3.Individual Voir Dire — Juror No. 318 and Remaining Venire (Part 2)
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(In open court:)
THE COURT: So let me ask you to turn to page 20 of the questionnaire. In Question 77 near the top of the page we asked if, based on the things you'd seen in the media or otherwise, had you formed an opinion about various matters that the defendant was guilty or that he was not guilty or that he should receive the death penalty or should not, and to each of those you selected the option "unsure."
JUROR: Unsure.
THE COURT: Can you tell us a little bit about what you were thinking when you answered that question?
JUROR: I didn't feel like -- I followed the case -- I had enough facts to form an opinion, so I was unsure of each one of those. I wasn't positive yes or positive no.
THE COURT: Okay. I'm sure you realize that in our criminal justice system when somebody's accused of a crime they are presumed innocent unless and until the government proves by the evidence at trial that the person is guilty.
JUROR: Yes.
THE COURT: And proves that beyond a reasonable doubt.
JUROR: Yes.
THE COURT: So the burden of proving someone guilty of a crime is always on the government, and it must do it by sufficient evidence at trial to convince jurors beyond a reasonable doubt of the fact that the person is guilty.
If you were a juror in this case, would you have any difficulty in applying those principles and being sure that the government is held to its burden of proof in this case?
JUROR: I wouldn't have any difficulty with that, no.
THE COURT: A corollary of that is if you, after evaluating the evidence, thought the government had not proved one of the charges or more, had fallen short in doing what it had to do, would you be able to return a verdict of not guilty?
JUROR: Yes.
THE COURT: We've asked in Question 82 on the next page about whether you had made any contributions or wore Boston Strong things. You say you have a Boston Strong T-shirt or --
JUROR: It no longer fits me after the snowstorm. I got larger; it got smaller. I don't know. But, yes, I did purchase a Boston Strong T-shirt at my niece's -- she's -- does the cross-fit and they were selling them there, so I bought one.
The bumper sticker, my daughter --
THE COURT: When was that, near the event?
JUROR: No, this was quite a while afterwards. It was an event in Canton much --
THE COURT: Give us an idea.
JUROR: I'm trying. Dates I'm not good with. It was at least a year later. It wasn't anytime right after.
And the bumper sticker --
THE COURT: There were some sort of anniversary events.
JUROR: Yeah, no. They had a tent set up at the affair, the cross-fit affair, with all the Boston Strong memorabilia, articles.
THE COURT: And your daughter has a -- bought a bumper sticker?
JUROR: She bought it for me.
THE COURT: Was it at the same event?
JUROR: No, she had given it to me at Christmas.
THE COURT: Did you use it?
JUROR: It's on the car.
THE COURT: In Question 83, you said your son went to UMass Dartmouth for a semester? When was that? What year was that, if you remember?
JUROR: I believe it was 2008.
THE COURT: Beginning on page 23 at Number 88 we asked a series of questions about attitude towards the death penalty in general and perhaps with reference to this case. 88 asks for general views on the death penalty. You said "none." Does that represent your --
JUROR: I hadn't -- well, the question just had appeared -- I really have not thought about it until this question came up, so I didn't want to put down something that I really, on a day-to-day basis, never gave any thought to. So to put anything else down I didn't think would be fair.
THE COURT: Would you change that answer today?
JUROR: Would I change that answer today about the death penalty? The only thing I would add to it is I would have to hear the evidence before I could decide whether I thought the death penalty -- I mean, I could go either way. It would all depend on what evidence I heard.
THE COURT: In the next question we asked if you could indicate on a scale from 1 to 10 where you might locate yourself, a 1 being belief that the death penalty should never be imposed, a 10 reflecting a belief that it should be imposed whenever a defendant has been convicted of intentional murder. And so you selected 7.
It may be a false precision to using numbers, but can you tell us what led you to make that choice?
JUROR: I'm reading it over myself because I don't want to --
THE COURT: Take your time.
(Pause.)
JUROR: I think I put 7 because it's not something that I'd go for a 10 or -- I'd have to -- I wouldn't take it lightly -- a decision like that lightly. I would have to give it a lot of thought and time. So I think a 7 is where I still feel. It isn't something I could just decide, you know, on a moment's...
THE COURT: So then on the next page, Question 90, we asked it sort of a different way. We put it in words and asked you to pick which of the various options, if any, you thought expressed best what you were thinking about the death penalty, and you chose D: "Not for or against. Could vote to impose it or could vote to impose a sentence of life imprisonment without possibility of release, whichever I believed was called for by the facts and the law in the case."
Today would you say that represents your view?
JUROR: Yes. Yes.
THE COURT: So you heard me this morning explain a bit about the process in the penalty phase where the government would offer evidence of what are called aggravating factors that made this crime perhaps worse than others --
JUROR: Uh-huh.
THE COURT: -- for which -- when someone's been convicted of murder, and then there would also be mitigating factors presented by the defense that would say that it's not the right penalty for this case.
Would you be able to evaluate all that with your fellow jurors and come to your own decision about whether the death penalty was the right choice --
JUROR: I believe I could, yes.
THE COURT: -- or that life imprisonment without the possibility of release is the right choice?
JUROR: Yes, I could come to my own conclusion.
THE COURT: Either way?
JUROR: Either way. Either way. Either way.
THE COURT: At the bottom of page 90 -- I'm sorry -- 25, Question 95 -- now kind of focusing on the case at hand, it asks if you found Mr. Tsarnaev guilty and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty. And you wrote, "I'm not sure."
JUROR: And now I don't know why I did that because if I found he was guilty and there was enough evidence and the appropriate one was the death penalty, then I would have to vote yes, so I would change that. That's after I heard all the facts and I felt that was the appropriate punishment.
THE COURT: Part of what the question might be getting at is even if you intellectually believed it was the right thing to do, could you personally do it?
JUROR: Yeah. Yes.
THE COURT: And then Question 96 is sort of the companion question to that, asks the other side of the equation. If he was guilty and you decided life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment without the possibility of release?
JUROR: Yeah, I stand by that. Yes.
THE COURT: Okay. Follow-up?
MR. CHAKRAVARTY: Just briefly. Good afternoon. My name is Aloke Chakravarty. I'm one of the prosecutors.
I just wanted to tease out your answers to those last few questions the judge asked you. You said that you checked off the "I'm not sure" on that Question 95, and you would change now. Was it -- could you explain why the --
JUROR: Yes, I can.
MR. CHAKRAVARTY: -- what the misunderstanding was?
JUROR: The misunderstanding was I probably didn't read it correctly because it's saying in there if I found that the evidence was presented and I came to the conclusion that there was enough evidence. I didn't read that correctly at the time.
MR. CHAKRAVARTY: Okay. So you think -- because some of the earlier questions were just about your feeling about the death penalty in general, and for that you said you're not sure, it depends on the case.
JUROR: Well, what I meant when I wasn't sure, I didn't have any evidence. I'd have to hear the evidence before I made that decision, so...
MR. CHAKRAVARTY: And so understanding you're going to get instructed again, and the judge gave you some instructions this morning, about how to go through the process after a defendant has been convicted of a crime and after aggravating factors have been presented and after mitigating factors have been presented, some of which could include factors about the defendant, not necessarily the crime, could you weigh both of those and ultimately decide that death is the appropriate punishment and then vote for death?
JUROR: I'm going to say you confused me a little with all that.
MR. CHAKRAVARTY: I'm sorry. There was a lot there, so that's a fair question.
JUROR: There was. I'm not sure how to answer it.
MR. CHAKRAVARTY: I'll rephrase it. I'll rephrase it.
At the end of the process --
THE COURT: Actually, I think it's been answered.
MR. CHAKRAVARTY: If I may, just one?
THE COURT: All right. If it can be targeted.
MR. CHAKRAVARTY: The vote that you would have to make is not -- I think you suggested that you -- if that's the choice that you would have to make, you never have to vote for death. Every juror always has an option not to vote for death. But so it's actually an affirmative choice that you, as a juror, would have to make like every other juror.
Could you make that choice based on your own beliefs coupled with the facts and the law?
JUROR: I don't know if it would be my beliefs that would lead me to that decision; it would be what was said in the court and what the facts were. And I think it would be up to everyone at this table to help me make that decision. So I can't answer that right now because I don't know what I'm basing it on.
MR. CHAKRAVARTY: So I'm just trying to understand whether, in fact, you could -- even given what you just said, that -- whether you could or could not vote if you were persuaded --
MR. BRUCK: Haven't we covered it?
THE COURT: I think we've had enough of it.
MR. CHAKRAVARTY: Fair enough. I think so too.
One other point, your Honor?
THE COURT: A different area? All right.
MR. CHAKRAVARTY: I think you said there was a Boston Strong bumper sticker on the back of your car that your daughter gave you? Does that affect your ability to be fair and impartial in this case?
JUROR: It does. The Boston Strong bumper sticker to me doesn't represent -- it represents to me the way the city came together and helped, and just showing the unity of Boston. That's what it represents to me. Not the crime itself; it's the aftermath of how everybody came together and supported each other and helped each other out. And it was -- that's what it means to me. I'm sure it has different meaning to different people.
MR. CHAKRAVARTY: And there were several people that you had noted on your questionnaire around you with family members or friends who are in law enforcement. Does the fact that you know so many people in law enforcement -- does that affect your ability to be fair and impartial in this case?
JUROR: No, it doesn't.
MR. CHAKRAVARTY: Thank you.
MR. BRUCK: Good afternoon.
JUROR: Good afternoon.
MR. BRUCK: I've got good news for you. I'm the last person to ask you questions and I don't have too many.
JUROR: I'm catching a two o'clock train anyway so you can take your time.
(Laughter.)
MR. BRUCK: Well, don't feel singled out.
THE COURT: It will be there about three, by the way.
(Laughter.)
MR. BRUCK: Everyone is asking all the jurors questions like this, so it's not just you.
I'm David Bruck, and I'm one of Jahar Tsarnaev's attorneys, and I just wanted to clarify a few things.
You are an employee of the city of Brookline?
JUROR: The Town of Brookline, yes.
MR. BRUCK: The Town of Brookline. Okay.
And your husband, if I heard correctly, is now the head of security for City Hall?
JUROR: Yes.
MR. BRUCK: Okay. And how many -- that is a -- not a police --
JUROR: He's not a police officer, no.
MR. BRUCK: It's like a security --
JUROR: But when I think of security, I think of the white shirt and little badge. He doesn't wear any of that. He's -- I wish I had more specifics. It's a brand-new job in January. So it's -- it's more of the City of Boston, like when there's events coming, he has police officers that work under him.
MR. BRUCK: They work under him? Okay. So it's a law enforcement position, in a sense, although he's not a police officer?
JUROR: It's not really law enforcement, no.
MR. BRUCK: Okay.
JUROR: We do communicate, but it's -- we do speak, it's just...
MR. BRUCK: I got you. I understand.
You said that -- the judge asked you a lot of questions, and so did the prosecution, about the death penalty, and I just want to be sure I'm clear. You said -- first of all, on guilt or innocence, you picked "unsure" because you hadn't heard the evidence. And of course "unsure" covers a lot. I'm unsure if it's going to snow in the next few days, but I think it will because I've read the forecast. But if someone made me check, I'd say "unsure."
And that's what I want to ask you about. Understanding you're unsure about guilt or innocence, do you have an opinion as you sit here about whether they got the right guy?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Yeah, I think the question is formally objectionable.
MR. BRUCK: Do you have an opinion today based on anything -- everything that you've heard about whether Mr. Tsarnaev is guilty?
JUROR: No, I don't -- I'd have to hear the evidence. I don't know what role -- I have no idea until you tell me, until someone tells me. So I have no opinion right now.
MR. BRUCK: Okay. Now I'd like you to assume -- I know it hasn't happened, but I'd like you to assume you're on the jury and the evidence was presented by the government that convinced you beyond a reasonable doubt that he was guilty of the charges in connection with the marathon and you heard the charge involving Officer Collier. So we're beyond that. Guilt beyond a reasonable doubt. You've heard the evidence, and you've rendered your verdict.
And of course the law then allows more evidence to be presented, aggravating, mitigating. But understanding that at that point you will have heard the evidence that convinces him -- convinces you that he's guilty, has convinced you, do you have an opinion then about what the penalty should be --
MR. CHAKRAVARTY: Objection, your Honor.
MR. BRUCK: -- as you sit here today?
THE COURT: I think it's a confusing question.
MR. BRUCK: If you assume guilt -- I know you're not assuming guilt, but I need to get you to imagine that -- imagine with me that he's guilty and you found that -- you're satisfied by the evidence on guilt, do you have an opinion as you sit here today about what the punishment should be, life or death?
JUROR: No, I don't. Because I can't -- I can't go there in my mind. It's too important to guess how I'd be feeling. So I'm not -- I'd rather not answer it. I don't know.
MR. BRUCK: Okay. And one last thing. I mean, the judge will instruct you about -- excuse me just a moment.
(Discussion off the record.)
MR. BRUCK: You mentioned that you knew one person on the witness list. I'm sorry, that's Question 85.
JUROR: Billy -- I know who it is.
MR. BRUCK: And that -- can you tell us about what --
JUROR: My relationship with him?
MR. BRUCK: Yeah.
JUROR: I went to high school with Billy. I don't see -- I don't really see him. I know him. His wife is a -- I grew up with. And I don't even know what role he played when all this happened. So I have no connection in that area with him. And I probably haven't seen him, himself, in years. But I do know him. When I saw his name, I recognized the name.
MR. BRUCK: And he's a police officer?
JUROR: He is.
MR. BRUCK: Okay. Would the fact that a police officer has been killed -- that's one of the charges in this case -- and your relationship with him or all of the other law enforcement family connections and professional connections that you have in your own work, would any of that, or all of that put together, affect the way --
JUROR: Absolutely not. Absolutely not.
MR. BRUCK: -- you look at this case?
Are you sure?
JUROR: I'm positive. Now would be my time to tell you. I'm positive.
MR. BRUCK: That's exactly right.
And if the police officer that you said you know testifies in the trial, do you think you would look any differently at his testimony --
JUROR: No.
MR. BRUCK: -- as compared to anybody else?
JUROR: Nope.
MR. BRUCK: Okay. Thank you very much.
THE COURT: Would you write down for me the name -- your husband's name?
JUROR: Sure.
THE COURT: I don't want you to say it for the record.
JUROR: Sure. I'll draw a stick figure.
(Witness complies.)
THE COURT: Make it smile.
(Laughter.)
THE COURT: Thank you.
JUROR: You're welcome.
THE COURT: And that's it.
JUROR: Thank you very much.
(The juror is excused.)
THE COURT: We'll do one more and then break for lunch? Hold off just a minute.
COURT CLERK: Hold off.
[REDACTED]
COURT CLERK: Are you ready?
THE COURT: Yes.
COURT CLERK: Juror No. 321.
THE COURT: I'm going to go directly to the death penalty questions on this fellow.
MR. BRUCK: What about to the music questions?
THE COURT: Do you want to find out?
COURT CLERK: Juror No. 321.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here. Have a seat if you would, please.
JUROR: Okay.
COURT CLERK: Do me a favor and speak into the mic so everyone around the table can hear you.
THE COURT: Good afternoon.
JUROR: Hello, Judge. How are you?
THE COURT: Have you been able to follow my instructions to avoid any discussion of the case --
JUROR: Yes. Yup.
THE COURT: And as much as possible to avoid any exposure to media articles about the case?
JUROR: Yes.
THE COURT: Or shows, I guess?
JUROR: Yup.
THE COURT: So we have the questionnaire that you filled out --
JUROR: Yes.
THE COURT: -- and we're going to follow up on some of the questions.
I think we're all interested to know about your career.
JUROR: Really? A singer-musician. I play all around -- different Irish bars around pretty much New England, and had done it in Ireland as well.
THE COURT: Okay. I want to, I think, actually start with the end of the form, in a sense.
JUROR: Sure.
THE COURT: And that's where we ask about your attitudes and beliefs concerning the death penalty.
JUROR: Yes.
THE COURT: So if you'd turn to page 23, it would help to follow. If you want to take the clip off for convenience, you can do that. Page 23. It's pretty close to the end.
JUROR: Okay.
THE COURT: Got it.
JUROR: Yes.
THE COURT: So Question 88, this is where we ask a series of questions related to the death penalty and its implications and so on. So this asks for general views in Question 88.
JUROR: Yes.
THE COURT: And you wrote, "I don't agree with the death penalty. Don't think it is right."
JUROR: Yes.
THE COURT: Is there anything else you want to add to that? Do you want to qualify it, explain it, amplify on it?
JUROR: I suppose just pretty much on the moral purpose, I think that the death penalty is -- I wouldn't be in agreement with it myself. I think there could -- that there's too many mistakes and too many things that have went on over the years with death penalty cases that I think one person that could be in the wrong, it's not a fair enough answer for me, if you understand what I mean.
THE COURT: Okay. In the next question we tried to gauge the strength of your views on this by asking you to put yourself on a spectrum from strongly opposed to strongly favor, where strongly -- according -- as you see in the preamble, a 1 reflects a belief that the death penalty should never be imposed.
JUROR: Yes.
THE COURT: And you selected that.
JUROR: I agree with that.
THE COURT: Does "never" mean "never"?
JUROR: "Never" means "never."
THE COURT: And we tried again in Question 90, the next one --
JUROR: Yes.
THE COURT: -- to gauge it differently, by words rather than numbers?
JUROR: Yes.
THE COURT: And here you selected, "I'm opposed to the death penalty and will never vote to impose it in any case no matter what the facts."
JUROR: That hasn't changed.
THE COURT: That's your view?
JUROR: That's my view.
MS. CONRAD: May I, your Honor?
THE COURT: Go ahead.
MS. CONRAD: Good afternoon, sir. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
JUROR: Good afternoon.
MS. CONRAD: You mentioned that one of the things that concerns you about the death penalty is the possibility of a mistake?
JUROR: Yes.
MS. CONRAD: Understanding that if you were a juror in this case you would not even be considering the death penalty as an option unless the jury had found beyond a reasonable doubt that Mr. Tsarnaev was guilty, so if the jury had made that conclusion and understanding that a juror is never required to vote for the death penalty, would you be able to meaningfully consider the aggravating and mitigating circumstances in deciding whether you personally thought the death penalty was the appropriate punishment in this case?
JUROR: I still don't think that the death penalty is appropriate.
MS. CONRAD: Thank you very much.
THE COURT: Thank you, sir.
JUROR: Thank you.
THE COURT: That's it.
JUROR: That's it?
COURT CLERK: Leave the questionnaire here. We'll take care of it.
(The juror is excused.)
THE COURT: Why don't we break.
MS. CLARKE: Why don't we what?
THE COURT: Why don't we break. We have five more. So we'll come back at two?
MR. BRUCK: Sure.
(The Court exits the courtroom and there is a recess in the proceedings at 12:50 p.m.)
(The Court entered the courtroom at 2:05 p.m.)
COURT CLERK: Juror No. 323.
COURT CLERK: Juror No. 323.
COURT CLERK: Sir, over here, please, if you would. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon, sir.
THE COURT: We need the mics not only for us but because it's being --
JUROR: That's quite all right.
THE COURT: Thanks for your patience.
JUROR: Okay.
THE COURT: Have you been able to follow my instructions not to discuss the case with anyone since you were here last time?
JUROR: Yes, sir.
THE COURT: And, as much as possible, to avoid any exposure to media stories about the case?
JUROR: Well, I read the paper every day, and I watch the news two hours every day. So over the course of the past year, I've obviously seen and read and heard quite a bit.
THE COURT: Right. But since January 5th, have you been able to avoid those as I asked you to?
JUROR: I'm not talking to anybody about it. I have avoided it, yes.
THE COURT: So let me -- this is the questionnaire you filled out. Let me follow up on some of the --
JUROR: Certainly.
THE COURT: -- questions and answers in the form.
Tell us what you do for a living.
JUROR: I work at the Souvenir Store directly across from Fenway Park, and I handle retail sales inside Fenway Park.
THE COURT: When you say "handle," I presume you don't do it all yourself. You manage, supervise?
JUROR: I'm the manager. I manage sales. And we have quite a few personnel that work at vending locations there, and I stock them, and I keep inventory on them and settle them out at the end of the weeks and years.
THE COURT: So I'm just learning this as a Red Sox fan. That's all Twins Enterprises inside the park as well as across the street?
JUROR: Uh-huh. We got a contract there probably five or so years ago.
THE COURT: Let me ask you to turn to Question 74.
JUROR: Page number, please?
THE COURT: 19.
JUROR: Page 19. Okay.
THE COURT: In answer to Question 74, you said -- we asked, What did you feel or think when you received the juror summons. You said, "I felt nothing could change my mind of his guilt."
JUROR: That's correct.
THE COURT: Turn to the next page.
JUROR: Yup.
THE COURT: Question 77, we asked there whether you had formed an opinion based on things you'd seen and heard --
JUROR: Yup.
THE COURT: -- that he was guilty. And you said "yes."
JUROR: Uh-huh.
THE COURT: There were other parts to that question you didn't answer. Then below that we asked, If you had answered yes, which you did, would you be able or unable to set aside your opinion and base your decision about guilt solely on the evidence that was presented to you in court? And you said you would be unable.
JUROR: I believe that would be true. It's kind of like saying erase everything you have in your head from something. I don't know that I would be able to erase my memory of everything that I've read, seen, and heard.
THE COURT: Yeah. Let's come back to that in a minute. But let's go to the day of the Marathon itself.
JUROR: Yes.
THE COURT: Of course, the Red Sox played that day.
JUROR: I was working that day.
THE COURT: You were there.
JUROR: Uh-huh.
THE COURT: What happened? What did you see?
JUROR: The game had actually ended right around the time of the incident.
THE COURT: Now, on a day like that -- or actually on that day, as the game ended, where were you?
JUROR: I would be inside the park.
THE COURT: You would be inside the park.
JUROR: But as the game ends somewhere near -- once the game is over, I would go back to Twins, which is across the street, two totally separate entities really. Twins is not owned by the Red Sox. Red Sox don't own Twins. Two totally separate entities. I work for the Souvenir Store who has rights to sell merchandise in the park.
THE COURT: So did you continue working that afternoon at the store?
JUROR: I remember walking into the store and somebody said something just happened at the Marathon. And we have TVs in the store, and it was like everybody was looking at what happened. I ended up having to come back into the city that night to have the police go through all our stands to be sure that there were no other problems within our locations. So I came back into the city that evening.
THE COURT: Okay. And then I presume you followed events during the week and --
JUROR: Absolutely. How could you not?
THE COURT: Right. So it's perfectly understandable that people have impressions about what happened.
JUROR: Uh-huh.
THE COURT: The question is whether, in the formal trial process, you could do what we ask jurors to do, and that is, in accordance with the law, to presume somebody innocent unless proven guilty; to require the government to prove by evidence at trial the fact of guilt if it is to be proved.
JUROR: Uh-huh.
THE COURT: And to hold the government to its burden of proof, which is beyond proving guilt beyond a reasonable doubt.
JUROR: Uh-huh.
THE COURT: So that's really the question. Do you --
JUROR: I believe I would have a difficult time doing it.
THE COURT: You think you would have a difficult time?
JUROR: Absolutely.
THE COURT: Is it partly because of your personal involvement in events, your closeness?
JUROR: It might be that. I'm not sure. I remember seeing some raw footage that day which I'll never forget. Yeah, there was a lot going on that day, and it really struck me deeply.
THE COURT: Okay. On this topic, does anybody want to follow up?
MS. CLARKE: Your Honor, could the Court go to the Series 88 and forward and inquire about those?
THE COURT: All right. On Page 23, beginning with Question 88, we asked about attitudes toward the death penalty.
JUROR: Yup.
THE COURT: 88 was a general question. If you have views, what are they? And you said you think "death is too easy a punishment. I believe rotting in a cell for 50 years is a more appropriate punishment."
JUROR: I would feel that way if it was a sentence done to myself. I would rather be dead than spend 50 years in jail.
THE COURT: This is sort of a general question, so it's kind of asking you what you think about the death penalty as a policy matter or something like that.
JUROR: Uh-huh.
THE COURT: Do you think that is a --
JUROR: I'm opposed to the death penalty on a moral basis. I don't think that any human being has the right to decide whether somebody else should live or die. I feel like that's up to God and not up to myself.
THE COURT: The next question we asked you to sort of indicate on your -- on a scale of 1 to 10, from strongly opposed to strongly favor. You selected "3," which is on the opposed side, but it's not as strong, I guess, is the way to say it, as it might be.
JUROR: Uh-huh.
THE COURT: And particularly in light of what you just said --
JUROR: Uh-huh.
THE COURT: -- do you think 3 does represent your view?
JUROR: Probably not, probably not. Probably more towards 1 than 3.
THE COURT: Then on Question 90 --
JUROR: Yup.
THE COURT: -- we asked if you would look at a series of statements and see if one there selected --
JUROR: Yes, sir.
THE COURT: -- might represent your view. You picked (c), which said, again, you're opposed to the death penalty, but it says, "I could vote to impose it if I believed the facts" --
JUROR: I was trying to be a little, you know, objective in some manner. But I'm very deeply opposed to it.
THE COURT: Okay. Any? I think that's all I have.
MS. CLARKE: Could I ask just a couple of questions?
THE COURT: Okay. All right.
MS. CLARKE: On Question 89 -- good afternoon. I'm sorry. My name is Judy Clarke. I'm one of Mr. Tsarnaev's lawyers.
JUROR: Okay.
MS. CLARKE: On Question 89 you went from -- today from a 3 to a 1. Could you help us understand what changed your mind?
JUROR: I was just trying to be a little objective to this, but I'm very opposed to the death penalty.
MS. CLARKE: Am I hearing you --
JUROR: Yup.
MS. CLARKE: -- tell us that you would be unable to deliberate with other jurors, consider their views, weigh the aggravation and mitigation and, even though a juror is never required to impose a death sentence, consider it if you thought it was appropriate?
JUROR: As I said, I don't think that another human being has a right to decide whether somebody else should live or die. I don't think I should have that power.
MS. CLARKE: And if the judge tells you you do have that power and it is an obligation of citizenship to weigh and consider all options --
JUROR: I would have an extremely difficult time.
MS. CLARKE: Okay. Thank you.
THE COURT: All set? Thank you, sir.
JUROR: All done, sir?
THE COURT: Yup.
JUROR: Should I take this?
THE COURT: No. Just leave it. We'll collect it.
JUROR: Thank you, everyone.
COURT CLERK: Juror No. 324.
COURT CLERK: Juror 324.
COURT CLERK: Sir, over here, please. Have a seat, if you would.
THE COURT: Good afternoon.
JUROR: Good afternoon, your Honor.
THE COURT: Thanks for your patience. I appreciate that it's a long process.
Have you been able to follow my instructions given at the last occasion to avoid talking about the case with anybody?
JUROR: I didn't really talk about it, but you really can't avoid the media completely.
THE COURT: What we ask -- obviously, you see headlines. A news report comes on TV. What you can do is avoid it when you've seen it. Have you been able to do that?
JUROR: Yes. Like the Globe last week, the front page of the Globe and in the Globe Magazine, but my wife read them. I didn't.
THE COURT: All right. That's what we ask.
You're currently retired?
JUROR: Yes.
THE COURT: Doing anything part time or anything.
JUROR: I do some consulting, but I haven't done much over the winter.
THE COURT: Tell us what you did before you retired.
JUROR: I designed and built power plants, both nuclear and fossil-fired generating electricity.
THE COURT: How long did you do that? What was your career?
JUROR: Forty-five years.
THE COURT: And so after a 45-year career in that industry, I manage you got a pretty senior position when you left.
JUROR: Fairly senior. I stayed within the design end of it rather than the engineering or the management because I really enjoyed that part of it.
THE COURT: The employer that you worked for, it says the Shaw Group. Is that --
JUROR: Shaw Group bought Stone & Webster Engineering out of bankruptcy.
THE COURT: It had been Stone & Webster?
JUROR: Yes.
THE COURT: Okay. We asked about social media. You say you use Facebook a little bit.
JUROR: I do.
THE COURT: For social matters or do you --
JUROR: Just social, just keeping in touch with people, nothing -- I don't get onto any of these chat rooms or any of that kind of thing.
THE COURT: News sites or anything like that?
JUROR: I do use news sites. But, again, it's easy enough to avoid.
THE COURT: So would you take a look at the questionnaire. We put yours in front of you. And I want you to look at Page 20 -- let me ask you this before we get to that. I think it said you retired in 2013?
JUROR: Yes.
THE COURT: When during the year did you retire?
JUROR: September, I think it was.
THE COURT: So you were still working at the time of the Marathon bombing events and so on?
JUROR: Yes, I was.
THE COURT: Where were you?
JUROR: I was here in Boston.
THE COURT: On the channel here?
JUROR: No, no, I'm sorry. I mean in the area. I was at my office. We were in Stoughton at that time.
THE COURT: I see. When you said "Boston," you meant the Boston area?
JUROR: Boston area.
THE COURT: But you were in Stoughton?
JUROR: Yes.
THE COURT: There used to be a Stone & Webster building across the channel.
JUROR: Yeah, the Fidelity building right there at South Station was the Stone & Webster building.
THE COURT: You were in Stoughton?
JUROR: Stoughton, yes.
THE COURT: Okay. Now let's come to this page. Question 77 we asked whether, as a result of things you'd seen in the news media or learned from any other source, had you formed an opinion that the defendant was guilty, and you checked the box "yes." And then we asked further in that question whether you had formed an opinion that he should receive the death penalty or should not. For both of those you checked "unsure."
And then we asked, If you had answered yes to any of these questions, which you did, would you be able or unable to set aside your opinion and base your decision about guilt and punishment solely on the evidence that will be presented to you in court? And you selected the box that said "unable." Would you tell us what you were thinking as you answered this question?
JUROR: Well, I'm afraid I'm pretty biased. I just can't help it. But I'm not really sure that anyone should receive the death penalty. I don't -- I probably -- you know, it's very true that --
THE COURT: We'll come to that. I want to explore that with you. Let's talk first about -- you said you had an opinion that he was guilty. As I'm sure you know, that in a criminal prosecution in our system, a person who is accused of a crime, the person is presumed to be innocent unless the government proves that he's guilty by evidence presented to the jury during the course of the trial.
JUROR: I understand.
THE COURT: And convinces the jury beyond a reasonable doubt that he is, in fact, guilty of the crime. And we ask jurors to pay attention to that body of evidence that's produced and decide whether it is convincing to establish that the person is guilty of the crime. We ask people to put aside things they may have from other sources in making that decision and focus only on the trial evidence.
Do you mean to indicate by your answer here that you think you would be unable to do that?
JUROR: I would say I'm about 90 percent sure I would not be able to do that, yes.
THE COURT: Why do you think that?
JUROR: Just from everything I saw during that week of all the media coverage. And I did not know anyone specifically involved in it, but friends of friends and friends of law enforcement officers that were involved in everything, it just makes it very hard for me not to have that opinion.
THE COURT: Okay. Let's turn to Page 23. We asked a series of questions about your attitude toward the death penalty. You started to get there and I interrupted and now coming back to that. So Question 88 we asked, if you had any general views about the death penalty, what they were. And you said, "Not to be taken lightly." Can you tell us what you meant by that or what you think about it?
JUROR: I'm not necessarily a pacifist, but I don't necessarily believe it's right to take anyone else's life as punishment for something no matter what the circumstances. I don't say I wouldn't, but it would be -- I would have to really seriously consider everything. I would find it very, very hard.
THE COURT: Of course, it's a serious decision, obviously.
Let's look at the next question, 89. We asked you to indicate where you were on a spectrum from strongly opposed to strongly favor in the case of someone who had been convicted of murder, and you selected No. 4.
JUROR: Yes.
THE COURT: Which is sort of in the middle rather than either end. It doesn't seem as strong as what you were just saying.
JUROR: Well, it's below the middle a little, but it's still not something that I could completely put aside that that could happen.
THE COURT: Okay. Let's look at the next page. We asked the question a slightly different way. Question 90, we set forth a number of possible positions and asked you to pick one that you thought came close to yours or represented yours. You circled (d), which was you're not for or against the death penalty. You could vote to impose it or could vote for a life imprisonment, whichever you believed was called for by the facts and the law in the case. That also seems a little different from what you're saying here.
JUROR: Well, I meant it to be pretty much the same thing, that, you know, it's just not something that is to be taken lightly at all. It's something that enormous consideration has to be given to.
THE COURT: Well, I guess one way of asking the question is: If, after having given it enormous consideration, serious consideration, along with other jurors, could you come to a decision that you thought the death penalty was appropriate and should be imposed?
JUROR: If I thought it was appropriate, I guess I would, yes.
THE COURT: And, similarly, if you thought life imprisonment without possibility of release was --
JUROR: Same thing.
THE COURT: You would do the same?
JUROR: Yes.
THE COURT: And that actually -- if you look at the bottom of Page 25, we asked you a pair of questions. The first one, we asked if you found this defendant guilty and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty, and you said "yes."
JUROR: Yes.
THE COURT: Turn the next. Next question, we asked the same thing about life imprisonment. If you found him guilty and you decided life imprisonment without the possibility of release was the proper punishment, could you conscientiously vote for life imprisonment without the possibility of parole.
JUROR: Yes.
THE COURT: And you said "yes." So I guess I'm a little puzzled in the end where you come down on this. Are you able, though you would find it difficult, as anybody understandably might -- are you able to say, that after consideration of the evidence, depending on how you assessed it and weighed it, you could possibly vote for the death penalty or you could possibly vote for life imprisonment?
JUROR: Yes.
THE COURT: And you won't know until you're in that position?
JUROR: Exactly. That's -- that is what I meant to convey, yes.
THE COURT: Okay. But if you're in that position and you come to a judgment that the death penalty is appropriate, would your views about whether it's appropriate to take somebody's life have an effect on your ability to actually vote to impose the death penalty?
JUROR: No, depending on the evidence. I could do that if the evidence warrants it.
THE COURT: Okay. Follow-up?
MR. MELLIN: Yes, your Honor. Thank you. Good afternoon, sir. I'm Steve Mellin. I'm one of the prosecutors on the case. If I can just follow up a little bit with the questions Judge O'Toole was asking you and, in particular, your statement that you said, I think that -- you don't believe it's right to take a life no matter what.
JUROR: No, I don't under any circumstances. I don't believe anyone has the right to take anyone else's life. But under the laws of this country, if I'm given the responsibility of making that kind of a decision, then I'll have to deal with that.
MR. MELLIN: That's what we're all trying to drill down a little bit on that and try to figure out how does your internal belief that you don't have to take a life, how does that play in the situation where you would be deciding whether or not to take someone's life?
JUROR: I don't understand.
MR. MELLIN: Well, there would come -- there could come a point where the jury would be deciding between life and death. You understand that, right?
JUROR: Right.
MR. MELLIN: You heard a little bit of the instructions this morning about how this would work, right?
JUROR: I understand that, yes.
MR. MELLIN: So there could come a time where, after the jury finds the defendant guilty, the jury would be deciding the sentence. You understand that, right?
JUROR: Absolutely.
MR. MELLIN: And if you were on the jury, you would be deciding whether or not to take someone's life.
JUROR: That's right.
MR. MELLIN: And how would you be able to do that given your own internal belief that you don't believe that it's right to take a life?
JUROR: It's all based within the law. I personally -- I couldn't pick up a gun and hurt anybody. But if the law states that this is the penalty for whatever has been decided, then that's what I've got to decide within those parameters.
MR. MELLIN: Right. But you understand from the judge's instructions this morning that at no time is the jury mandated or directed what the appropriate sentence is, right?
JUROR: No, but there are guidelines.
MR. MELLIN: Right, right.
JUROR: That's what I'm speaking to.
MR. MELLIN: The guidelines are about aggravators and mitigators, and the jury would then weigh those aggravators and mitigators.
JUROR: Yes.
MR. MELLIN: But then there is no guidelines for what is the appropriate punishment.
JUROR: This is the guideline, right here.
MR. MELLIN: Right.
JUROR: I would have to decide that at the time.
MR. MELLIN: Right. And when you -- just for the record, you indicated that it's really your heart or your body and soul that's going to make that call.
JUROR: Right.
THE COURT: As you come into that though with a belief that it's not right for anyone to take someone else's life, how would you ever be able to consider the death penalty as an appropriate punishment?
JUROR: I believe it's not right to take anyone else's life. But if we're speaking specifically to this case, someone has already done that. I have to decide what his punishment will be for that.
MR. MELLIN: Right.
JUROR: Are we going to go back to the Bible and say an eye for an eye? That will have to happen when it happens or if it happens.
MR. MELLIN: Let me change horses real quick. We were talking about coming into the case with a bit of a bias. And I think that you, in fact, said that you felt you were biased in this case.
JUROR: I'm sorry. I am, yes.
MR. MELLIN: Fair enough. We appreciate your honest answers to those things. When you say you're biased, I think you indicated that you're saying that you would not be able to put aside what you've already heard and read and seen in the media and decide this case just based on the evidence in the courtroom.
JUROR: I wouldn't say I wouldn't be able to put aside. But based on everything that we've been shown here so far, with the list of potential witnesses and whatnot, I guess I'm from Missouri. Show me. Show me that I'm wrong in saying that I've got a bias here.
MR. MELLIN: Right. But when you say "show me I'm wrong," then are you putting the burden on the defendant to show you that he's not, in fact, guilty?
JUROR: Yes.
MR. MELLIN: Okay. Thank you.
MR. BRUCK: Good afternoon. My name is David Bruck, and I'm one of Jahar Tsarnaev's lawyers. I just have one or two questions to ask you.
In talking about the death penalty decision, did you gather from the judge's instructions this morning that the way that works is that the death penalty is never the -- the crime never requires the death penalty. The jury never has to impose the death penalty --
JUROR: I understand that, yes.
MR. BRUCK: -- after there's been a conviction. The jury can consider mitigating factors, such as things about the defendant that might have nothing to do with the crime but might show that a life sentence is more appropriate, the fact that the person is young, for example.
JUROR: Exactly.
MR. BRUCK: Right. And those are the things that a jury can consider. And then the government gets to show things that make the crime worse. And then the jury has the freedom to decide which is the penalty that should be imposed.
JUROR: I -- like I just finished saying, show me that I'm wrong in believing that this man committed these crimes.
MR. BRUCK: Okay. I'm talking now about the death penalty. You don't have a fixed opinion about the -- what the punishment should be.
JUROR: No, I do not.
MR. BRUCK: You have an open mind about that.
JUROR: Yes, I do.
MR. BRUCK: Excuse me.
(Discussion held off the record.)
MR. BRUCK: That's all. Thank you.
THE COURT: All right. Thank you. You may step out. Just leave the form there. We'll collect it.
COURT CLERK: Juror No. 328.
COURT CLERK: Juror 328.
COURT CLERK: Ma'am, over here, please. Have a seat, if you would.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thanks for your patience.
Have you been able to follow the instructions I gave last time to avoid discussing the case in any substance with anyone?
JUROR: Yes.
THE COURT: And also, as much as possible, to avoid media accounts or reporting on the case? You have to say yes for the court reporter.
JUROR: Yes.
THE COURT: So that's the questionnaire you filled out. We're going to follow up on some of the answers you gave and perhaps ask you to elaborate on some of the things.
First, I want to focus on your employment, what you do and how the trial might affect that.
JUROR: I work at a company largely in the customer service role. We deliver meals to schools and elder services. So I'm talking with clients mostly all day and also business development to bring in more clients.
THE COURT: If you want to look at the form, we asked -- we set out -- this is on Page 5, Question 10. We set out the schedule that we would be following. It's basically a four-day-a-week, 9-to-4 proposition, and that it might last a number of months. And we asked if there was any special hardship if you had to serve on that schedule. You said, "Yes, I work at a salaried job and could need that income."
There are two things I want to ask you about that. Sometimes salaries continue. A wage earner who has to be there on an hourly basis to get an hourly wage might be one thing, but sometimes salaries might continue. Do you know in your situation whether your salary would continue if you were serving as a juror?
JUROR: I have not confirmed that they would keep my income coming in. I really doubt it because I don't think that they would. So that's why I would kind of need that income. I would have to confirm with my job.
THE COURT: Why do you think they would not?
JUROR: They don't have a history of paying past -- like, just on personal leave and different things, they haven't kept up with that.
THE COURT: Okay. And the second part of it, you said you could -- is it would or could? I'm reading it wrong. I guess it's "would need."
JUROR: "Would need," sorry.
THE COURT: So give me an idea of your daily routine, I guess, at work. What would a typical day involve?
JUROR: Usually in the morning, I'm on the phone most mornings if the meals aren't at the appropriate locations or dealing with different clients. And the rest of the day, I'm working on contracts or on the phone with new clients as business and sales and also working on longer projects such as events or other special projects.
THE COURT: Where is the business located?
JUROR: Roxbury.
THE COURT: The form indicates -- we had a box for you to check if you supervise people.
JUROR: I supervise one person.
THE COURT: How big is this -- is the company?
JUROR: Administrative staff is about ten people. But in the kitchen, like, making meals, it's about 20 to 30.
THE COURT: You use Facebook, Twitter, and Instagram, you say?
JUROR: Uh-huh.
THE COURT: Any others?
JUROR: Nope, not really.
THE COURT: It looks like from your answer the one you use the most is Instagram.
JUROR: Yes.
THE COURT: Is that all mostly social matters?
JUROR: Yes.
THE COURT: Related to your work or anything?
JUROR: No, just social.
THE COURT: I'd like you to look at Page 19. The Question 70 at the top of the page, we asked what radio programs you might listen to. One of the ones you listed was Matty in the Morning. Is that during a commute?
JUROR: Yeah.
THE COURT: You came in here on January 5th, I think?
JUROR: Uh-huh.
THE COURT: What was the date of the broadcast? The 5th or the 6th, Matty in the Morning, I'm told, had a -- there was some discussion of this case during one of those. Did you hear that?
JUROR: Yeah, I did.
THE COURT: Was that the morning you came here?
JUROR: Uh-huh, when I was driving.
THE COURT: What did you think of it?
JUROR: They were just -- they weren't really talking too much about the case. It was mostly just that it was happening and that they knew someone being called for jury service.
THE COURT: Okay. Let me ask you to look at Question 77 on the next page. In this question we asked whether you'd formed an opinion on various matters based on things you'd seen in the media or learned otherwise. And one was whether you had formed an opinion that the defendant was guilty or not guilty. And to those two, first, it looks like you indicated "unsure" and then you changed it to say, "yes," you had an opinion that he was guilty and, "no," the converse of that, that you didn't have an opinion he was not guilty. Am I right that you moved on that? You first thought unsure, and then you changed it to yes and no?
JUROR: Yes.
THE COURT: Can you tell us what you were thinking about when you made those --
JUROR: Well, the question doesn't have guilty of what, and I know there are several charges. But if it was guilt of the actual event of the bombing, then I have -- yes, I've already made up my mind that the defendant has played an active role in that. Not guilty, I'm not sure because I didn't know to what extent of guilt there is.
THE COURT: Okay. Down in the answer to 78 you wrote -- and this is in your own words -- "I believe he is guilty of the explosions and aftermath but do not know to what extent." That's more or less what you sort of just indicated.
JUROR: Yes.
THE COURT: I'm sure you understand that in a criminal prosecution the person who's accused of committing a crime is presumed innocent, or not guilty, as sort of the default position unless the government moves the jury off that position by producing evidence at trial which convinces them beyond a reasonable doubt that, as a matter of fact, he is guilty. Do you understand those principles?
JUROR: Yeah, yup.
THE COURT: So we ask -- it's not surprising that jurors would have some impressions about what happened, perhaps things stronger than impressions. We ask them if they are able to concentrate on the evidence presented at the trial and limit their judgment to that evidence and decide on the basis of that whether the government has fulfilled its burden of proof in the case and satisfied the jury by the evidence that the defendant was guilty or not. That involves, as I say, setting aside other ideas from other sources.
We asked at the bottom part of the question, if you had formed an opinion, if you had answered yes to any of the questions, would you be able or to unable to set aside your opinion and base your decision about guilt and/or punishment solely on the evidence presented in the course of the trial. And you checked the box indicating that you were able to do that. Can you tell us about that?
JUROR: I feel like in every situation I always try to look at both sides of every story. And if there was evidence presented that I had never heard of or that would -- obviously, you have to start with a blank slate in every case, is what you were describing, of the laws of our country. So, yes, I would be able to put aside my previous decision. But just answering that question truthfully, that is where I am at currently.
THE COURT: But you feel that you could focus on the trial evidence --
JUROR: Yes.
THE COURT: -- and make that the basis for your decision-making?
JUROR: Yes, of course.
THE COURT: At the bottom of the page, Question 80, you say that a close friend was near the second bomb when it went off.
JUROR: Yes.
THE COURT: Would you tell us about that?
JUROR: Two of my -- a friend and her friend were near the finish line at the explosion. They were really rattled, and then they had to walk home. And they found other friends on their way back. They lived in South Boston. And they didn't really know what was happening until way later. I was at home. I was going to go into the Marathon that day, but I had to work.
THE COURT: You were working from home, is that --
JUROR: At that time I was working -- I was waitressing so --
THE COURT: That was before you went to your current job?
JUROR: Uh-huh, yeah.
THE COURT: Well, does the -- does the experience of your friend -- would it have any effect on you as you listen to the evidence in the case and made whatever decisions you had to make?
JUROR: I mean, I did know that friend and a good number of other people that were there, and I have heard their stories and they have -- I did know what they had to go through in the months afterwards but --
THE COURT: Likely, people talked about it in the days and weeks right after it. Have you had conversations with them as time has gone on about --
JUROR: Yes.
THE COURT: -- events? Does it come up from time to time?
JUROR: Yeah, less frequently in the past six months to a year.
THE COURT: Question 81 on the next page, you said you know someone who had part of an ear torn off by shrapnel. Can you tell us about that?
JUROR: Uh-huh, yes. His dad was running, and he was trying to meet his family. And he came off the T, and he was on the other side of the street near the finish line when the bomb went off. And so he -- yeah, his ear got torn, and he was rushed to the hospital. And his dad kept going, just kept running because he found out that his son had been hurt. So his dad ran to the hospital after the race.
THE COURT: You say you know someone. Can you tell us --
JUROR: I went to high school with him so friends of friends.
THE COURT: Somebody you currently see as a friend or just --
JUROR: We have an acquaintance but, like, friends of friends.
THE COURT: But you have contact, say, on an ongoing basis even if it's sporadic?
JUROR: Yeah.
THE COURT: How is he doing?
JUROR: Fine.
THE COURT: In Question 82 we asked about whether you took part in any activities after the events such as One Fund or the Boston Strong merchandise and so on. You indicated that friends and family have done so, but apparently you haven't yourself, is that it?
JUROR: I've supported to the One Fund as well.
THE COURT: You have, okay.
JUROR: Yeah, donated.
THE COURT: Do you have any Boston Strong merchandise?
JUROR: I don't think I have. I do. But I have friends that do, yeah.
THE COURT: Beginning on Page 23, at Question 88, we ask a series of questions about jurors' attitudes towards the death penalty.
JUROR: Uh-huh.
THE COURT: 88 itself is a question about the death penalty in general. If you have some views, what are they? And you said you're not completely against the death penalty, and I'm not -- the next sentence is, you say, "Keeping a person alive to feed and shelter them for the rest of their life is another way of death." And then, finally, you say, "I have never" -- I guess you meant "been" -- "in a situation where I had to pick a side" except when you had a debate in school, right?
JUROR: Uh-huh.
THE COURT: We'll put that aside. Tell us about the first two sentences of that, how that expresses your view about the death penalty in general.
JUROR: If I would say, like, looking at the scale of 89, I'm definitely -- I lean towards opposing it, but I'm not completely against it. I've read research supporting both sides on, like, economical benefits. And I find cases in both sides to say one is better for the economy, as in moral reasons. If someone does something so horrible that -- as a justice system, that's what the jury sees fit, then I'm not against that.
THE COURT: So it sounds like you've done a fair amount of reading about the subject. Is there a reason why?
JUROR: Like past, during -- in school.
THE COURT: Sorry?
JUROR: In the past, like, during school, for various projects but nothing very recent.
THE COURT: If we go to the next page, Question 90, we asked you if there was a statement among the several you had to choose from that best described your feelings about the death penalty in a case involving someone who's been proven guilty of murder, and you selected (c), which is, you're opposed to the death penalty but could vote to impose it if you believed the facts and the law in a particular case called for it. Is that a fair summary of your attitude?
JUROR: It is while I'm sitting here, but if I was put in that situation, I think it's a very different situation to talk about it than being in it. That's kind of how I see myself right now. If I was placed, I don't know if I could actually go ahead with it. But, again, you're on a jury of more than yourself. So if there are other people in that group, then you're making a decision as a group.
THE COURT: Well, as I said this morning, of course, each juror makes his or her own decision and doesn't have to agree with the others at all.
JUROR: True, too.
THE COURT: I think you're referring to what you wrote in at the bottom. You said, "I'm not completely against the death penalty, but it would be hard to live with the knowledge that I was part of sentencing someone to it." Is that what you were saying?
JUROR: Yeah.
THE COURT: So let's actually turn to the next page, at the bottom, Question 95. Getting more specific, we say, If you found this defendant guilty and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty? And you indicated you're not sure.
JUROR: Yeah. I mean, on paper, I would lean towards yes if all evidence and that is what I felt was needed as me as a juror. But, again, I don't know what I could do personally if I'm put into that situation.
THE COURT: Because you're not sure that, even if you were intellectually satisfied that it was appropriate, you're not sure you would want to be the one who made that decision --
JUROR: Yes.
THE COURT: -- is that what you're saying?
JUROR: Yeah, uh-huh.
THE COURT: Okay.
MR. CHAKRAVARTY: Just a few more. At the risk of belaboring this issue, I'm going to ask it a little bit differently. You say that there are family members or friends that might look at you differently if -- depending on what you vote for in the case. Can you explain what that concern is?
THE COURT: Is that 94?
MR. CHAKRAVARTY: I think 94.
THE COURT: Question 94 on Page 25.
JUROR: I guess I took it -- I placed myself in that situation. And even though I am open-minded to both sides, if I came across someone that I knew they were part of a jury and sentenced someone to death, I mean, I would definitely just look at them very differently than, I don't know, anyone that I just met.
MR. CHAKRAVARTY: Do you think -- when you say "look at them differently," what do you mean?
JUROR: I guess it's not like better or worse. It's more just you went through something very hard, and you know that that's on your conscience for the rest of your life.
MR. CHAKRAVARTY: I'm sorry. I didn't introduce myself. I'm one of the prosecutors.
On Question 90 you said -- you wrote in that you would have to live with the knowledge that you were part of a sentence. The weight of living with the knowledge, is that something that would affect your ability to vote for the death penalty?
JUROR: Again, I -- I would like to say it wouldn't affect my ability to do so, but I'm not in that situation right now. So I don't know what I would actually do. I feel like I would be able to listen to the evidence and do what is needed to me as a juror. But if I was actually presented with it, I don't know morally if I could go through with it. I mean, I think I could, but I'm not in that situation yet.
MR. CHAKRAVARTY: That's -- the only reason I'm asking the questions about that is because we're trying to figure out whether you can actually do it if it comes down to it, and that's a choice that you individually have to make.
JUROR: Yeah.
MR. CHAKRAVARTY: Is there any reason to believe, I guess, that you can think of that suggests that you can do it at that point?
MS. CONRAD: I'm sorry. I couldn't hear the end of that question.
MR. CHAKRAVARTY: Is there any reason that you can offer us to suggest that you can do it at that point?
MS. CONRAD: Objection.
THE COURT: No. You can answer it if you are able to.
JUROR: Could you restate that, just --
MR. CHAKRAVARTY: Sure. You've -- at the risk -- I'm not trying to put words in your mouth. I'm trying to digest what I think you've been telling us, which is, until you're in that situation -- sorry. When you envision yourself in that situation, you're not sure whether you can do it or not. That's a different analysis than the cerebral analysis of whether it's justified under the law and the facts. And I'm trying to see if there's anything that you can kind of draw on to suggest that at that moment that you actually would say, yes, I can sentence this person to death?
MS. CONRAD: Objection, your Honor. That's --
THE COURT: No. You can answer it if you understand it and are able to.
MS. CONRAD: I'm not sure I understand it, but I think there's a false premise there.
JUROR: Are you -- can I ask a question?
THE COURT: Go ahead.
JUROR: Are you looking for me to think of things that would make me believe that I could do it or make me think of things to make me believe that I couldn't do it or either way?
MR. CHAKRAVARTY: I'm not trying to change your mind. You've expressed some hesitation, reluctance to say that you can do it, and you haven't actually said that yet. I'm trying to see if there's a circumstance in which you could say yes.
MS. CONRAD: Well, objection. That's a stakeout.
THE COURT: Well, I don't know if it is, but -- I think the issue is: There's maybe a difference between considering something sort of in the abstract and considering it in the real world where you actually have to do -- make the decision. I think that's what these questions are getting at. Could you -- let me put it in the negative. Do you have a reason to believe that, if you came to the point where Question 95 is, where you -- the defendant has been found guilty and you have decided that the death penalty is an appropriate punishment for his offense, could you conscientiously vote for the penalty?
Now, it's not a hypothetical or an abstract proposition. It's a real one. And it's perfectly okay to say, I don't know because I haven't been there yet or -- and that might be the case, or it might be that there's something inside of you that says I don't know if I really could do that. We're trying to gauge that difference, if you can follow that.
JUROR: From everything that I've been saying, everything that I've always thought, I guess I will answer, if that -- if the evidence is there and that's what I felt needed to happen, then I would -- yes, I would agree to the death penalty just from what I've always been telling myself even though --
THE COURT: Okay.
JUROR: -- it would be very hard.
MR. CHAKRAVARTY: You said based on what you have always been telling yourself.
JUROR: Like, how I answered this and how I see myself in what I've always -- how I've always said my opinion of it was. I've never once been, I guess, against it or outright against it, so I feel I could -- because I'm not in that situation, it's hypothetical, I don't think it would be fair to say that I'm opposed to it when I haven't said that I ever have. I don't know. It's really hard to answer that.
MR. CHAKRAVARTY: I think -- okay. I think that's all.
MS. CONRAD: One moment, please.
(Discussion held off the record.)
MS. CONRAD: Thank you very much. I don't have any questions.
THE COURT: All right. All done. Thank you.
COURT CLERK: Juror No. 333.
COURT CLERK: Juror 333.
COURT CLERK: Ma'am, over here, please. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thanks for your patience.
JUROR: No worries.
THE COURT: Have you been able to follow my instructions given last time to avoid talking about the substance of the case with anyone?
JUROR: Yes.
THE COURT: And also, as much as possible, to avoid news coverage.
JUROR: Yes.
THE COURT: I know there's been a lot of it. You've been able to turn away if you've seen it?
JUROR: Yes.
THE COURT: So that's the questionnaire you filled out. I have it there for your convenience. If it's easy to take the clip off --
JUROR: Thank you.
THE COURT: -- you can do that. We're going to follow up on some of the questioning.
You're a senior risk manager for a bank?
JUROR: Correct.
THE COURT: Can you tell us what that work involves?
JUROR: Right now, just mainly working with federal regulatory agencies: The OCC, FRB, FDIC, and managing examinations for Citizens Bank.
THE COURT: Okay. Your office is in Downtown Boston?
JUROR: No. It's actually in Providence.
THE COURT: Oh, in Providence, okay.
In terms of social media, we asked you, and you say you use Facebook but rarely.
JUROR: The only reason why I got it was for when my daughter was in college years ago. But, no, I'm not on it. I don't utilize it.
THE COURT: Okay. Looking at Page 12, you had -- your father worked for the Rhode Island Department of Corrections for a while?
JUROR: Correct.
THE COURT: What did he do?
JUROR: He was a guard.
THE COURT: How long did he do that, do you know?
JUROR: I don't remember. I know he had an injury and was on disability from a -- when I was quite young.
THE COURT: Okay. So really he was not doing that while you were growing up basically?
JUROR: Correct. He was always home.
THE COURT: You've had jury service in Rhode Island.
JUROR: Correct.
THE COURT: So I gather you've moved from Rhode Island to Massachusetts --
JUROR: I have.
THE COURT: -- at some point?
JUROR: Yes.
THE COURT: When was that?
JUROR: It's been three years.
THE COURT: Okay. And the trial you refer to in Question 47, on Page 15, and you think it was in the federal court in Providence?
JUROR: It was, yes.
THE COURT: When was that?
JUROR: I want to --
THE COURT: Approximately.
JUROR: About five, six years ago, give or take.
THE COURT: And it was a mixed verdict in the end, some guilty, some not guilty?
JUROR: Correct.
THE COURT: What were the charges generally, do you remember? What kind of a case was it?
JUROR: It was a federal case where the -- it was against, I want to say, National Grid or thereabouts, where improper storage of uncap mercury in their facility in -- I think it was Pawtucket.
THE COURT: Okay. So let me ask you to look at Page 20, Question 77. In that question we asked whether, based on things you'd seen in the media, you had -- or from other sources, you had formed an opinion that the defendant was guilty or not and that he should receive the death penalty or not. And you answered that you had formed an opinion that he was guilty, and you had formed an opinion that he should receive the death penalty.
JUROR: Correct.
THE COURT: Let me take those separately. With respect to Part (a) -- well, actually, let me -- since they're both the same direction, let's do it together.
Down below you answered -- we asked further, that if you answered yes, as you did, to any of the questions, would you be able or unable to set aside the opinion you had formed and base your decision about guilt and punishment solely on the evidence that would be presented to you in the court? And between the choice of able and unable, you "chose able." Can you tell us why you thought you would be able to do that?
JUROR: Maybe more so on the fact that maybe that was the right thing to do, but I'm kind of torn.
THE COURT: When you say "the right thing to do," I think you may be referring to the process of a trial.
JUROR: The process, correct.
THE COURT: You understand that under our system of justice that if person is accused of a crime, he's presumed to be innocent of the crime.
JUROR: Correct.
THE COURT: You can describe it as the default position. If nothing else happens, he's innocent. The government has to, during the trial, produce evidence sufficient to convince the jury that he's guilty beyond a reasonable doubt. Of course -- and the burden of proof obviously always remains with the government. The defendant doesn't have to prove he's not guilty. The government has to prove that he's guilty. So we ask jurors to put their minds in that condition in order to hear and consider a criminal case.
And I guess the question here to you is: You've said you have some opinions already. Would you be able to put those to the side, focus on the evidence in each phase of the case, if there are two, and make your decisions of guilt or innocence, appropriate punishment, based only on the trial evidence and not on ideas you've had from other sources? It's a self-assessment question. Do you think you would be able to do that?
JUROR: I'm hesitating only because, to be truthful, I feel pretty strongly that he's guilty.
THE COURT: So you think that that would interfere with your ability to fairly judge the trial evidence?
JUROR: I would find it hard to believe at this point to find anything that would change my mind about that.
THE COURT: Okay. Let me ask you a series of questions -- we did ask you a series of questions -- I want to follow up on them -- concerning your attitudes towards the death penalty. That begins at Page 23 and it's Question 88.
MR. MELLIN: We're fine, your Honor.
THE COURT: I think we'll go through these anyway. We asked for a general view, and you said you do believe in the death penalty.
JUROR: Absolutely, yes.
THE COURT: And then you indicated the strength of that a little bit on the next scale. It's toward the top, not at the top but fairly strong.
JUROR: Yup, uh-huh, yes, correct.
THE COURT: Question 90, we asked if you could select the view that came closest to your view, and you selected (e), that you're in favor of the death penalty, as you just said, but you could vote for a sentence of life imprisonment without the possibility of release if you believed that sentence was called for by the facts and the law of the case, is that accurate?
JUROR: Correct. Yes, that is accurate.
THE COURT: Then on the next page, at the bottom, Question 95, we asked, If you found this defendant guilty and you decided the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty?
JUROR: Yes.
THE COURT: You said "yes." And then on the next page, at the top -- turn the page. 26, at the top.
JUROR: 26, yes.
THE COURT: 96, we asked a similar question about the other available punishment. If you found the defendant guilty and you decided that life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for life imprisonment without the possibility of release.
JUROR: Potentially, yeah.
THE COURT: Okay.
MR. CHAKRAVARTY: Your Honor, can I just ask a follow-up?
THE COURT: Go ahead.
MR. CHAKRAVARTY: Going back to Question 77, your -- about your strong feelings of guilt, I want to ask a slightly different question. It's not whether you think the defendant is guilty or not but whether you can only -- you can set aside those feelings and consider the evidence that you hear in the courtroom in order to make that decision, or will what you think right now, based on what you've seen in the media, is that going to invariably play some influence on your decision-making?
JUROR: Hard to say based on, you know, again, from what I know and what I've seen. It would be hard for me to imagine what evidence that could be provided that would indicate anything else.
MR. CHAKRAVARTY: So, you know, under our system, the defendant is presumed --
JUROR: I know.
MR. CHAKRAVARTY: -- innocent until proven guilty. And so it's not a matter of the defendant having to present any evidence. It's a matter whether the government has met the burden of proof, which would be beyond a reasonable doubt. So given that until you actually see the evidence in court, you actually don't have any information that's lawfully --
JUROR: I only -- that's correct.
MR. CHAKRAVARTY: So could you suspend your whatever you saw in the media or anything else in order to just assess the evidence to see if the government has proved it beyond a reasonable doubt?
JUROR: Yes.
MR. CHAKRAVARTY: And so that doesn't mean the defendant would have to present any evidence, but the key that I'm trying to get at is -- I think it's a different question as to whether you think he's guilty because of what you've seen in the media versus what you've seen in the courtroom. Could you consider only what you see in the courtroom?
JUROR: I'm hesitating again only because, based on what is in the media, I don't know if that will be shown in the courtroom or not. So it's hard to go back on what you've seen versus what's being presented.
MR. CHAKRAVARTY: Okay. All right. Thank you.
MS. CONRAD: Good afternoon, ma'am. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers. Thank you, first of all, for being here, and thank you for your candor.
I think what we're really asking is for you to just tell us as honestly as you possibly can what you think is possible, not -- and what you would do in this situation understanding that you -- we can't -- no one can go beyond what's humanly possible. And you've said a couple of times -- are we all set?
MS. CLARKE: I think the parties have agreed.
MR. MELLIN: Yes, your Honor.
THE COURT: You don't want to finish the question?
MS. CONRAD: I don't need to. I can but --
THE COURT: Okay. Thank you.
MS. CONRAD: Thank you.
COURT CLERK: Juror No. 337.
COURT CLERK: Juror 337.
COURT CLERK: Ma'am, over here, please, if you would.
THE COURT: Good afternoon.
JUROR: Hi. How are you?
THE COURT: Have you been able to follow my instructions about not discussing the case in substance with anyone?
JUROR: Absolutely.
THE COURT: Avoiding, as much as you can, media coverage although there's a lot of it?
JUROR: Yes.
THE COURT: I actually want to go to a question later in the form here. You tell us -- that's the questionnaire if you want to follow.
JUROR: Okay.
THE COURT: You can take that apart.
JUROR: Thank you.
THE COURT: First I want to begin on Page 19, at Question 75. This was after you got called to jury service. We asked what did people say to you, you say to others. And you wrote that -- I guess somebody said to you that you would be disqualified due to your late father's long service as --
JUROR: Treasurer.
THE COURT: -- treasurer of the BAA, Boston Athletic Association.
JUROR: Correct.
THE COURT: And our family's closeness to the Marathon. Then if you'd go to Page 26, Question 97, we asked sort of a catchall question. Anything else --
JUROR: Yup.
THE COURT: -- that we should know. You said your late father served on the BAA Board of Governors over 25 years, 25, plus or minus, and have been involved and connected to the Marathon and its organization for many years. Part of your family traditions. Your brothers continue as BAA members. All that is accurate?
JUROR: Correct.
THE COURT: So I guess the question is: Is this a case that you could sit as a fair and impartial juror on? Do you think you could be fair and impartial? Given your family's traditions and association with the Marathon because the Marathon is involved --
JUROR: Correct.
THE COURT: Would that emotionally or otherwise affect you in a way that might skew your ability to be a fair and impartial juror?
JUROR: I feel like it could because of my bias -- potential bias towards the Marathon and that event itself. Knowing so much about the Marathon and the event and the activities that are involved and having been involved in it so long.
THE COURT: All right. Let's leave that for a minute. I'm jumping around a little bit here. But now let's go to Page 20, Question 77. There we asked whether you'd form an opinion from the media or otherwise that the defendant was guilty or not, and you said you had formed an opinion that he was guilty. And then we asked had you formed an opinion that he should receive the death penalty or that he should not receive the death penalty. And you said -- I take the way you've checked the boxes to indicate that you have formed an opinion that he should not receive the death penalty. That's Part (d) in the question.
JUROR: Have I formed an opinion that he -- that's kind of a backwards --
THE COURT: It is an awkward question.
JUROR: Right? It's awkward. Have I formed an opinion should not receive, and I said yes.
THE COURT: You have an opinion that he should not receive the death penalty?
JUROR: Which now that I'm rereading the question, that doesn't -- that's backwards, right?
THE COURT: Well, if you look, (c) -- it asks both sides of the possible opinion. (c) says, Have you formed an opinion that he should receive the death penalty?
JUROR: Right.
THE COURT: (d) says, Have you formed an opinion that he should not receive the death penalty? They could be different opinions. We're trying to explore the range of opinions, I guess, and didn't do it all that artfully.
JUROR: I think I remember thinking that. Was that a trick question?
THE COURT: Let's talk about -- let's separate the two questions of guilt from the question of punishment.
JUROR: Okay.
THE COURT: In Part (a), you said -- this might be clearer -- have you formed an opinion that he is guilty, and you said "yes."
JUROR: That's clear.
THE COURT: Is that accurate?
JUROR: That seems clear and I agree.
THE COURT: Now, we also asked down below, if you had said yes to any of the questions, would you be able or unable to set aside the opinion that you had formed and base your decision about, in this case guilt, solely on the evidence that would be presented to you in court? And you indicated you thought you would be unable to do that. Is that accurate?
JUROR: Correct, because I can't unforget what I know.
THE COURT: So what we ask trial jurors to do is to make their decision based on the trial evidence. You understand that, in a criminal prosecution, the -- anybody accused of a crime is presumed innocent unless and until the government proves that he's guilty by the evidence at trial.
JUROR: True.
THE COURT: And proves it beyond a reasonable doubt. So when we ask jurors to decide the issues in a criminal case, we ask them to listen to the evidence and, in the end, after being instructed in the law, to consider whether, as to any particular charge, the government has proved as a factual matter that the person is guilty of what he is charged with, okay? The burden is always on the government to prove guilt. A defendant doesn't have any obligation to prove he's not guilty. In other words, the question is never which side has convinced me. It's has the government convinced me that this person is guilty of what he's charged with? Do you understand that?
JUROR: Yup, I'm with you.
THE COURT: It's not surprising that people have impressions or understandings about cases that have received a lot of publicity. There's information out there. The question is: Can a prospective juror enter upon that duty with the -- and commitment to making a decision only on the basis of what is presented in the course of the trial and not on extraneous information? And that's what we mean to ask here. I'm not sure how clear it was, whether you thought -- if you were a juror, would you be able or unable to do that?
JUROR: And I think not, that I would not be able to set aside what's already in my head, so to speak, or in my mind. When I answered the question, I thought that, and I still feel that way. I think it would be difficult for anyone actually.
THE COURT: Okay. Let me just go back over some of the other questions. Page 6, No. 13, you indicated your husband is retired.
JUROR: Yes.
THE COURT: Would you tell us what he retired from?
JUROR: He was a contractor. He did painting and remodeling.
THE COURT: Self-employed?
JUROR: He had a -- his own business, small business.
THE COURT: Now, let's -- let me go to Page -- I guess it's 20 again, at the bottom. You said your brother was at the finish line right before the bombs went off.
JUROR: He was, one of my brothers. I have two.
THE COURT: I guess he was in a -- it says he was in a bar when it occurred. So he was there just as a spectator? He wasn't --
JUROR: Running?
THE COURT: He wasn't running, but he also wasn't part of the staff that was working the Marathon?
JUROR: No, he wasn't a volunteer this year, no. He was just a spectator.
THE COURT: Has he been in the past, a volunteer?
JUROR: Yes.
THE COURT: Have you?
JUROR: I have not, no.
THE COURT: The next page, Question 82, it doesn't say -- it says, If you or anybody else, it says, donated. Your answer was "donated to One Fund and other fund-raisers for victims (Martin Richard)." Was that you personally or other members of the family or both?
JUROR: That was me. Both of those were me personally.
THE COURT: Beginning on Page 23, we ask a series of questions about the death penalty. Question 88 is a general question about views in general. If you have any views on the death penalty, what are they? And you wrote, "People should pay for their crimes on this earth where they committed them. Allowing them to die is letting them off without punishment." I'm not sure I quite follow that. Could you tell us what you were thinking?
JUROR: So I personally believe that there's a life after this life, and so that life may be a more forgiving place than here. And so I feel like, when people commit crimes, they should pay for those crimes here. Did I answer your question?
THE COURT: Okay. Let me move to the next question. We asked you to rate yourself on a scale from strongly opposed to strongly in favor of the death penalty, and you picked 2, which is on the strongly opposed side. Is that another way of saying what you were trying to say in 88?
JUROR: Yes, because I would be opposed to that because that would mean that people would then potentially not serve their punishment here on this earth.
THE COURT: The next question on the next page, we asked you to pick which of a number of statements might match your own views. And you picked (b), "I'm opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it."
JUROR: Correct.
THE COURT: Does that accurately represents your view?
JUROR: Yes. I do agree with that still.
THE COURT: And then on the next page, again, Question 95, at the bottom we asked, If you found this defendant guilty and you decided that the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty? And you said "no."
JUROR: Correct.
THE COURT: Is that --
JUROR: I still agree with that, yes.
THE COURT: Okay.
MR. MELLIN: Just a few questions, your Honor.
THE COURT: Go ahead.
MR. MELLIN: Good afternoon, ma'am. I'm Steve Mellin. I'm one of the prosecutors on the case.
JUROR: How are you?
MR. MELLIN: Just to follow up on the last couple of questions the judge was asking you about on the death penalty. Are you indicating that you would not ever be able to impose the death penalty given your own beliefs?
JUROR: I believe that, yes.
MR. MELLIN: Okay. Thank you.
MS. CLARKE: Hi. One more shot at you.
JUROR: That's okay.
MS. CLARKE: My name is Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev.
I guess we'll just go straight to the capital punishment question. I can certainly appreciate your view on that. And I think the bottom line is that you heard the judge instruct on the 5th of January and then again today that the jury is expected to weigh aggravation and mitigation, talk about it, deliberate about it, and then make a decision; that no juror is ever required to vote for the death penalty, but what is required is to honestly be able to say that you can talk about it with your fellow jurors and reach a considered decision. So with that as a preface, the question is not whether or not right now that you could impose the death penalty, but could you meaningfully consider aggravation and mitigation in discussions with your fellow jurors?
JUROR: I think, yes. I mean, you're basically saying would I listen to opposing opinions to mine with an open mind?
MS. CLARKE: Yes. I guess that's the question.
JUROR: I wouldn't say no, that I couldn't listen to those.
MS. CLARKE: And that's important. I think we probably all agree that it's important to have in a jury room, that sort of openness to opposing viewpoints.
Then the question is whether or not in your conscience you decided that the death penalty was the appropriate sentence, given the aggravation in the case, if you decided that in your own mind and your own heart that that was the right penalty to impose, the question is: Could you then vote to impose it?
MR. CHAKRAVARTY: Objection to the question without -- I think Miss Clarke just said with "aggravation." It should be aggravation and mitigation in the case.
MS. CLARKE: Well --
THE COURT: That is -- that's a fair objection. Start again.
MS. CLARKE: All over? I mean, the question -- after you've debated --
JUROR: Right.
MS. CLARKE: -- discussed, listened to opposing viewpoints, you make a decision in your own conscience, in your own heart, that the aggravation justifies a sentence of death -- that's the decision you've made in your own mind -- could you then vote to impose it?
JUROR: I don't think so because it would go against kind of my core values.
MS. CLARKE: Okay. Thank you.
THE COURT: Thank you very much.
JUROR: Thank you.
THE COURT: Just leave that there. We'll put it back together.
So about quarter to 4 we'll reassemble in sidebar mode.
MS. CLARKE: Sure. Thank you, Judge.
(Recess taken at 3:24 p.m.)
(The Court enters the courtroom at 3:47 p.m.)