4.Hearing on Juror Challenges and Hardship Excusals

MR. MELLIN: Your Honor, we completely disagree. As concerning his wife's situation, he said he has plenty of local support in the area to handle that situation. He was the man who said that he could rely on his older children to help out as well if there was an issue with his wife.

Regarding the hardship, this juror is no different than Juror 283 who we saw the day before who was the MIT researcher who said that she hadn't even thought about whether or not there was a hardship issue but that we allowed her to stay on as well. So I think he's in exactly the same situation where if there is a hardship, he will let the Court know, and at that point, then the Court can remove him.

MR. CHAKRAVARTY: Your Honor, the government opposes the motion. The fact that she has a brother -- she has a brother who's a Boston police officer who she doesn't know his assignment -- I think she said he works in firearms now -- did not know what he was doing during the marathon, but because everybody was involved somehow in response to the marathon that he must have done something, in light of the candor, the lack of hesitation with which she was answering the questions about whether these things actually affect her, I think has to be placed in context.

She was open about the fact that she has people in her family who are affiliated in some way with law enforcement, but she did not blink -- and it wasn't like a preprogrammed calculated manner of trying to navigate the questions of the lawyers in order to get on the jury; it was she was what she is, which is somebody who immediately reacts, responds and pushes back if she doesn't understand the question, as she did to me when I asked an extended question that was compound. When she didn't understand, she didn't agree. She would push back.

Given that, when she says that she would not be affected by these relationships in terms of her assessment, then Ms. Conrad is asking us to disregard that, and rather supplant the litany of hypotheticals which she poses in terms of suggesting there's no possible way that this woman could be actually telling the truth.

With regard to apparently the Facebook stuff, which I haven't seen yet, but, first, if -- you know, the defense was certainly able to ask the witness about these things when she was here if, of course, they were at all relevant. But what a husband posts on his Facebook page somehow attributed suggesting by inference this witness -- this juror must be -- lack of candor on the questionnaire or somehow categorically excludable I think is not using the social media aspect authority that the Court gave us as the measure of whether a juror is qualified. What a juror's husband posts or family members post ought not to be directly imposed upon a juror, again, not having seen what this information is and --

MR. CHAKRAVARTY: Thank you. Even in seeing it, it doesn't sound like any of that is categorically suggestive of a bias in this case.

And then finally on the point of she has a friend who Ms. Conrad calls somebody she grew up with, somebody she went to high school with who happens to be a Boston police officer, he is on the witness list. He is a potential witness. The government may not call him. Obviously, if the government calls him, then that's a separate issue. But if this juror is seated, then the government is not inclined to call this witness.

That being said, the witness said very clearly she hasn't had contact with that witness for -- I think she said something, comma, years, and that if that witness testified, she would remain fair and impartial and it wouldn't affect her impression at all.

MR. MELLIN: The government challenges that juror as well, your Honor, on two grounds. The first is that that is one of the jurors who said that he could not set aside his opinion that the defendant is guilty. That was Question 77. And more emphatically, he said in answer to Question 74, he said, "I felt nothing could change my mind of his guilt."

Your Honor, regardless of what these jurors' positions are on the death penalty, we all have an obligation to make sure no juror is seated who is not going to follow the Court's instructions, who is not going to presume the defendant guilty, and, in fact, is going to put some burden on the defendant.

So I think -- later this afternoon we started getting into a situation where the defense, regardless of the answers to Question 77, is still wanting to see if there's some way to salvage these jurors. And frankly, your Honor, we have an obligation not to have jurors like that on this jury. We cannot allow a juror to be seated who says they will not follow the Court's instructions and presume the defendant guilty -- excuse me -- and presume the defendant innocent.

Secondly, Juror 323 said that he was deeply opposed to the death penalty. He is the man who changed his ranking from 3, and while in court he changed it to a 1. He said he's morally opposed to the death penalty and he does not believe any human being has the right to decide who lives or dies.

MR. CHAKRAVARTY: The government has a motion, your Honor, and as Mr. Bruck perceived, we can't have jurors in good conscience, regardless of where they fit on the death penalty, who can't presume the defendant innocent. And Mr. -- this Juror 324 can't do that.

In his words, he is pretty biased, and then he said that there's -- from what he has seen, he has made up his mind with regards to the defendant's guilt, and he was 90 percent sure that he would not be able to put that information aside. In other circumstances during voir dire we have seen where it's frequently the defense suggesting that any substantial inability to hold that aside is a basis for exclusion, and, you know, that goes both ways.

The -- his sentiment on that was solid even after pressing, and I think both compared to 323 as well as other jurors that we've seen all along, he was as impaired with regards to just the guilt or innocence presumption as any juror that we've seen.

But we also have a motion based on his substantial impairment on the death penalty, your Honor. He said as a moral matter that he doesn't think it's right, quote, no matter what the circumstances. And while he ultimately agreed that under certain circumstances -- excuse me -- that if he found that the penalty was appropriate and he could agree with it, he never indicated in any way that inspires any confidence that he personally could cast a vote that would ultimately, you know, pass that kind of judgment on somebody.

And when asked how he would make that decision, he patted on his chest, and all of what that means, means he was allowing his heart and his, you know, soul, I think is the characterization that Mr. Mellin gave, in order to make that decision. But it wasn't the circumstance where, you know, "I don't know how I'm going to react until I'm there"; it's rather, "I'm opposed to this. I don't think I can do it. My brain will tell me to do something, but ultimately, I'm going to have to go with my heart as to whether I should do it."

And at the end of the day I think we want jurors making their decisions with every aspect of their faculties, not just their emotional faculties.

MR. CHAKRAVARTY: Let's start with what I think is dispositive, but we'll move on. There are three bases: One is hardship; two is the -- her substantial connections to events or people involved in the case; and then three, her substantial impairment on the death penalty issue.

But the hardship is one in which she made clear that when she doesn't work, she doesn't get paid, and that -- it's a salaried job; she needs that income. Her -- unlike some of the others that we've talked about today, she had actually confirmed that her employer does not have a history of paying for people who -- perhaps not in a long jury service, but for things, I think she said, like sick leave or other kinds of paid leave. So she is not confident at all, and it will be a distraction for her as we proceed.

In terms of some of the connections that she has, let's start first with her relationship to some of the victims. One, one of her very, in her words, close friends was present at the -- at one of the -- near one of the crime scenes near the finish line, and that's somebody that she continues to have contact with. And as expected, and I think the Court was trying to tease out, "Well, how much contact?" and she was very reluctant to suggest that it was, you know, incidental contact at or near the time of the marathon. This is something that extended well over a year, she said it was something that has waned over time, but she continues to talk about the experience somewhat less frequently, but she still continues to talk about it over time.

Her friend -- I believe it was a high school friend -- who was physically injured, she -- obviously it made an impact about this emotional story about his father continuing to run to the hospital. It's that type of detail that suggests that this is something that she has internalized in terms of the events that happened that prevent her from being fair and impartial in this case.

She also -- you know, it's the amalgamation of factors that maybe if any one of them were there, as we've seen in some other jurors, it's not necessarily debilitating, but here she's given to the One Fund, she's -- and she also had separately done -- and perhaps it goes to the substantial impairment on the death penalty, but I think it goes more to the substantial connections here, she had done research on the relative merits -- and perhaps it was in an academic course, but she has done a deeper dive and thought about the issues that come out of this case more than other jurors.

And in the end -- and this brings us to the third point -- she said, "I don't know that I can do it, but if we're there" -- "if we're ready to do it as a group, then perhaps I could." And, you know, the issue is not that -- whether she can divest herself of responsibility by having -- by going along with the rest of the jury, but whether she can actually make the call.

She did not inspire confidence. In her Question 95 she said clearly that "I am not sure." And I'd suggest to you her body manner and her demeanor all were consistent with that. She doesn't want to make that decision and there was nothing she gave, no matter how many times we tried to, you know, tease that out. In one formulation I think I had asked -- I asked it a couple of ways. Once I kind of reversed the paradigm that we've been using in order to see if there was a circumstance in which she could do it, and she couldn't quite answer that.

Eventually the answer that she gave when she said that, yes, she could do it, she said she could do it but for reasons that she couldn't explain except that that's what she has said to herself, that she could do it.

So it was one of these notions of purely being a theoretical exercise of "I know I will be able to build up the courage to be able to make this decision." But there's nothing in evidence, on the record here or that she cited to us or in the questionnaire, that led us to believe that she actually can go ahead and make this decision. And I'd suggest that that is what the government is entitled to.

The government is also entitled -- and this is a brief rejoinder to Mr. Bruck's earlier point, the government wants a fair and impartial jury here that is obviously legal, and that applies both to the liability as well as the death penalty phase. If somebody qualifies as a Witherspoon juror, then so be it, we'll have to decide our peremptory strikes on that. But what we can't have is an infirm juror, people who don't meet the definitions. Obviously it's your Honor's assessment of their credibility and their answers that lets us determine that, but the government's goal here is to do justice; it's not just to beat the defense at picking a better jury.

And I think this juror gives us significant concerns for all three of those reasons that she just would not make a good juror.