4.Juror 292 — Deferred Service Exemption and Voir Dire on Corrections Employment and Impartiality
204 linesMS. CLARKE: Your Honor, we did have an issue to address before --
COURT CLERK: Hang on one second.
THE COURT: Sorry. We have something.
MS. CLARKE: I apologize. We think this juror may be exempt. He's employed by the Plymouth Sheriff's Department as a corrections --
THE COURT: I had that thought, too. I didn't look it up. Can you grab the statute book, civil?
MS. CLARKE: The plan --
THE COURT: I think this is fine. We don't need to cut the audio for this.
MS. CLARKE: Here's the plan, Judge, if you want that.
THE COURT: Both, yeah. 1863, maybe. This is not --
MS. CLARKE: Is that not the plan?
THE COURT: That's not the plan.
MS. CONRAD: What was it? Sorry.
THE COURT: It's Morgan questions.
MS. CLARKE: However subtly we can get to you.
(Laughter.)
MS. CONRAD: I was just checking to see if you were paying attention. I pulled something out that had staples in it. There was also a case that I gave to Mr. Weinreb.
MR. WEINREB: I gave it back.
MS. CLARKE: I have it. But I was going to send my dinner plans over instead.
THE COURT: It more or less quotes the statute. It's pretty much the same thing. It says -- the statute says, "Members of fire or police departments of any state or subdivision," and then "public officers in executive, legislative or judicial branches of any state or subdivision." I don't think it's entirely clear. He's employed by a subdivision of the state. That's clear. It's a public office in the sense that the Sheriff's Department is a public office. I guess it's part of the executive.
MS. CLARKE: We think so.
THE COURT: Where is it? Which county?
MS. CLARKE: Plymouth.
THE COURT: Is Plymouth one of the real counties, or is that one of the former counties? I think it's one of the former counties.
MR. CHAKRAVARTY: You're right. I think it's a district now essentially. It's not a county.
THE COURT: Right. I think the only so-called -- I'm being maybe a little flip with it. Some countries still have their traditional status. I think those are mostly the western counties. Most of the Boston and eastern counties, I believe, the county government has been abolished. So I actually don't know where the Sheriff's Department fits these days.
MR. WEINREB: We were going to propose going ahead with the juror, reserving ruling on a strike on this ground, that he's exempt. We'd like to research the issue a bit, see if we can shed any light on it. We obviously don't want a juror on the jury who's exempt, but we do want to not exclude somebody just because we didn't have -- we didn't have time.
THE COURT: I guess, if he's here, it doesn't hurt to ask him the questions. We can deal with it.
COURT CLERK: Juror No. 292. Sir, over here, please, if you would.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow my instructions to avoid talking about the case?
JUROR: Yes.
THE COURT: And to, as much as possible, avoid media accounts of the case?
JUROR: Yes.
THE COURT: So you're employed as a correctional officer?
JUROR: I am.
THE COURT: You've done that, it looks like, for about ten years?
JUROR: Coming up on ten this spring.
THE COURT: Always at the same place?
JUROR: Yes.
THE COURT: Any special responsibilities, duty assignments, anything like that? Are you kind of a line officer or what?
JUROR: No, normal officer, I guess.
THE COURT: What do you do? Let me ask it that way.
JUROR: I'm a correctional officer.
THE COURT: No. I mean, what are your duties?
JUROR: Security rounds.
THE COURT: In the --
JUROR: Inside the facility.
THE COURT: In the Plymouth County House of Correction?
JUROR: Yes.
THE COURT: As opposed to jail?
JUROR: House of Correction.
THE COURT: Are they distinct in Plymouth County? Jail being pretrial detention; House of Correction --
JUROR: Both. I'm involved in both.
THE COURT: Are they co-located? I should know this.
JUROR: They're separated -- they're segregated but they're in the same building.
THE COURT: Which side are you on? You do both?
JUROR: I've done both, yes.
THE COURT: What are you doing now, which side?
JUROR: Right now I'm in pretrial.
THE COURT: How long have you been doing that?
JUROR: A couple months.
THE COURT: That's the questionnaire you filled out, so it may help to look at it from time to time as I follow up on some of the questions.
If you look at Page 12, at the bottom, Question 36, you referred to this defendant's codefendant?
JUROR: Yes.
THE COURT: He actually doesn't have a codefendant. Who were you thinking of, do you know?
JUROR: Last name was Matanov.
THE COURT: Okay. And he's housed in the --
JUROR: He was.
THE COURT: -- in the pretrial?
JUROR: He was in the Pretrial Segregation Unit.
THE COURT: Did you have any contact with him?
JUROR: I did.
THE COURT: How much?
JUROR: A few days.
THE COURT: Anything unusual?
JUROR: No, not at all.
THE COURT: Let me ask you about some of your relatives that you've told us about. Your father is a retired police officer?
JUROR: Yes.
THE COURT: Where was he a police officer?
JUROR: Abington.
THE COURT: How long did he do that?
JUROR: Around 35 years.
THE COURT: So it was basically his single career?
JUROR: Yes.
THE COURT: He's now doing some private security?
JUROR: Right. He retired from there.
THE COURT: But his career was as an Abington police officer?
JUROR: Right.
THE COURT: You said -- this is in Question 16, on Page 7 -- that you have a brother who is a "federal officer."
JUROR: Yes.
THE COURT: Do you know more specifically?
JUROR: I don't have much details.
THE COURT: Do you know what agency he works for?
JUROR: No.
THE COURT: How long has he done that?
JUROR: Say, about four years.
THE COURT: Is it a law enforcement officer? Is that what you're thinking? Or are you thinking the officer of a federal civil agency?
JUROR: I'd say more law enforcement. He's contracted out from what I know.
THE COURT: Does security of some kind?
JUROR: Yes, yes.
THE COURT: For a federal agency? In other words, he's -- there's a contractor that provides security services for, say, the Department of Agriculture or something like that; is that what you're thinking?
JUROR: I would say yes.
THE COURT: Coming back to your work, we asked people -- we told people about the schedule in the case and so on and then asked if they thought it would be a special hardship to serve on a case that will perhaps have the length that this case will have. And you wrote that it would be a personal hardship with work and after-work responsibilities. I think that's what that says.
JUROR: Yes. I'm a high school basketball coach.
THE COURT: So what does that involve for you?
JUROR: After-work practice, games.
THE COURT: On a weekly basis, what are we --
JUROR: Six days a week.
THE COURT: When -- give me the time frame. I assume it's after school?
JUROR: After school.
THE COURT: Is it late afternoon, early evening?
JUROR: 2 to 7, roughly.
THE COURT: This is public high school?
JUROR: Public high school.
THE COURT: Are you the basketball coach? Are you assistant coach?
JUROR: Assistant varsity; head J.V. coach, junior varsity.
THE COURT: At the bottom of Page 14 and onto the top of 15, we asked some series of questions about whether you had strong negative or positive views about, first, prosecutors, then defense attorneys, and then law enforcement officers. You said you didn't as to the prosecutors or law enforcement officers, but you said that you might question their line of work about defense lawyers. Can you tell us what led you to have that view or say that in the form?
JUROR: For me -- and I feel like my line of work, you can't prejudge people. But for some charges, it would be -- if I was a defense attorney, it would be hard for me to back that person, I would say.
THE COURT: Somebody charged with particular offenses, you think that should be difficult -- defense attorneys should have a difficult time representing somebody with --
JUROR: Me personally.
THE COURT: Okay. Page 19, Question 74, we asked what you thought when you first received the summons in the case. You said you weren't thrilled. Can you flesh that out a little bit?
JUROR: Well, it's been a long day today, sitting in that room. Missed a practice I would have liked to have been to. This isn't the most comfortable situation, everyone staring at me. So, yes, I would say I wasn't that thrilled.
THE COURT: Okay. On the next page, we asked, in Question 77, whether, as a result of things you'd seen or read, you had formed an opinion at the time you filled out the questionnaire that the defendant was guilty or not. And then we asked about what penalty he might get. You answered the four parts of that question by saying, yes, you had formed an opinion that he was guilty. You are unsure about what the penalty -- you had not, I guess -- or were unsure about what the penalty should be.
Then we asked, if you had answered yes to any of the questions, would you be able or unable to set aside your opinion that you had formed and base a decision about guilt or punishment solely on the evidence presented in the trial, and you checked "unable." Can you tell us what you were thinking when you gave that answer?
JUROR: This was a highly -- the media was all over this case, and I feel like you guys are dealing with this more than anyone, that everyone that comes in here, maybe nine out of ten, has a strong opinion of what happened and their view of it. So before I sat down with that trial, before I even got to day one, I would have my opinion, guilty, before I even sat.
THE COURT: The question is whether you could, thereafter, in the course of the case, listen to the evidence presented by both sides really but principally by the government in the guilt phase and base an evaluation, as to any particular charge, whether the defendant was guilty or not, base an evaluation on the evidence you heard in the case and not on things you might have known from other sources. Would you be able to do that, is the question.
JUROR: I don't think I would. I've got a strong -- from what I saw, I've got a strong opinion what my beliefs are. I don't know. I stick with my gut instinct on a lot of things.
MS. CLARKE: Your Honor, I think the parties are in agreement. Thank you.
JUROR: What's that?
MS. CLARKE: Thank you.
JUROR: You all set?
MS. CLARKE: He gets to make that call.
JUROR: Okay. Sorry.
THE COURT: Okay. Yeah. Thank you.
JUROR: Thank you.
COURT CLERK: Juror No. 296. Sir, over here if you would, please. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow my instruction to avoid discussing the substance of the case?
JUROR: Yes, yes.
THE COURT: And also to avoid, as much as you can, media accounts about the case?
JUROR: Certainly, yeah.
THE COURT: Let's start with a little personal information about you. You're currently retired?
JUROR: Yes, I am.
THE COURT: You had been a software engineer?
JUROR: Yes.
THE COURT: Any particular emphasis, field of practice?
JUROR: Software quality control, quality assurance.
THE COURT: You did that for?
JUROR: About 14 years.
THE COURT: Before that?
JUROR: I worked in the biomedical/biotech field.
THE COURT: You don't use social media?
JUROR: I don't use it at all. I have no interest in it.
THE COURT: Let me ask you to turn to Page 20.
JUROR: Yes.
THE COURT: In Question 77 we asked whether, based on things you'd heard or seen in the media or otherwise, you had formed an opinion, (a), that the defendant was guilty or (b) not guilty; and if so, (c), should he get the death penalty or (d) not get the death penalty. You indicated, as to (a), "yes," that you had formed an opinion, based on those sources, that he was guilty. And then you said you were unsure about the penalty.
Following that series of questions, we asked in the next paragraph, if you answered yes to any of those, which you did, would you be able or unable to set aside your opinion and base your decision about guilt -- and let's focus on that because that's what you answered -- solely on the evidence that would be presented to you in court? And you indicated "able." So, in other words, I understood what you were saying is you thought you would be able to set aside the opinion and base a decision --
JUROR: Yes. It's not contradictory. The evidence has to stand on its own merits. I mean, if A, B, and C points to a certain conclusion, then subsequently you find out that A, B, and C is not what it appeared to be, then you have to change your conclusion. So that's what I mean.
THE COURT: Right. You understand that in our criminal justice system a person accused of a crime is presumed to be innocent of the crime unless and until the government proves he's guilty by the evidence at trial and proves it beyond a reasonable doubt.
JUROR: Right.
THE COURT: So in a criminal trial, the focus is on the evidence produced during the course of the trial.
JUROR: Right.
THE COURT: And that's the, if you want to call it, information base on which jurors are to make their decision.
JUROR: Right, right.
THE COURT: What we ask jurors is to put aside other ideas they might have about what is true or false from other sources and focus on the trial evidence. Would you be able to do that?
JUROR: Sure, yes, I would.
THE COURT: And would you be able to come to a conclusion that was different from or perhaps even opposite to what you thought provisionally before that?
JUROR: It's possible.
THE COURT: You say "it's possible." Go ahead.
JUROR: I mean, you know, there's been such a volume of publicity about this and information from reliable sources. So when you ask me do I think that Mr. Tsarnaev is guilty, I had to check off "yes" because I believe he is guilty. I would say it comes down to probabilities. I mean, sure, under the theory of anything is possible, he could be innocent. But I believe there is such an overwhelming amount of evidence that indicates that he is guilty, I would have to say that the possibility, the probability, of him being found innocent, it would approach zero.
THE COURT: The question really that I'm getting at is not the likelihood of his being convicted or not but whether you can make that decision yourself in a trial based on the evidence in the trial as opposed to things you thought your --
JUROR: That's why I checked I was able, yes, sir.
THE COURT: We asked some questions about the death penalty and attitude toward it. This is beginning on Page 23.
JUROR: Yup.
THE COURT: In Question 88, we asked, in general, do you have views about the death penalty, and you wrote, "I cannot firmly say I am in favor of the death penalty."
JUROR: Right.
THE COURT: Would you tell us what you were thinking when you wrote that?
JUROR: Well, it's probably even more firm that I am not in favor of the death penalty than I may have indicated. You know, I have a number of arguments with the death penalty. Nothing to do with this case in particular, my argument would be with capital punishment as an institution. So, you know, there is a number of arguments that I believe are valid for not imposing the death penalty. Some are mundane statistical and some go all the way to the other end of the spectrum that would verge on moral considerations.
One thing that troubles me particularly is the subjectivity involved. In one case, you might get a set of jurors who vote to impose the death penalty. But in another instance, you would have a set of jurors that would say that they would not impose that.
THE COURT: On the same set of facts?
JUROR: On the same set of facts. I'm uncomfortable with the subjectivity involved with that, which is different from saying some people -- you know, if it could be said of anybody, that they deserve to receive the death penalty, sure, I think there are a lot of instances that, if you look at it, you say, definitely, this person should pay the full price for his crimes. But, you know, when you're sitting in the actual jury, I have problems with it.
THE COURT: I understand. We're just trying to find out what your views are. In Question 89 you indicated that you were pretty strongly on the strongly oppose pole.
JUROR: Yes, yes.
THE COURT: And then the next page, Question 90, we asked you to select a statement that came the closest to your views. You selected (b), which was you're opposed to the death penalty and "would have a difficult time voting to impose it even if the facts supported it." Is that --
JUROR: Yes, that's correct.
THE COURT: Is that what you've been telling us here this afternoon as well?
JUROR: That's right; that's right, yeah. I think possibly -- you know, maybe it should be utilized in very rare circumstances, maybe a presidential assassination, something like that.
THE COURT: So the selection you made said you would have a difficult time voting to impose it even if the facts supported it. Can you envision voting to impose it?
JUROR: Maybe it would be more than difficult, yup. I don't think I could impose it in this particular case.
THE COURT: Okay. We asked, on Page 25 at the bottom, Question 95, about this case. It said, "If you found this defendant guilty and you decided the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty?" Your answer was "no."
JUROR: No.
THE COURT: Is that still your answer to that question?
JUROR: That's still the same.
THE COURT: Any follow-up?
MR. BRUCK: Please. Hi. I'm David Bruck, and I'm one of Jahar Tsarnaev's lawyers. I just want to follow up on the questions that the judge asked you about the death penalty for a minute.
Do you remember when you came and filled out the questionnaire, and before you filled it out, Judge O'Toole talked to you -- to everybody about the responsibilities of serving on a jury?
JUROR: Yes.
MR. BRUCK: At the end he said, We need your help.
JUROR: Yes.
MR. BRUCK: Well, that's kind of what I want to talk to you about.
JUROR: Okay.
MR. BRUCK: I hear what you've said about the death penalty. I'm not going to try to change your mind. I would be the last person to do that. But the question is really whether a juror can go out of their comfort zone and follow the law and make a fair decision between two options that the law provides and make themselves be open-minded to both, or is a juror -- have they closed their mind to one possibility and they're saying, I could only vote for life; I could never vote for death, no matter what the facts.
That's a long build-up, but you see what my question is. Which group are you in? Could you go out of your comfort zone and be fair to both sides?
JUROR: Because of the ambiguity that I have, I would have to state today that I would not vote to impose under any circumstances.
MR. BRUCK: Okay. Well, thanks very much.
THE COURT: Thank you, sir. That's it. Thank you.
So about quarter of 4? Does that sound okay? Okay. We'll see you back here at quarter of 4.
(Recess taken at 3:18 p.m.)
(The Court enters the courtroom at 3:52 p.m.)