let me suggest the category of case rather than this case.
MR. BRUCK: Right.
We're -- of course, Mr. Tsarnaev is charged with the use of a weapon of mass destruction.
MR. WEINREB: Objection. We've gone through this many times.
MR. BRUCK: Really what I'm just getting to, I think, is whether knowing the type of case that we're concerned with, whether you have an opinion about whether this is an appropriate case for the death penalty, understanding you haven't heard everything yet but as you sit here today.
MR. WEINREB: I object. That's not the relevant question.
MR. BRUCK: It's not the ultimate question but it is relevant.
THE COURT: Well, you did indicate that you thought in some circumstances it could be an appropriate punishment, and I guess the question is: Could you suggest what you think some of those circumstances might possibly be? Or perhaps you could do it by exclusion. You know, what are the circumstances where it would not be appropriate? But you should also keep in mind that anybody who is at the stage of -- where the consideration is whether the penalty should be imposed or not, the person has been convicted of willful murder. So that's a given in any case.
MR. WEINREB: Your Honor, asking him to commit ahead of time to which are the appropriate ones --
THE COURT: I'm trying to gauge -- let me come at it a little different way. These questions were put to you under circumstances you probably weren't necessarily prepared for and so it may be that this is or is not something you've given deep thought to. So we don't want to put you on the spot that you have to think through some of these issues in kind of real time, but if it is something you've thought about and you're able to give some idea of what you meant when you said "appropriate circumstances," then that would be helpful. If you can't do that because you really haven't thought it through, that's a different matter and it might actually be not helpful for you to speculate when you're just doing it off the cuff.
So you see what I'm trying to get at?
JUROR: Yeah, I see what you're trying to get to. I have not spent -- it is not something I've spent a lot of time on. The outline you gave of how to make the decision of aggravating and mitigating factors seems a reasonable one to me, and I would want to hear what, in fact, they have done. I would not want to make up my own rules for this kind of thing and would prefer a thought-out and time-proven framework for decision.
THE COURT: Okay.
MR. BRUCK: On -- if you could turn to page 25.
JUROR: Uh-huh.
MR. BRUCK: Question 93.
JUROR: Uh-huh.
MR. BRUCK: I see you made an observation about your views on whether the death penalty was more severe or less severe. Can you tell me more about what you wrote there, what your knowledge or experience or information --
JUROR: What I basically said is that increasingly over the last, I don't know, 20, 30 years, we have observed that persons who have been convicted of quite atrocious crimes and have then been sentenced to life beyond -- without parole have, in fact, found someone to let them go, so that I do not believe that a sentence of imprisonment without possibility of release is, in fact, the real case; it is really a sentence of imprisonment without perhaps a small chance of release or a large chance of release, depending on how political life evolves over the next 20 years.
MR. BRUCK: So you would think that if the president or political figures are elected in the future, it would change the likelihood of whether a person sentenced to life without release would really be released?
JUROR: Yes.
MR. BRUCK: And your expectation is that there's a pretty substantial chance --
MR. WEINREB: Objection, your Honor. That's a leading question.
THE COURT: Rephrase it.
MR. BRUCK: I'm trying to hear what you just told me. Do you feel that the chance -- even though the sentence is life without release, that there's a good chance it wouldn't really mean that?
MR. WEINREB: That's been asked and answered.
THE COURT: Go ahead. You can answer it.
JUROR: It is very hard to make predictions, especially about the future. I believe, however, that there is some chance of this happening.
MR. BRUCK: And is that a factor that would weigh in your thinking in deciding whether the death penalty should be imposed rather than life without release as it's described by the judge?
MR. WEINREB: Your Honor, I object to that because he hasn't been instructed --
THE COURT: I agree. That's getting into hypothetical decision-making.
MR. BRUCK: Okay. Excuse me. Bear with me.
(Discussion off the record.)
MR. BRUCK: I think that's all I have. Thanks so much.
MR. WEINREB: Your Honor, may I inquire about that?
THE COURT: All right. Briefly.
MR. WEINREB: Good morning. My name is Bill Weinreb. I'm one of the prosecutors in the case.
No one can gainsay your own experience, however, my question is: If you were instructed that the only two possible punishments in this case were the death penalty and life imprisonment without release, and you were instructed that those would, in fact, be -- if the punishment was the death penalty, that the defendant would get the death penalty, and if he was sentenced to life without -- life imprisonment without release, he would, in fact, serve life imprisonment without release, could you put aside what you've learned about other cases in other places and accept that and make your decision based on that instruction?
JUROR: This does not appear to me to be a case where the jury should worry about deeper issues. So, yes, I think I could accept that as a framework for decision.
THE COURT: All set? Okay. Thank you, sir. Just leave the questionnaire there.
(The juror is excused.)
COURT CLERK: Juror No. 263.
COURT CLERK: Juror No. 263.
COURT CLERK: Sir, over here, if you would.
(The juror enters the courtroom.)
COURT CLERK: Have a seat. Speak into the mic so everyone can hear you.
JUROR: Okay.
COURT CLERK: Okay? Thanks.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow my instructions to avoid discussion of the case?
JUROR: Yes.
THE COURT: And also, as much as possible, to avoid any media accounts about the case?
JUROR: Yes.
THE COURT: That is the questionnaire you filled out.
JUROR: Yes, it is.
THE COURT: I want to follow up on some of the questions you gave.
JUROR: Okay.
THE COURT: I see you are a retired truck driver?
JUROR: Yes.
THE COURT: Any employment now?
JUROR: No.
THE COURT: Anything part time or anything?
JUROR: Nope.
THE COURT: Okay. You were -- back in the late '60s-early '70s you were in the Army and served in the military police?
JUROR: Yes, sir.
THE COURT: Any further connection with service as a police officer since then?
JUROR: I took the police officer's exam back then.
THE COURT: Back then?
JUROR: I was accepted in the Town of Spencer, but I passed on that hoping to get something closer. That never came about. And then I took the firefighter's exam, passed that, but was passed over because at that time they were taking minorities. And I lived across the street from a retired fire chief, and even with a high score he said, "They're not going to call you."
THE COURT: So this was when, again, back in the --
JUROR: Back in the '70s.
THE COURT: So any efforts since then to --
JUROR: No. I took up a trade, did that for 25 years, and then switched to truck driving after I got too old for that trade.
THE COURT: What was the trade that you did for 25 years?
JUROR: Installing carpet, ceramic tile.
THE COURT: Okay. Let me ask you to turn to page 20. Oh, let me --
JUROR: I have my wrong glasses on. My other one is in my coat.
THE COURT: My review is that there is no substantial Question 40 issue, so I just -- I'm passing by that.
Question 77, we asked if as a -- as a result of things that you'd read or seen about the events that underlie this case, whether you had formed an opinion about whether the defendant was guilty or not guilty or should receive the death penalty or not, and you wrote "unsure" as to each of those.
JUROR: I have no idea if he's guilty, innocent, and I wouldn't even begin to think without hearing the testimony that's to be put forward to the Court.
THE COURT: You've had a recent experience as a juror in a criminal case --
JUROR: Yes.
THE COURT: -- in the state?
JUROR: Yes.
THE COURT: So you've been through the process through to a verdict?
JUROR: Yes.
THE COURT: So I'm sure you were instructed in that case that a defendant who is accused of a crime is presumed innocent unless and until the government proves that he's guilty by the evidence at trial, and proves that fact by proof beyond a reasonable doubt.
JUROR: Yes.
THE COURT: So you have recent experience with that. And if you were a juror in this case would you be able to fulfill that duty here as well?
JUROR: Oh, yes.
THE COURT: You found that --
JUROR: 100 percent.
THE COURT: -- jury duty to be, I think you said, satisfying?
JUROR: Yes, it was. I enjoyed being on the jury duty. I feel it's part of my duty as, you know, a citizen, to serve if I can.
THE COURT: Okay. We asked also in the questionnaire some questions about attitudes towards the death penalty. If you turn to page 23, the beginning of Question 88, we asked a general question, do you have any views about the death penalty in general, and you said "none."
JUROR: No.
THE COURT: But then in the next question, 89, we asked if you could put on a scale from 1 to 10 whether you believe the death penalty should ever never be imposed or that it should be imposed whenever the defendant has been convicted of an intentional murder and you "strongly favor," Number 10, can you tell us -- that that seems a little bit inconsistent with no view.
JUROR: I believe in the death penalty if the case warrants it. I'm not one to take someone's life unless circumstances and evidence promotes that, but I do believe in the death penalty.
THE COURT: If you'd go to the next page, in Question 90 there are a number of possible statements set forth, and the question asks if you could select one that best describes your feelings about the death penalty in a case where someone has been proven guilty of murder, and you selected E, which is, "I'm in favor of the death penalty but could vote for a sentence of life imprisonment without the possibility of release if I believe that sentence was called for by the facts and the law of the case."
Does that still represent your view --
JUROR: Yes.
THE COURT: -- in summary form?
JUROR: Yes.
THE COURT: So are you saying, then, that you would be open to -- though you favor the death penalty as a general matter, you would be open to --
JUROR: Yes.
THE COURT: -- a sentence of life imprisonment?
JUROR: Open to both depending on the circumstances and the testimony I would hear.
THE COURT: On the next page, at the bottom, Question 95, we asked if you found -- I'll wait till you get there. If you found the defendant guilty and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty --
JUROR: Yes.
THE COURT: -- and you said "yes."
And then on the next page at the top I asked the other side of that question, if you found the defendant guilty and you decided that life in prison without the possibility of release was the appropriate punishment, could you conscientiously vote for life in prison without the possibility of release, and you said "yes."
JUROR: Yes.
THE COURT: Are you sticking to those answers?
JUROR: Yes.
THE COURT: Go ahead.
MR. MELLIN: Thank you, your Honor.
Good morning, sir. I'm Steve Mellin. I'm one of the prosecutors in the case.
JUROR: Good morning.
MR. MELLIN: I want to follow up a little bit on your answers about the death penalty.
You heard the judge this morning describe a little bit about the proces how if the jury gets to the point where the jury is deciding sentencing, the jury will have already found the defendant guilty of one of these capital offenses. You understand that?
JUROR: Yes.
MR. MELLIN: So moving into that process, then the government would put on evidence that we believe tends to show why the death penalty is appropriate and the defense can put on evidence of why they believe life imprisonment is appropriate. Do you understand that?
JUROR: Yes.
MR. MELLIN: Would you -- even though you found the defendant guilty, would you be able to keep your mind open to carefully consider all of the information before you decided what the appropriate sentence would be?
JUROR: Absolutely.
MR. MELLIN: Thank you.
Thank you, your Honor.
MS. CONRAD: Good morning, sir.
JUROR: Good morning.
MS. CONRAD: My name is Miriam Conrad. I'm one of the Mr. Tsarnaev's lawyers.
You said that when you received the summons -- this is Question 75 on page 19. I'm sorry. Do you have that in front of you?
JUROR: I believe so. I have the wrong pair of glasses on.
MS. CONRAD: Let me just read it to you, then. You wrote -- the question was, "To the best of your recollection, what kinds of things did you say to others or did others say to you regarding your possible jury service in this case?" And you wrote, "To my wife, would be proud to serve on this case and jury."
And I just was wondering if you could tell us a little bit more about that.
JUROR: My wife -- I'm very open-minded to just about everything and my wife thinks, for one thing, I'm an alien because of -- I'm very -- I have a very open mind, okay? And as far as something that pertains to, like, this case here, she feels that the defense would love to have me on the jury, and that's where that came from.
MS. CONRAD: But you said you would be proud to serve on this case.
JUROR: I would be proud to serve on any jury.
MS. CONRAD: But is there something in particular about this case that you would be especially proud of or especially interested?
JUROR: Especially interested in? I would like to serve on a jury. I would like to serve on any jury because I feel that's part of my duty to do as a citizen.
MS. CONRAD: Sure.
JUROR: And to protect and serve the country.
MS. CONRAD: But is there any -- but is there anything particular about this case that you feel would make it even more of an honor or to serve?
MR. WEINREB: Your Honor, I object. That's been asked and answered three times.
THE COURT: He's already answered that question.
MS. CONRAD: Do you know why your wife thinks that the defense would love to have you on this jury?
MR. WEINREB: I object to that.
THE COURT: Yeah, I think we'll leave it at that.
MS. CONRAD: I would think the government would want to know the answer to that question.
You were in Vietnam?
JUROR: Yes.
MS. CONRAD: And did you see combat there?
JUROR: Yes.
MS. CONRAD: And where specifically did you serve?
JUROR: I was there from -- I believe it was May of '67 through June of '69, and I was stationed pretty much in two-thirds of the country. I was moving around an awful lot. And I was military MP, I escorted POWs, escorted convoys, ran down modes first in the morning to clear them of mines. I was with the Australians for a short period of time. I was with the Navy Seabees for a short period of time. So I pretty much was all over.
MS. CONRAD: I'm sure you saw many difficult things. I'm wondering if you saw anyone injured or killed by an explosion.
JUROR: Probably far more than you would like to see.
MS. CONRAD: And given that this case involves bombings, do you think that your past military experience would make it difficult for you to see graphic videos of that?
JUROR: No.
MS. CONRAD: There may be evidence in this case that the bombings were motivated, at least in part, by military action in the Middle East. Would your past military service affect your ability to listen to that evidence?
JUROR: No.
MS. CONRAD: In response to Question 77 on page 20 -- if you're having trouble with your glasses -- this part's really small so I'll just try to read it to you. But in this question you were asked whether you have formed an opinion about the defendant's guilt or about the appropriate penalty.
JUROR: No, I have not.
MS. CONRAD: I'm summarizing.
And I appreciate that you understand how important it is to -- for jurors in this case to keep an open mind and listen to the evidence, but I guess I want to ask the question a slightly different way, which is before you were called for jury duty in this case, did you have an opinion about the defendant's guilt?
MR. WEINREB: Your Honor, I object. This is following up on a negative answer.
THE COURT: Well, that's all right.
Go ahead. You can answer.
JUROR: No.
MS. CONRAD: And when you learned that you were summonsed in this case, did anybody else express their opinion about Mr. Tsarnaev's guilt to you?
JUROR: No.
MS. CONRAD: In response to Question 89 you selected 10 as your position -- as your view on the death penalty. And the question says that -- in describing what the different numbers mean, that 10 reflects a belief that the death penalty should be imposed whenever the defendant has been convicted of intentional murder.
JUROR: I believe in the death penalty if it's premeditated murder. If, again, I say circumstances and evidence warrants, whatever the case may be, if it calls for the death penalty, I am for it.
MS. CONRAD: So if in a case where the defendant was convicted of intentional murder, premeditated murder, of more than one victim, would you automatically vote for the death penalty?
MR. WEINREB: Objection. That's a pre-commitment question about --
THE COURT: Let me ask it a different way.
Are there any circumstances in which you would automatically vote for the death penalty without evaluating the pros and cons?
JUROR: No, not automatically.
MS. CONRAD: I guess, sir, I'm just confused because that's what 10 reflects --
MR. WEINREB: I think he explained that.
MR. MELLIN: Objection. It's commentary.
MS. CONRAD: Let me follow up.
Would you always vote for the death penalty in a case of intentional premeditated murder?
MR. MELLIN: Objection, your Honor.
THE COURT: Yeah, he's answered it.
MS. CONRAD: I'm sorry. I'm asking it, I think, a little differently than your Honor did.
THE COURT: Not quite. Well, yes, it is a little different but not enough.
MS. CONRAD: You said that you would -- you believe in the death penalty if the case warrants it, so would your decision about whether to vote for the death penalty depend only on the facts of the crime itself or would you be able to -- or would you meaningfully consider facts about the defendant?
JUROR: I would take into consideration facts about the defendant, what led up to what took place. That's why I say the death sentence is not automatic.
MS. CONRAD: Okay. So can I just ask when you chose 10 on that scale of 1 through 10 --
JUROR: Okay.
MS. CONRAD: -- what you were thinking?
MR. WEINREB: Objection, your Honor.
THE COURT: Yeah, I think we've been over it.
MS. CONRAD: Can I rephrase that?
THE COURT: No, I think it's been explored.
MS. CONRAD: Okay. Thank you very much.
JUROR: You're welcome.
THE COURT: All right, sir. Thank you. You may step out. And just leave the form there.
JUROR: Okay. Thank you. Have a good day.
MR. WEINREB: You too.
(The juror is excused.)
COURT CLERK: Juror No. 264.
COURT CLERK: 264.
(The juror enters the courtroom.)
COURT CLERK: Juror No. 264, would you come over here, please. Have a seat. If you could, speak into the mic so everyone around the table can hear you, okay?
JUROR: All right.
COURT CLERK: Thanks.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to follow my instructions to avoid any discussion of the substance of the case with anybody?
JUROR: Yes.
THE COURT: And as much as possible to avoid any media accounts about what's going on or about the case itself?
JUROR: Yes.
THE COURT: Okay. So that's the questionnaire you filled out. We're going to follow up on some of the questions just to fill in some additional information.
Let me ask you to look at -- well, I'm looking at page 6. The question is: We asked about what your spouse might do for employment. You wrote criminal justice for your wife.
JUROR: I was nervous. I just filled it out quick. But she works for an insurance company. She took criminal justice.
THE COURT: Oh, she took that in school?
JUROR: Yes.
THE COURT: But she hasn't worked in criminal justice?
JUROR: No.
THE COURT: What kind of insurance, auto insurance --
JUROR: Auto insurance and homeowner.
THE COURT: And you work for an auto dealer. Is that it?
JUROR: Yes, sir.
THE COURT: Can you tell us what you do?
JUROR: I'm a service advisor at Commonwealth Motors in Lawrence, Mass.
THE COURT: And you just deal with people who bring their cars in for repairs. Is that the idea?
JUROR: I'm the guy who's got to tell you you need a brake job, unfortunately.
(Laughter.)
THE COURT: You indicated in an earlier question that you would have no difficulty in serving on the case even though it was a long case? It wouldn't impact your employment in any significant way?
JUROR: It probably would. I answered that because I was being selfish, honestly, thinking about -- not thinking about, you know, my job, having an issue with it. Most likely they might have an issue with it.
THE COURT: I don't really care as much about them as about you. Would it affect you? Will you get paid if you were here four days a week instead of being on the job, I guess is the question.
JUROR: Probably not.
THE COURT: Have you talked about that with them?
JUROR: No, I never thought that -- you know, I never think that I was going to get this far.
THE COURT: Yeah. What's the basis of your compensation? Is it an hourly rate or is it a salary or --
JUROR: Salary.
THE COURT: Salary?
How many service advisors are there?
JUROR: We're short-staffed. There's always one person out all the time, so there's like three of us. So we're a growing dealership, so we're getting pretty busy, so...
I speak Spanish so they need somebody that speaks Spanish there all the time, you know.
THE COURT: So you don't have any firm idea whether you would be paid or not if you -- or do you have an idea?
JUROR: I don't have an idea, to be honest with you, because I didn't think I was going to be here again. To be honest with you, I thought that was a one-day thing, I guess. But I guess you're still going through the process of everything else.
THE COURT: Okay.
MR. WEINREB: Your Honor, I think we're --
THE COURT: Yeah. Okay. Thanks. That's all.
JUROR: Thank you.
(The juror is excused.)
COURT CLERK: Juror No. 267.
COURT CLERK: Juror 267.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, please. Have a seat. Do me a favor and speak into the mic so everyone can hear you, okay?
JUROR: Okay.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow my instructions to avoid discussion of the case with anyone?
JUROR: Yes.
THE COURT: Except your presence here, obviously that you had to come.
JUROR: Yes.
THE COURT: And also to avoid any media accounts of the case or proceedings?
JUROR: Yes.
THE COURT: Okay. So that's the questionnaire, and we're going to follow up on some of the answers that you gave. I want to start with page 5, Question 10, where you indicated it would be difficult, you thought, to serve on an extended case like this. Can you tell us a little bit about that?
JUROR: Basically, I'm involved in general management of a lumberyard, and the ownership does travel for different conferences and things, different trade shows, which would leave us short of help as far as management goes at the business at the time.
THE COURT: Only when they're traveling?
JUROR: Only when they're traveling.
THE COURT: So how often would that be during the course of, say, three, four months?
JUROR: It could be two to three times.
THE COURT: You recall that the schedule for the case would be Monday through Thursday, so Fridays, you know, which would normally be a business day -- I assume Saturday at a lumberyard would be a business day too, correct?
JUROR: Correct.
THE COURT: So you would be available on those days.
JUROR: No problem.
THE COURT: The next page, in Question 13 we asked about your spouse's employment.
JUROR: Yes.
THE COURT: She's an administrator. Can you just tell us --
JUROR: She's a principal in an elementary school.
THE COURT: I see. You have -- I'm looking at Question 34 on page 12. You have a couple of friends who are police officers: one a state police officer and one a Falmouth police officer?
JUROR: Correct.
THE COURT: Can you give us some idea of what your relationship is with those folks?
JUROR: Social. You know, not -- I wouldn't say best friends by any means, but definitely social events. One I see more than the other. One I deal with at work quite often.
THE COURT: Is that the Falmouth officer?
JUROR: Yes. Because he's also a contractor, you know, so he does both.
THE COURT: And how about the state police officer?
JUROR: The state police officer I see mostly on social events; not on a daily basis by any means. Maybe two, three times a year type thing.
THE COURT: Okay. Obviously in a case like this there will be law enforcement personnel testifying as witnesses and so on.
JUROR: Yes.
THE COURT: Would your friendship with these two folks affect in any way your ability to be an impartial judge of all that testimony?
JUROR: No, not at all.
THE COURT: Let me ask you to look at page 20 and Question 77. In this question we asked whether based on what you'd seen or read, or from any other source, that you formed an opinion that the defendant was guilty or not guilty or that he should receive the death penalty or not, and you answered "yes" to you formed an opinion that he was guilty and you had formed an opinion that he should receive the death penalty.
We then asked if you had answered yes to any of the questions, would you be able or unable to set aside your opinion and base your decision as a juror about guilt and/or punishment based only on the evidence presented in court, and you said "unable." You would be unable to set your prior decisions aside and do that.
JUROR: Correct.
THE COURT: Could you explain that for us?
JUROR: The evidence would have to be very compelling for me to think otherwise of what I know or what I've seen, I guess. I don't really know anything more than what we've read or what we have seen in the media, you know, prior to this situation.
THE COURT: Well, in our criminal justice system a defendant who's accused of a crime is presumed to be innocent of the crime unless the government bears its burden of proof by proving at trial that he's guilty beyond a reasonable doubt.
JUROR: Correct.
THE COURT: We ask jurors to faithfully apply those principles in a case which requires the jurors to focus on the evidence presented in the case, evaluate it, and then decide whether that evidence convinces them that the defendant is guilty of the crime he's charged with or not to a degree that they can say they have no reasonable doubt about it. We also tell jurors that they're to focus only on the evidence in the case and not things they may think they know from other sources.
From your answer it appears you think you would be unable to do that, and that's what I'm probing a little bit.
JUROR: I would feel strongly that I would probably be unable do that knowing what I know. I'm not saying I couldn't, but I feel strongly that I probably wouldn't. The evidence would have to be, I guess, pretty compelling or reverse what I've seen or thought I've seen in my mind as far as what has been happening.
MR. BRUCK: I think the parties are in agreement.
THE COURT: All right, sir. Thank you.
JUROR: All right.
(The juror is excused.)
THE COURT: I didn't -- 269 I wanted to see.
[REDACTED]
MR. CHAKRAVARTY: Just for context, your Honor, the question -- there are some answers on the questionnaire that could put some context into this.
THE COURT: Let me take a minute to read this.
(Pause.)
THE COURT: Could we cut the audio for a minute?
(Discussion at sidebar and out of the hearing of the public:)