4.For-Cause Challenges and Juror Qualification Rulings
54 lines(Discussion at sidebar and out of the hearing of the public:)
THE COURT: Okay. So today's business. Number 340?
MR. CHAKRAVARTY: No motion, your Honor.
MS. CLARKE: No motion.
THE COURT: 342 we excused -- you know, designated for excuse, as 343.
MS. CLARKE: Yes.
THE COURT: Which brings us to 345.
MS. CLARKE: There's a defense motion to strike, your Honor. The Court probably remembers pretty well there's sort of an overall package plus individual reasons to excuse her for cause. This was the woman that said 9/E on the death penalty views and wrote in her questionnaire that she was looking for 100 percent proof, but once she got the 100 percent proof, she was pretty much at automatic death penalty on intentional murder.
She went sort of round with us about, "Well, if you can explain the back story" -- sort of she was seeking for an explanation of the intent, it seemed to me, as she was trying to talk to us. You know, "If I know" -- you know, she talked about driving the car into the child, but if you were doing it because you'd been taken hostage -- you know, she's looking to mitigate the intent; not looking broader at mitigation. And that's essentially a Lockett violation. Tennard v. Dretke, the Supreme Court said, Look, it's unconstitutional to require a link between mitigation and the offense.
It seemed very clear: "I would want to know what caused the intent; I would need to know why he did what he did; I would want to know the intention," which is where she was really fixated. And she did acknowledge a very strong bias in favor of the death penalty. And so we think she should go on her substantially impaired -- on that issue.
She also has connections and had talked about the defendant's family with Dr. Russell. And Dr. Russell is the father of Kathryn Russell who is the widow now of Tamerlan. And so they had actually had conversations about -- it sounds like, about Tamerlan. How that cuts, who knows. But the thing is it's a juror who has talked about and has connections to a relative of the guy on trial which seems too close -- way too close for comfort.
She also went to the funeral for one of the victims. I know she explained it was the Westboro Baptist Church folks, but -- and she said she didn't know anything about Krystle Campbell, but -- and we haven't had a chance to really dig deep enough, but it looks like that she liked Facebook friends who wrote about how close they were to Krystle Campbell, and Krystle Campbell and her family, and talking about what a beautiful woman she was. And it just sounds like there's a little closer connection and knowledge of Krystle Campbell than the juror acknowledged.
So sort of that whole package, we think that she needs to go for cause.
MR. CHAKRAVARTY: The government opposes the motion, your Honor. On the death penalty question, it's clear that she doesn't know what the law is around the death penalty. She hasn't been instructed; she doesn't know the calculus. In her understanding, if somebody has been convicted of intentional murder and the law calls for the death penalty, it was her understanding, as she completed the questionnaire and as she first sat down, that meant that, okay, that means now that my duty is to give the death penalty.
When it was made clear to her that that isn't, in fact, the law, and that at that second stage there would be a weighing of aggravating and mitigating factors, she couldn't be more clear that it doesn't close the question as just whether somebody had committed the crime. She was one of those jurors who made it seem like it was an automatic consequence of being convicted.
She said she wanted to know all the circumstances. It's true she couched it in the terms of intent because that is the only thing that she was aware of. She's not -- she hasn't been instructed on other types of mitigation that may go to something else aside from intent. And although Ms. Clarke was very careful to avoid explaining some of those other factors, the one thing that came out clear when she understood that was, "I would" -- "I would not vote for the death penalty" unless she was sure of all the circumstances, and that it does not close the question "I would want to know the circumstances."
I think from her body language, from her clear and logical evolution over time as we were questioning her on this point, the reason it went as long as it did, I would suggest, is not because she didn't understand what we were asking her; it was because each side was trying to bring out a different aspect of it, including, in some respects, when Ms. Clarke would finish some of her answers to suggest what the next question would be.
When she had a chance to answer for herself, she said, "I would want to see everything." And I'd suggest to you that's not suggestive of mitigation impairment. She just hasn't been presented with either what a mitigation factor is nor the types of information that could validly be considered as mitigation.
With regard to the Warren Russell connection, this, I submit, is a red herring. First, he's not a witness in the case. His credibility -- and the series of questions are all based on his credibility and whether that would influence her assessment of the evidence in the case. And he's not presenting evidence in the case.
She made clear that her relationship with him was peripheral at best. Occasionally he would come and work at the clinic that she worked in, and it was years before the events in question. I'd suggest there's nothing to suggest that she would be somehow disposed to adopt any theory of the case. And if there was any, then it would favor the defense, not to the government. But I submit to you there's no evidence that she would be influenced at all one way or the other.
The final point is on the -- Krystle Campbell's funeral. Her answer as to why she was even there could not be more clear and disconnected from the facts in the case. She is adamantly opposed to the Westboro Baptist Church, which is an activist church with a number of issues which are often very controversial, and she was not allowing that group to destroy the sanctity of, in her words, any funeral. It was wherever she can oppose the evil that they -- of that evil organization, she will try to do it. It's completely unconnected to the case.
This constellation of factors related to this very opinionated and outspoken, I submit, credible juror candidate doesn't make it -- her any closer to this case than any of these other jurors that we've seen.
THE COURT: I was satisfied with her answers on the death penalty questions. I think that she was confused, understandably. She was being asked, probably by everybody, including me, to understand legal concepts she was hearing for the first time. And so her confusion over 100 percent and whether that made it automatic was a product of her being unfamiliar with the concepts. And I'm comfortable with it.
My general impression of her was of a very sort of self-possessed person who knew who she was and knew how she thought about things, definitely more inclined to the death penalty than otherwise. But I think in the end, her answers were satisfactory that she could meaningfully consider life imprisonment as an alternative depending on the facts.
I mean, she dwelled a good bit on the -- her speculation about what might be mitigating factors. They didn't match perhaps exactly what she was being asked about, and it's not clear that Ms. Clarke and she were on the same wavelength as to what was a "why" question or not. I think they had different definitions for that. But I think she could conscientiously do that.
I guess what troubles me is the Russell connection. She does have outside-the-jury knowledge of the family in some respect, and I think that without trying to make too much of it, it's just a point of contact that I think is unnecessary. So I think I would excuse her for that basis.
346, 348 were resolved.
349?
MS. CLARKE: No motion.
MR. CHAKRAVARTY: No motion.
THE COURT: 350?
MR. BRUCK: Oh, I'm sorry. 349 -- oh, excuse me. 350 is a defense motion. This is on two grounds. One is hardship. This was the juror -- the exterminator who called and said, "We'll take it day by day." I think by then he was a little too dug in to back out, but he never explained how he and his family were going to survive for four months without his income.
And before that -- we got to that point, I mean, he sort of said, "Well, we'll manage," but I think applying the general rule that this Court has applied in similarly situated jurors, this is -- it's just not going to work for him, whether he's willing to suck it up for now and take it day by day, as he said, or not. So I think he should be treated consistently with other jurors that the Court has excused who were favored by one side or the other.
In addition, I realize this juror gave qualifying answers about the death penalty, but for a long time he suggested that he had no opinion whatsoever about the death penalty in this case. And eventually, with a lot of probing, it turned out that he had a humdinger of an opinion about the death penalty in this case, which is that this is the sort of case for which it should be imposed. It was like cases in Puerto Rico in the '90s, which he said Puerto Rico was turned upside-down by violent crime. I think many of us know what he was referring to. And there were cases there that deserved it, and this was like that. And then he rattled off a series of attributes about this case that made it the sort of case where -- and really the critical language was -- "where you have to send a message."
Now, "sending a message" is a consideration that is divorced from the facts of the case, or certainly divorced from mitigation. Because no matter what the mitigating factors are, if the aggravating factors are as he described them -- the loss of innocent lives, a total disregard for innocent life, and he listed several others that the Court will recall -- and your objective is to send a message, then you go ahead and send it and mitigation really doesn't matter. You're using the defendant as a billboard.
Now, in the end he backed up in a very mechanical fashion and said, "Well, but of course I would have to hear the evidence." But he really tipped his hand. And I think it was especially revealing that until that probe, you wouldn't guess that he had any opinion about the case at all, and then it came gushing out. And it was very strong.
Now, when you take both of these factors together -- he seems like a great guy. I mean, I don't want to speak about him in a way that's disrespectful. He's very impressive in a lot of respects. But that isn't what qualifying someone for jury service is about. And it seems quite clear that between these two factors, this is a juror that the Court ought not find to be qualified.
MR. MELLIN: Your Honor, we disagree. He expressed no hardship. He was asked repeatedly about that. He told Mr. Bruck that the job is not an obstacle. And he said it would be inconvenient but he could get by. And then he made reference to another time in his life when he was out of work and was able to get by. So he didn't express a hardship or say it was a financial hardship that will create a problem for his family.
Regarding the death penalty questions, just on the form itself he said -- his answers to Questions 95 and 96, he said yes to both, that he could conscientiously vote for the death penalty, he could also conscientiously vote for life imprisonment. He said very clearly that the death penalty is not appropriate or not something he would impose in every case, and he said not everyone who is guilty should get the death penalty.
When he was pressed repeatedly for an opinion, he gave an opinion that was completely appropriate for a layperson to give. Counsel's asking a layperson for a lay opinion about the death penalty, and he goes and lists a number of factors, frankly, that are aggravating factors that would come into play in this case. So there was nothing inappropriate about his answers concerning about the death penalty. He followed that up by saying that in this case, though, he has no opinion and will wait to hear the evidence before he forms his opinion.
I believe he's a perfectly acceptable juror.
THE COURT: I agree. I think he's -- you know, on a hardship, we pushed him a little bit and he didn't claim the hardship. In the end the juror has to be the temperature gauge on this. I think it's appropriate to test it and push him a little bit, but he didn't seem fazed. If he wants to, you know, accept that burden, whatever it is, it's hard to tell. He knows the stakes. So, you know, I'll contrast it with somebody later on when we did bring it up, she took the opportunity to express why it was a hardship for her. That's the art teacher, for example. So there's a difference in the way people respond.
So -- and as to the death penalty, I thought he was satisfactory. You know, in this questioning they get pulled over to this side of the ring and then they go back to the other side of the ring. But I think in the end, he appears to me to be a very thoughtful man, may have strong views about various things, but I think one of his views was that he would make the decision he thought he should make after he heard all the evidence, and I think that's satisfactory.
Number 351 was --
MS. CLARKE: That's a --
MR. MELLIN: Government-challenged without opposition.
THE COURT: Yeah, I think that was fairly obvious.
352?
MS. PELLEGRINI: 352, your Honor, is a government motion. Once again, you know, if this process has taught us anything, it's that the last answer to the last question is not what controls. From the very beginning with this juror's questionnaire, starting with Question 88, her inability to consider -- substantially consider the death penalty is quite clear. Her answer to 88 was it's something to be applied in every case, if ever, that has to do with murder.
In 89 she circled 1. And what I find interesting about 89 is in listening to the various questions and answers that have gone on prior to this, you know, when a person is somewhere in the middle, 3, 4 and 5 the Court sometimes explains a little bit where it is on the spectrum. But 1 says right here in the question, "Reflects a belief that the death penalty should never be imposed," and that's what she circled. In 90 she circled A. "I'm opposed to the death penalty and will never vote to impose it in any case no matter what the facts."
Unprompted, her views on the death penalty in circumstances in which she might consider it, she said, "I tried to think of could there ever be a circumstance where I would? I can come up with things but they're very remote" -- "remote" being a term she used several times -- "someone convicted and could escape, considered a danger to their fellow inmates and prison guards."
She continued with that and she said, "I could hardly come up with a circumstance that I could do it, it's so remote. And it's a remote possibility. It's hard for me to consider." When Mr. Bruck asked her whether she could remain open-minded, it's not exactly the same as whether you can substantially consider the aggravating and mitigating factors.
No one likes to think of themselves as being unable to be open-minded, and she did answer yes, but I think that it's clear that she's open-minded within a very limited ability that she has set for herself, and she is, in fact, substantially impaired. And that's our motion.
MR. BRUCK: Well, we certainly don't agree with that. This was -- the Court has qualified jurors at the other end of the spectrum who were unable to think of a single concrete example of when they would not impose the death penalty, as I recall. And that by itself isn't disqualifying provided the juror can say that they would be open-minded and listen to all the evidence and make their decision. This juror is at the skeptical or anti-death penalty end of the spectrum but well within the range that Witherspoon says is protected from disqualification by the Constitution.
She gave two examples of the kinds of facts in which she thought it was warranted. And the critical thing, I think she was asked, "And could there be things you haven't thought of?" and she said "yes." "And would you keep an open mind and see if those or other situations were established in the evidence?" And she said "yes."
She's very firm that if she found the death penalty to be warranted, she would sign. There was not any hesitation. She would vote for it. That's not the issue. The issue is that the -- apparently that the government feels --
She also said she -- she gave this thought -- she thought about it more, as I recall, after she filled out the form, like a lot of jurors have. And they've gone in both directions. But this is a juror who clearly is very thoughtful about it and is open to having the government demonstrate that this is an appropriate case.
She will be guided by the evidence and she will vote either way. And I just don't think there's any merit to the notion that she is substantially impaired. And we think that it would violate Wainwright v. Witt to so rule.
THE COURT: I don't think she should be struck. I think she should be in the pool. She is clearly at one end of the spectrum, but I was influenced in part by her answer that she had a couple of examples and was open to more if you can present any. But I was also just sort of evaluating her by how she presented herself. And she's obviously a very intelligent, very thoughtful person. She seems kind of disciplined. And, of course, that's one of the qualities that this project calls upon, is discipline in jurors.
So I think she can be thoughtful about it. She'd be -- will take some persuasion, obviously, but I think she fits within the range of acceptable jurors.
353, 354 were agreed, I believe.
And now we have 355.
MR. MELLIN: And, your Honor, the government moves to strike this juror for two reasons, for his bias and also for his death penalty answers. He is a person who admitted that he's been a criminal defense attorney since 1992. So for 22 years his concentration of work has been representing criminal defendants. He admitted that he remembered meeting Ms. Conrad and Mr. Watkins. I think just on its face that is a sufficient bias that no one would be able to overcome given 22 years of work.
In addition, I asked him about the Innocence Project. And I have a piece of paper that I think that Mr. Chakravarty has but he has not handed it over.
MR. CHAKRAVARTY: Sorry.
MR. MELLIN: And I asked him about the Innocence Project, and he indicated -- or tried to claim kind of no real connection to it, but even on his LinkedIn page he has a group that is the Innocence Project. And if the Court goes on to the next page, which is just a short synopsis of what the Innocence Project is, it says, "The Innocence Project supports a moratorium on capital punishment while the causes of wrongful convictions are fully identified and remedied. This has been the Innocence Project's position since our inception in 1992, and it is the same position that the American Bar Association adopted more than a decade ago."
THE COURT: So I'm trying to navigate what you've given me. I see. Is that what you're talking about?
MR. MELLIN: On the second page. Yes, your Honor.
THE COURT: And that takes you to the single page?
MR. MELLIN: That takes you to the Innocence Project's page.
MS. CONRAD: Well, I'm sorry --
MS. PELLEGRINI: We're not done yet.
THE COURT: Let him finish. Let him finish.
MR. MELLIN: That's the issue of bias, your Honor. I don't even think the Court, frankly, needs this information. I think that someone who is a criminal defense attorney for over 22 years, they're biased in a case like this.
Then I've gone on to discuss his position on the death penalty where he said that even having a substantial amount of time to think about it -- he is a criminal defense attorney. He knows what the process is. He understood at the time that he fills out this jury questionnaire that he's going to be brought back and asked questions about his questionnaire. And as he sat here today the only time that he said he could think that he could impose the death penalty would be in a case of genocide.
There are cases that say that that -- in and of itself if that is the only position that you're espousing, that that is the only time that you can think of the use of the death penalty, that that is a reason to excuse a juror. I cite specifically to the Antwine v. Delo. That's an Eighth Circuit opinion, 54 F.3d 1357. There the juror talked about Adolf Hitler, that the only time the juror could see imposing the death penalty was Adolf Hitler.
There's another opinion from the Ninth Circuit, United States versus Mitchell, 502 F.3d 931. That is a case where the juror said that the death penalty is only appropriate for murderers like Charles Manson or Ted Bundy. This man is even well beyond Ted Bundy or Charles Manson. He is saying there has to be genocide.
So I think given his answers in court today, that he is substantially impaired.
MS. CLARKE: I know Miss Conrad is going to run over me. I might as well --
MS. CONRAD: Can I just make a couple of points and then let her make a couple of points? I just want to address this professional aspect.
THE COURT: All right. Go ahead.
MS. CONRAD: I don't remember meeting the man. He has a look that's vaguely familiar. I mean, these Massachusetts Association of Criminal Defense Lawyers -- I've been a member over 20 years. They're big, twice-yearly dinners, meetings. Somebody's having a conversation. I walk up; they say, "Do you know so-and-so?" They introduce us. We walk away. That's it. I don't see how that, which occurred sometime in the last 22 years, means that he's biased.
And I just want to say, I am trying desperately, since the government didn't see fit to bring this up about the LinkedIn page before, to bring up his LinkedIn page. I can't. It looks like they didn't go to his actual profile. So I just want to correct what I think is a misimpression that somehow this link on his page, if it is a link to the Innocence Project, takes you to this page on the death penalty. I assume that it does not take you to this page on the death penalty; it takes you to the home page, presumably, for the Innocence Project. And of course the Innocence Project is primarily an organization that tries to make sure that people are not wrongfully convicted.
That's all I have to say, and I'll let Ms. Clarke deal with the death penalty issue which I'm not really that qualified to do.
MS. CLARKE: Well, you know, I think [REDACTED]tried to tell us that he was not comfortable with the death penalty but he could impose it. He was hit with the question of, "Well, tell us a time that you could," and he said, "Well, genocide is a time," but then when he stepped back and talked about whether he could weigh aggravation and mitigation and come to a conclusion with other jurors and make a decision in a given set of facts, he said he could do it.
He's friends with prosecutors. He's friends with law enforcement officers. He's friends with defense lawyers. He's been a defense lawyer. It's a little bit strange to listen to the prosecution talking about admitting to being a criminal defense lawyer. I never sort of had that as something to deal with. But at any rate, I think he's across the board as fair as they can come.
I know that the Court has ruled previously with regard to a criminal defense lawyer, that you were concerned about the life imprisonment with one side or the other, but he essentially sounds aligned with all the sides. He's been working as a criminal defense lawyer. His death penalty views seem to fit right within what we're looking for.
THE COURT: So this really is not -- I don't approach this at all on a categorical way. Everybody is different, and the value of this process is you can sit here five feet away and you can sense the being. And I -- my sense of him is different from my sense of the last juror that we just qualified who I thought is open to the possibility of the death penalty in a way that I do not think that [REDACTED]is.
I agree that his -- the zone of possibility is so narrow, I think you would have to regard it as substantially impaired, this is the genocide issue, in contrast to her -- the other juror's examples were more possible, I guess, in the world that we'll be operating in. So I think he's not qualified under the death penalty question.
I would not exclude him just because of his criminal justice -- criminal defense work. Again, there was a juror where that figured in. It was more in that case, as I recall it, that she -- her career was postconviction -- finding problems with trials. And I was, among other things, concerned she might be spending her time finding trouble in the law along the way. But his career as a criminal defense lawyer wouldn't by itself be a factor. I think it may explain where his alignment is on these issues, but ultimately, it was his answers to the questions and my sense of it.
He was a learned witness, in a sense. He knew what we were talking about whereas others don't necessarily, and I guess that could go in either direction. But in the end, it was not convincing to me that he was going to be truly open in the way that would be necessary.
356?
MR. CHAKRAVARTY: No motion.
MR. BRUCK: No motion.
MS. CLARKE: No motion.
THE COURT: And I think we run the table after this.
MR. BRUCK: Yes.
THE COURT: So the ones that have passed are, to summarize, 340, 349, 350, 352, 356.
Okay? All right.
MR. CHAKRAVARTY: Thank you, your Honor.
MS. CONRAD: Judge, I just want to raise the Juror 318 from yesterday.
THE COURT: Yeah, I know you filed something. I haven't looked at it.
MS. CONRAD: It kind of --
THE COURT: I will look at it.
MS. CONRAD: It leads you through how we get to that being her husband, basically.
THE COURT: All right. I'll take a look at it.
MS. CONRAD: Thanks.
(The Court exits the courtroom and the proceedings adjourned at 5:08 p.m.)