2.Individual Voir Dire — Capital Jury Selection (Part 1)
1,663 linesCOURT CLERK: Juror No. 340. 340.
(Juror 340 enters the courtroom.)
CLERK MAYNARD: Juror No. 340.
COURT CLERK: Have a seat. Speak into the mic and keep your voice up so everybody around this table can hear you. Okay?
JUROR: Okay.
COURT CLERK: This is adjustable.
THE COURT: Make yourself comfortable. Good morning.
JUROR: Good morning.
THE COURT: Since you were here last to fill out the questionnaire, have you been able to follow my instructions to avoid any discussion of this case?
JUROR: Yes, I have.
THE COURT: Also as much as possible to avoid any media stories about the case?
JUROR: Yes.
THE COURT: Thank you. So that's the questionnaire you filled out.
JUROR: Uh-huh.
THE COURT: We'll be addressing some of the matters in it.
JUROR: Okay.
THE COURT: So let me begin with actually Page 10, in Question 26 we ask people about employment and so on.
JUROR: Uh-huh.
THE COURT: I wanted to clarify what your situation is. You have --
JUROR: I take care of my dad during the day and the night. He's about 75 percent disabled. I am also disabled by CP, cerebral palsy, and because of that reason, I haven't had a job since, or like before.
THE COURT: Okay.
JUROR: And I -- part of my college, I was an intern at Cambridge Historical Society.
THE COURT: Okay. Good. Thank you.
Do you use social media.
JUROR: I quit using Facebook first year of college, which was three years ago, and I rarely use Tumblr, which is like blogs.
THE COURT: What kinds of things -- I guess it says literature and animal?
JUROR: Yeah. Like Japanese animation. I mainly V-blog those.
THE COURT: Not animal -- all right.
So let me ask you to turn to Page 20. And Question 77.
JUROR: Yes.
THE COURT: In this question we asked whether things you saw or read in the news, whether you formed an opinion about certain matters. Particularly in A and B we asked whether you formed an opinion that Mr. Tsarnaev is guilty or that you formed an opinion that he was not guilty. And then in C and D we asked you about the possible penalty. But let me focus on A and B first. You checked yes to both.
JUROR: Yeah, I was unsure of that, like the wording of it.
THE COURT: The wording was a little awkward.
So can you tell us what -- have you formed an opinion about his guilt or not?
JUROR: Yes. That he is guilty.
THE COURT: Right. So we then asked below, if you answered yes, the question is would you be able or unable to set aside that opinion and base your decision about guilt or punishment solely on the evidence presented to you in court. And you indicated "able."
JUROR: Yes.
THE COURT: Can you tell us about that.
JUROR: My reason the death penalty are by case by case.
THE COURT: Before we get to the penalty, I'm talking about guilt or innocence.
JUROR: I mean, yeah, if I heard the evidence and based on the evidence, my opinion changed, I would be able to vote not guilty or guilty.
THE COURT: Okay. So you understand in the formal criminal process, a person who is charged with a crime is presumed to be innocent as a matter of law, and is convicted only if the government presents its evidence at the trial that is sufficient to convince the jury that the person is guilty and the jury is convinced beyond a reasonable doubt. So you understand the burden of proof is always with the government to prove somebody guilty by the evidence at trial?
JUROR: Uh-huh. Yes.
THE COURT: You have to answer verbally because the reporter will take it down.
So a defendant doesn't ever have any obligation to prove he's not guilty; it's up to the government to prove affirmatively that he is guilty at trial. Do you understand that?
JUROR: Yes.
THE COURT: Do you think you'd be able to faithfully apply those principles if you were a juror in this case and insist that the government prove to you by the evidence?
JUROR: Yes, I would.
THE COURT: Okay. I want to come back to the penalty questions, as to which you said you were unsure.
JUROR: Yes.
THE COURT: We're going to ask about that in a minute. I just want to see. You were living in Cambridge at the time of the events?
JUROR: Yes. I was living in a dormitory for Lesley University in like Porter Square.
THE COURT: Okay. And so you were in part of the shelter in place?
JUROR: Yes.
THE COURT: And it looks, Question 82, you made a donation to the One Fund?
JUROR: Yes. At the supermarket, yes.
THE COURT: So if you go to Page 23, Question 88, we begin a series of questions that address the death penalty.
JUROR: Okay.
THE COURT: And I want to run through those. Question 88 itself asks if you have any views about the death penalty in general, what are they. And you said your views are determined on a case-by-case basis.
JUROR: Yes.
THE COURT: I guess that means you don't have any general views.
JUROR: No.
THE COURT: You would wait to decide each case.
JUROR: Yes.
THE COURT: In Question 89 we asked you to put yourself on a scale of 1 to 10, one being strongly opposed and 10 thinking the death penalty should be imposed whenever a defendant is convicted of intentional murder, you selected 8. You're fairly strongly in favor.
JUROR: Yes. If the case is made that I find some standing ground, and judged on the crime, I would be able -- I would understand the death penalty might be -- might be -- might be awarded. Blah.
THE COURT: I get the idea. Let me ask you to turn to Page 24, the next question, 90. Rather than numerical scale, we ask you to select one of the statements if you thought it reflected your views, and you picked D, which says, I'm not for or against the death penalty, I could vote to impose it or I could vote to impose a sentence of life imprisonment without the possibility of release, whichever I believed was called for by the facts and the law in the case.
JUROR: Yes.
THE COURT: Is that a fair summary?
JUROR: That is automatic -- this is what my view is all the time.
THE COURT: Okay. That's what you were telling us.
JUROR: Yes.
THE COURT: Now if you go to Question 95 at the bottom of Page 25. Now we're putting it in the context of this case. If you found this defendant guilty and you found -- you decided the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty?
JUROR: Yes. My answer remains the same.
THE COURT: And the companion question to that is on 96 at the top, the very top, it just asks the other side of the question. If you found him guilty and you decided that life imprisonment without the possibility of release was the appropriate punishment for him, could you conscientiously vote for life imprisonment without the possibility of release? And you said yes.
JUROR: Yes.
THE COURT: And that remains your view?
JUROR: Yup. Yes.
THE COURT: Follow-up.
MR. CHAKRAVARTY: Just very briefly.
Good morning. My name is Aloke Chakravarty. I'm one of the prosecutors in the case. Just a few follow-up questions. First, to get a better sense of how the trial will bear on your personal life, in terms of your commitments to your caretaking functions as well as -- I think you indicated you're taking some classes.
JUROR: Yes. I'm currently taking a semester off to deal with some emotional issues, but the role of caretaker for my father is if, you know, once I wake up, I just get him his newspaper and his breakfast and then I'm out the door and he can take care of himself until I get home.
MR. CHAKRAVARTY: Either whatever you're going through, as well as with the family situation, would this --
JUROR: No.
MR. CHAKRAVARTY: -- impair that?
JUROR: No. My emotional problems don't factor into this.
MR. CHAKRAVARTY: There will be some graphic testimony and evidence in the case. Is that going to interfere?
JUROR: No, no.
MR. CHAKRAVARTY: The judge asked you some questions about the death penalty, and there is a difference between deciding that the death penalty is appropriate, as you've said that you've been able to do, and then actually casting a vote saying, I think that this person should receive the death penalty.
JUROR: Uh-huh. When I got the call saying that I was due to come in today, I thought about that for much of the night, and I remain unsure about how I would feel afterwards if that was the appropriate verdict, but I feel like I could be able to cope with it if that was the appropriate pathway to go.
MR. CHAKRAVARTY: Could you make the decision?
JUROR: Yes.
MR. CHAKRAVARTY: Is there some -- do you have confidence that you have the ability to do that?
JUROR: Yes.
MR. CHAKRAVARTY: Thank you.
THE COURT: Okay.
MR. BRUCK: Good morning.
THE COURT: I remind you the mics are really for the other rooms, not for here.
MR. BRUCK: Okay. I've got two of them. That should do the trick.
THE COURT: You'll be in stereo.
MR. BRUCK: My name is David Bruck. I'm one of Jahar Tsarnaev's lawyers. I've listened carefully to your answers and I don't have a lot more, but I have a couple of things. Okay?
JUROR: Okay.
MR. BRUCK: You told the judge a little bit and you wrote a little bit on your questionnaire about the death penalty. Everybody has different views, or many people have different views. Can you tell me a little more generally -- some people are against it, other people are strongly in favor of it, some people think there ought not to be one, other people think there should. Can you fill out a little more what your thinking is about it?
JUROR: I think it's an important factor to have based on the crimes that history has shown us, but I am strongly -- I'm strongly behind the answer that I circled, which is I'm neither for it nor against it, but I can, I can put my basis behind one of the answers.
MR. BRUCK: Okay. Now, do you understand, and a lot of people when they come to court have no reason to know this, you've had some instruction from the judge, but not all the details, do you understand that the death penalty never automatically follows from a crime? If a person is found guilty of a capital crime, that only means the jury has a choice to make.
JUROR: Uh-huh.
MR. BRUCK: And the jury can always decide, even if the person is guilty, that life imprisonment without release is the appropriate sentence.
JUROR: Yes. I watched a lot of crime shows back when I was growing up.
MR. BRUCK: A lot of what?
JUROR: Crime shows, yeah. So yes.
MR. BRUCK: So you understand it's always up to the jury. And in the end, as Judge O'Toole told you, it's always up to each individual juror.
JUROR: Yes.
MR. BRUCK: Not to a majority vote or anything like that.
JUROR: Yes.
MR. BRUCK: And in deciding whether or not to impose the death penalty, each juror can consider and should consider not only the crime and how bad the crime was, but also the person that committed it. Does that seem -- does that make sense to you?
JUROR: Yes.
MR. BRUCK: Including the age of the person, if it's a young person or an older person.
JUROR: Yes.
MR. BRUCK: What family situation, whether he was a leader or a follower, all those sorts.
MR. CHAKRAVARTY: Objection, your Honor, to the list.
THE COURT: Yeah, I think it's getting a little argumentative.
MR. BRUCK: Okay. So when you said that it would be case by case based on the crime, that was just sort of a shorthand way of putting it?
JUROR: Based on the crime and the evidence presented, yes.
MR. BRUCK: By evidence, you mean everything in the case? All the evidence as presented.
JUROR: Yes.
MR. BRUCK: About the person as well as the about the crime?
JUROR: Yes, I would say yes to that.
MR. BRUCK: Okay. Can you bear with me a second.
That's all I have. Thank you so much.
THE COURT: Let me remind you that depictions on crime shows aren't necessarily realistic. Thank you.
MR. BRUCK: I should have pointed that out.
(The juror was excused.)
COURT CLERK: Juror No. 342.
(Juror 342 enters the courtroom.)
COURT CLERK: Do me a favor, speak into the mic so everybody around this table can hear you.
THE COURT: Good morning.
Since you were here to fill out the questionnaire, have you been able to follow the instructions to avoid discussion of the case with anyone.
JUROR: Yup.
THE COURT: Also as much as possible to avoid any exposure to media stories about it?
JUROR: Yes. Yes.
THE COURT: We're recording this by the stenographer so you have to answer verbally too.
JUROR: Sure.
THE COURT: Okay. So you were born in Leningrad, Russia.
JUROR: Yes.
THE COURT: You lived there for about roughly 40 years or so?
JUROR: Yeah. I move 1992.
THE COURT: Currently -- you can follow along in the questionnaire as we go ahead. I'm going to be flipping through it. You're employed at Tufts Medical Center as an electron microscopist?
JUROR: Yeah.
THE COURT: You've been doing that for quite a while?
JUROR: All my life.
THE COURT: I think you told us elsewhere in the form your husband is a physicist?
JUROR: Yes.
THE COURT: Where does he work?
JUROR: MIT.
THE COURT: How long has he been at MIT?
JUROR: From 1992.
THE COURT: Is he a professor teaching there or researcher?
JUROR: Researcher.
THE COURT: Research?
JUROR: Yeah.
THE COURT: You know that one of the charges in the case involves the murder of an MIT police officer.
JUROR: Yeah.
THE COURT: Have you and your husband talked about that?
JUROR: No.
THE COURT: Do you know if he has any strong views about that matter?
JUROR: He been in MIT since day.
THE COURT: I'm sorry?
JUROR: He been in MIT this day, when this happened.
THE COURT: He was there?
JUROR: Yes, he was locked in his lab.
THE COURT: I'm sorry?
JUROR: He was locked in his lab because he was waiting for me. I was I was in my work on this day.
THE COURT: He was affected in that he had to stay in while the events unfolded?
JUROR: Yes.
THE COURT: What I'm saying is because it was an MIT officer who was killed, whether that had any special emotional or other effect on him that he's communicated to you.
JUROR: This day, he was emotional involved, yeah. This day, yes.
THE COURT: That day?
JUROR: Yeah.
THE COURT: You use Facebook a bit?
JUROR: Yeah.
THE COURT: Can you tell us how you use it?
JUROR: I can talk with my son, my nephew, my daughter-in-law. That's mostly -- that's my -- contact with young generation.
THE COURT: Are they all here in the US?
JUROR: Yes.
THE COURT: Do you use Facebook or anything else to be in touch with people in Russia?
JUROR: I have some friends in Russia.
THE COURT: Do you use Facebook or some other social media to talk with them?
JUROR: Yes.
THE COURT: What's the Russian equivalent of Facebook?
MR. CHAKRAVARTY: VKontakte.
THE COURT: VKontakte.
JUROR: I have no clue what it is. Sorry.
THE COURT: So let me ask you to turn to Page 20.
JUROR: Yes.
THE COURT: In Question 77, we asked whether based on things you'd seen and read, media or otherwise, you had formed an opinion.
JUROR: Yes.
THE COURT: That the defendant was guilty or not, and if so, whether he should receive the death penalty or not. And you said yes, you had an opinion that he was guilty and you had an opinion that he should not receive the death penalty.
JUROR: Yes.
THE COURT: We then asked, if you answered yes to any of those questions, would you be able or unable to set aside that opinion and base your decision about either guilt or punishment based solely on the evidence presented in court. And you selected the box that you said you would be able to do that.
JUROR: What the question?
THE COURT: It's the second part of Question 77, where it begins "if you answered yes," before Question 78.
JUROR: 77. Maybe I'm confused. My point is I'm against death penalty in cases like this.
THE COURT: Okay. We'll come to that in a minute.
JUROR: Yeah.
THE COURT: I want to first ask whether, it's understandable if people have impressions or understandings that they have formed based on media coverage and so on, that they would have an opinion about whether a defendant's guilty or not.
JUROR: Yes.
THE COURT: The question is whether a juror in this case who might have such an opinion could nevertheless focus only on the evidence presented during the trial and make a decision based only on that evidence without being influenced by a prior opinion. And I want to ask whether you think you would be able to do that?
JUROR: It's nothing to do with case. My opinion about death penalty is nothing to do with case.
THE COURT: I'm not talking about the death penalty right now; I'm talking about whether you think he's guilty of any of the crimes or not. If you look at Question 77, Part A.
JUROR: Yes.
THE COURT: We asked if you had an opinion that he was guilty, and you checked the box yes.
JUROR: Yes.
THE COURT: So what I'm asking is, while it's understandable you might have such an opinion, the question is whether, if you were a juror, could you put that opinion to the side, focus on the trial evidence, and make a judgment about whether he's guilty or not based on the trial evidence.
JUROR: It would be real difficult for me. Yeah, being in this city around the people, around me, all this, you know, presentation, being inside city in hospital, I was in hospital, working in hospital, we get patient in this day, it will be difficult for me to forget this day and all this -- yeah.
THE COURT: You were working at the hospital the day of the event?
JUROR: Yeah.
THE COURT: And people were brought there.
JUROR: Yeah.
THE COURT: Thank you very much.
(The juror was excused.)
COURT CLERK: Juror No. 343.
(Juror 343 enters the courtroom.)
COURT CLERK: Sir, over here, please. Have a seat, if you would. Do me a favor, keep your voice up, speak into the mic so everyone around the table can hear you. Okay. Thanks.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to follow my instructions to avoid discussing the case with anybody?
JUROR: Yes.
THE COURT: And as much as possible to avoid any media exposure?
JUROR: Yes.
THE COURT: That's the questionnaire you filled out. We're going to follow up on some of the things you told us in it, and you can follow along if you want.
Tell us what you do. You work for Brown Brothers.
JUROR: It's a financial custodian, safekeeping bank right in Boston.
THE COURT: What do you could?
JUROR: I'm a client service manager.
THE COURT: What does that mean?
JUROR: So what I do is I have clients all in Boston and they come to me with issues of their investments, and I work internally within my department to ensure that their investments are accurately funded in the right manner. So it's not all US, it's foreign relationships as well.
THE COURT: Are you doing the investing?
JUROR: No.
THE COURT: You're not an investment advisor?
JUROR: No.
THE COURT: So I'm not clear.
JUROR: It's a very hard concept. So I have a group of reports or employees that report up to me, and my clients email or call my team, okay, and if there's an issue, say they invested, you know, in federal bonds or something like that, and they didn't basically settle in the sense of money being moved, okay, we would work with that depository to make sure that that money got to where it was.
THE COURT: So are you facilitating transactions?
JUROR: We don't facilitate. We have a transaction database that does that. We just make sure that database is working accordingly. So we receive like an automated trade instructions or fax in trading instructions and we made sure those instructions are --
THE COURT: You're just keeping an eye on things, basically?
JUROR: Monitor, right.
THE COURT: And that's what the custodian does, take custody.
JUROR: Take custody. Exactly. I have that problem trying to explain that to everybody.
THE COURT: Okay. Let me ask you to go back to Page 5 of Question 10. You were concerned about whether this, if you were called to serve on the jury, whether you would suffer financial hardship. Have you been able to get any information about that since you filled out the questionnaire?
JUROR: I have. My company would.
THE COURT: Would keep paying you?
JUROR: Would keep paying me.
THE COURT: So it would not be a financial hardship for you to serve?
JUROR: No.
THE COURT: Page 11, Question 33. Your wife works in a law office.
JUROR: Yes.
THE COURT: But it looks like it's a real estate --
JUROR: Real estate attorney, yes.
THE COURT: Is she an attorney or is she --
JUROR: She is an attorney, yes.
THE COURT: Okay. That's what she does, real estate?
JUROR: Yes.
THE COURT: The next page, you have a brother who is, I guess, in the Boston police?
JUROR: Yes.
THE COURT: It looks like for about 20 years.
JUROR: Yes.
THE COURT: Does he have any special -- what's his rank?
JUROR: He's a patrolman.
THE COURT: Does he have any special assignment currently that you're aware of?
JUROR: He actually just got promoted to something, I don't know what it is, but he was working as a patrolman in A 1 here in the North Station for about 20 years. He just, over the last two years, he's in West Roxbury.
THE COURT: Did he -- was he personally involved in the events of the marathon?
JUROR: I don't believe he was personally involved. I know he was ordered. I don't know where he was ordered.
My brother-in-law also was ordered as well. He's a patrolman as well. I don't know if I put that on there.
THE COURT: I don't think you did. Tell us about him.
JUROR: So my brother-in-law also is in Area 1. He currently does the graveyard shift. And again, he was ordered. I don't know what --
THE COURT: Does that mean they were on duty?
JUROR: On duty.
THE COURT: But you don't know what they were doing?
JUROR: Right.
THE COURT: Just to get the relationship straight, is your brother-in-law your wife's brother or your sister's husband?
JUROR: My sister's husband.
THE COURT: Question 36, we asked whether you would tend to give greater weight to people's testimony if they were law enforcement officer as opposed to non-law-enforcement officers.
JUROR: Yes. I mean, being in that position I feel we have to trust our police and any law enforcement and trust that they're acting in an honest way.
THE COURT: I think many people would agree with that as a general principle. But the question is whether if you had testimony from a witness who happened to be a member of law enforcement, would you be inclined to accept that more readily than you would accept the testimony from someone who was not law enforcement?
JUROR: Possibly.
THE COURT: All right.
JUROR: Just being a police officer, I would think they are truthfully answering the questions, not to say that the other witnesses wouldn't, but I think it would weigh a little bit more.
THE COURT: Let me ask you to go to Page 20. In Question 77 we asked whether on the basis of things you've heard or read or seen in the media or otherwise, whether you had an opinion about whether the defendant was guilty or not or whether he should receive the death penalty or not, and you answered yes, that you had an opinion that he was guilty by checking the box A, and then also that he should receive the death penalty by checking the box at C.
The question went on to ask, if you answered yes to those questions, would you be able or unable to set aside your opinion and base your decision about guilt and punishment solely on the evidence presented to you in court, and you checked the box saying you would be able to do that. Can you tell us about that?
JUROR: Well, I mean, from seeing and seeing all the evidence that was publicly available, you know, and the -- having all the casualty that occurred during that, yes, I feel that he is guilty, and I think the punishment should be, you know, death, because personally I think that this is something that -- I feel takes a greater weight as 9/11, you know, where there were so many lives affected, you know, with, you know, legs or whatnot, you know, that they live every single day now. And I know 9/11 is a bigger volume. But these folks that were at the finish line have to live every single day now with that, knowing and waking up and not knowing, having limbs or whatever happened to them, I feel is a guilty plea from my point. Sorry.
MR. BRUCK: We're satisfied.
THE COURT: Okay. All right. Let me just ask, in Question 80, your younger sister was at the finish line?
JUROR: Yeah, so she was at a bar about two -- she was very close to the finish line. I actually talked to her, when I found out what happened, I finally got in touch with her and had to navigate her through Boston to get to a safe place. She was hysterical. She was running across the finish line and had no idea what happened and trying to get in touch with my brother, who had the day off during that day, trying to get in touch with him.
THE COURT: Yeah, okay.
JUROR: So it was a very --
THE COURT: Good. Thank you.
(The juror was excused.)
COURT CLERK: Juror No. 345.
CLERK MAYNARD: Juror No. 345.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat. Do me a favor, keep your voice up, speak into the mic so everybody around the table can hear you. And this is adjustable, so it can go up and down. Make sure you keep your voice up.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here, have you been able last to follow my instructions about avoiding discussion of the case with anyone?
JUROR: Yes.
THE COURT: And also any exposure to media accounts?
JUROR: Yes.
THE COURT: Okay. Thank you. You're a radiology tech?
JUROR: I was.
THE COURT: Was. Change of circumstances? It said through 2015.
JUROR: I work for a veterinary clinic now. Well, I do some x-rays for them, but I'm more of a vet tech now.
THE COURT: Okay. Tell us briefly what this is? You just assist the veterinarian?
JUROR: Assist the veterinarian, yes.
THE COURT: We asked about social media. You use Facebook daily, it says.
JUROR: Yup.
THE COURT: And you say you put opinions and pictures. What kinds of opinions do you post?
JUROR: Well, my last one was telling any friends of mine that don't vaccine their kids to defriend me. I am opinionated.
THE COURT: Okay. So a variety of issues, is that it?
JUROR: Yup.
THE COURT: Have you posted any issues about this case or about the events?
JUROR: Not recently. I might have when it was all going down, but I honestly don't remember.
THE COURT: You mean as events were unfolding that week?
JUROR: Yes.
THE COURT: Let me ask you to turn to Page 19.
JUROR: Okay.
THE COURT: You say you worked briefly with Dr. Russell.
JUROR: Yes.
THE COURT: Tell us a little about that.
JUROR: I worked at the time when I was an x-ray tech, I worked for Concentra medical centers and he was a relief doctor and covered for our doctors.
THE COURT: What was the time frame?
JUROR: He'd come in maybe once, twice, three times a month, occasionally I think there was a day he was there for a couple of days or a week covering a vacation.
THE COURT: No. I meant what years was this?
JUROR: Let's see.
THE COURT: It doesn't have to be precise. I'm trying to get an idea. Five years ago? Ten years ago?
JUROR: Probably five years ago because I left Concentra about two, three years ago. So about five years ago.
THE COURT: So in the 2010 to '12 range?
JUROR: Yeah.
THE COURT: When did you leave?
JUROR: I left in 2012.
THE COURT: You might have told us in Question 26. You say 2012. You say you were there at 2008 to 2012. So it would be in that range someplace?
JUROR: Yes. More towards the end of it.
THE COURT: And he was one of several doctors --
JUROR: Yes.
THE COURT: -- that you'd work with?
Let me ask you to turn to Page 20, Question 77. In that question we asked in multiple parts whether based on things you'd seen or heard in the media or otherwise whether you had an opinion that the defendant was guilty or not guilty or should receive the death penalty or not receive the death penalty. You selected "unsure" by checking that box to each of those, but added after A, about whether he was guilty, you said "but leaning towards guilty."
We then asked below that series of questions in the same Question 77, "if you answered yes," which you didn't quite but you came close, "would you be able or unable to set aside your opinion and base your decision solely on the evidence presented in court?" And you checked "able."
JUROR: Yes.
THE COURT: Can you tell us about that?
JUROR: I have a very scientific mind and I go by facts that are presented to me and not what the news likes to say and hearsay. I'd rather have it in front of me and I can judge for myself.
THE COURT: Okay. I'm sure you understand that in our criminal justice system when somebody is accused of a crime, they're presumed to be innocent of the crime unless and until the government proves that the person is guilty by proving it at trial to the jury. And the jury, if the jury is convinced that the person is guilty and holds that conviction beyond a reasonable doubt, then the jury is justified in finding the person guilty. But if the jury is not so convinced, it's the jury's obligation to find the person not guilty. Do you understand that?
JUROR: I do.
THE COURT: Would you be able to judge the defendant's guilt or innocence on the evidence at trial under on those principles?
JUROR: I think so.
THE COURT: Let me ask you about Question 82.
JUROR: Yes.
THE COURT: Krystle is one of the victims who was killed.
JUROR: Correct.
THE COURT: It talks about this. You attended the funeral to block Westboro Baptist from picketing.
JUROR: They were supposed to have shown up to picket and say how all bad things happen because of gays, and I don't believe in the Westboro Baptist Church. And I don't believe that anybody -- if it was any funeral, I would have liked to help stop them from disrupting something.
THE COURT: Did you know Krystle?
JUROR: I did not.
THE COURT: So you were going because --
JUROR: Because of Westboro Baptist.
THE COURT: -- because of the Westboro Baptist issue?
JUROR: Yes.
THE COURT: So let's turn to Page 23. Beginning there with Question 88, we asked a series of questions about your views concerning the death penalty.
JUROR: Yup.
THE COURT: In 88 we asked if you had general views about the death penalty, what were they. And you said, "I think it is a valid punishment in cases that are 100 percent proved."
JUROR: Correct.
THE COURT: Can you tell us what you meant by that.
JUROR: As long as there's absolutely no doubt, which there wouldn't be, because he was found guilty, but to me it seems like there would need to be a stronger, 100 percent everything points to he was found there, he was DNA, fingerprints, all that stuff. I would want to be extremely sure before I put someone to death as opposed to life in jail.
THE COURT: Question 89, we asked if you could put yourself on a numerical scale from strongly opposed to strongly in favor. The way we asked the latter question was if the 10 on the scale reflected a belief that the death penalty should be imposed whenever the defendant has been convicted of intentional murder.
JUROR: Yup.
THE COURT: You selected 9. Any further explanation you want to give of that?
JUROR: No, just if you purposely kill someone, I don't see why shouldn't get the death penalty.
THE COURT: Let's go to Question 90 on the next page.
JUROR: Okay.
THE COURT: Here, rather than asking you to pick a number on a scale, we asked you to look at the various statements and see if there was one that reflected your feelings about the death penalty in a case where someone had been proven guilty of murder. And of course when we're talking about the penalty we're always talking about a case when someone has been convicted of intentional murder. You don't get to the penalty question unless you have somebody in that condition, right?
JUROR: Okay.
THE COURT: So you selected E when you filled out the questionnaire that said you were in favor of the death penalty, but 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 in the case.
JUROR: Correct.
THE COURT: Does that accurately represent your view?
JUROR: Correct.
THE COURT: You said that if you were a hundred percent convinced the death penalty was appropriate, you would think that it could be imposed, and then you said of course the person's been convicted and so on. Do you think that it should be imposed in any case where the defendant has been convicted of intentional murder?
JUROR: Intentional, set out to do it? Yes.
THE COURT: Okay. Let's look at Question 95 and 96 at the bottom of Page 25. This is now in reference to the present case. If you found this defendant guilty and you decided the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty. And you checked yes.
JUROR: Yes.
THE COURT: And then in the next question you're asked the companion question to that, really. If you found the defendant 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: Yes.
THE COURT: And you checked yes to that.
JUROR: Yes. I don't know the facts of the case so I don't know which one will --
THE COURT: Now in that case, the case proposed by Question 96, the premise is still the same, that he has been convicted of intentional murder, right? So in the case of an intentional murder and you decided the life imprisonment was appropriate, you could conscientiously vote for life imprisonment?
JUROR: If the facts of the case warranted it, I would say yes.
THE COURT: Okay. Thank you.
MR. MELLIN: Good morning, ma'am. I'm Steve Mellin and I'm one of the prosecutors on the case. I just wanted to follow up a little bit on those questions.
JUROR: Okay.
MR. MELLIN: When Judge O'Toole was asking you, you said that if it's intentional and he set out to do it, that that would be a case where you would vote to impose the death penalty. Is that right?
JUROR: Yes.
MR. MELLIN: Now, do you understand in a case like this, before the jury would ever be deciding the punishment, the jury would first have to find the defendant guilty of one of these capital counts, do you understand that? Right?
JUROR: Yup.
MR. MELLIN: Then the question is you've already found him guilty of one of these capital counts that deals with things like the killing of others in relation to the use of a weapon of mass destruction or something like that.
JUROR: Uh-huh.
MR. MELLIN: Now we're going to get to the penalty phase, and that's the phase where the government puts on evidence about the aggravating factors and the defense has the right to put on evidence about the mitigating factors. Do you understand that?
JUROR: Yes.
MR. MELLIN: At that point, because you've already found him, the defendant guilty of this capital count, are you going to go into that second phase with your mind already made up and automatically impose the death penalty?
JUROR: No. I want to know the facts behind why he did it. I probably mis-- on these, it didn't say intentionally murder when I was answering yes to both of them. It just said he was found guilty of murder. So I find that there will be -- I want to know what influenced him. I want to know what caused him, if he is found guilty, I want to know what caused him to do the actions, and if it's something that was outside of his control that caused him to do it, then yeah, there's definitely going to be more towards life imprisonment. If it was just him saying I want to kill people, then I would lean towards the death penalty, to be perfectly honest.
MR. MELLIN: Maybe I was confused by your answer to one of the judge's questions. So are you saying you're going to listen to all of that and carefully consider all of the evidence before you decide what the appropriate punishment is?
JUROR: I would hope so.
MR. MELLIN: Does that include you could decide based on the evidence to impose the death penalty as well as based on the evidence decide to not impose the death penalty?
JUROR: I would like to think so, yes.
MR. MELLIN: Just to kind of wrap it up, if you got to the point where you believe that the aggravating factors sufficiently outweighed the mitigating factors to justify a sentence of death, would you be able to impose and vote to sentence someone to death?
JUROR: Yes.
MR. MELLIN: Let me jump back, if we can, to your posts at the time of the event. Do you recall what you posted about the Boston bombing?
JUROR: I wish I could say yes to that, but honestly that was so long ago and I am -- I will admit I am a Facebook addict. I post a lot. Anybody wants to look at my Facebook, I'll be more than happy to let you go back and look at it.
MR. MELLIN: You may regret making that offer.
JUROR: I said I'd let you'd look at it. I'm not giving you my password.
MR. MELLIN: Is there anything you've posted since the time of the events that has to do with the Boston bombing?
JUROR: Again, I apologize. I post so much, I honestly don't remember. I know I have not posted anything since I was ordered not to, and I don't remember posting anything in recent times that had anything to do with it.
MR. MELLIN: So given your answers, is it fair to say there's nothing about what you may have posted two years ago or a year ago that would impact your decision making in this case?
JUROR: I don't believe so.
MR. MELLIN: So if you were on the jury, would you keep an open mind and decide the case based on the evidence --
JUROR: I'd like to think so, yes.
MR. MELLIN: -- that you hear?
You mentioned that you had some interactions with Dr. Russell.
JUROR: Yes.
MR. MELLIN: How did you know Dr. Russell's connection, if at all, to this case.
JUROR: I believe one of my co-workers from then actually saw his picture on one of the news stations and texted me that it was him, and we put it together that way.
MR. MELLIN: Okay. And when was that? Because you say that, in answer to Question 84 on Page 22, you write that you briefly worked with Dr. Russell, and "I believe he is the defendant's sister-in-law's father."
JUROR: Correct.
MR. MELLIN: How did you gain that information?
JUROR: Like I said, one of my ex-co-workers texted me and we looked at the news footage that would play over and over again of his face and we put it together that way that it was the same doctor that we worked with.
MR. MELLIN: Do you recall when it was you were putting that together?
JUROR: Relatively after -- I believe he was coming into one of the courts with his daughter. It was during that time when she was coming to the courts. I don't remember the exact dates, I do apologize.
MR. MELLIN: Is there anything about learning that information that might affect your ability to be fair and impartial in this case?
JUROR: I don't believe so.
MR. MELLIN: And you talked about going to Krystle Campbell's funeral. Again, if you could just explain that, why were you there?
JUROR: Westboro Baptist Church had threatened to picket the funeral. I don't know if you know anything about Westboro Baptist Church, but they're an evil organization that basically blames everything bad in the world on gays, and I have quite a few gay friends, so I despise them greatly and will do anything I can from causing pain to other people.
MR. MELLIN: Other than that event, you had no connection to Krystle Campbell?
JUROR: No.
MR. MELLIN: Is there anything about attending that event, her funeral, and kind of blocking off the picketers that you believe might have any impact on your ability to be fair and impartial in this case?
JUROR: Not in this case, no.
MR. MELLIN: Thank you, your Honor.
MS. CLARKE: Good morning. My name is Judy Clarke. I'm one of Jahar Tsarnaev's lawyers.
JUROR: Good morning.
MS. CLARKE: I just had a couple of questions if I could follow up on Dr. Russell first. If Dr. Russell or a member of his family actually testified, do you think that would -- your knowledge of him would influence you in any way?
JUROR: I know him to be a kind man, but other than -- I liked working with him. I don't know -- I don't understand.
MS. CLARKE: How much interaction did you have with Dr. Russell?
JUROR: I was the x-ray tech for him and I did medical assisting for him. So we'd interact with him, well, whenever he was there, all day long basically.
MS. CLARKE: Sure. So you liked him.
JUROR: I did.
MS. CLARKE: He was friendly with you.
JUROR: Yup.
MS. CLARKE: And so if he testified, got called by the defense, would that influence your judgment one way or the other?
JUROR: I guess it depends on what he said.
MS. CLARKE: Would you tend to believe him?
JUROR: Most likely. Unless he was saying something completely outrageous, I would assume that he would be telling the truth like everybody else on the stand is supposed to.
MS. CLARKE: Did he ever talk with you about his family?
JUROR: He did.
MS. CLARKE: And what kind of information did you get? What did he tell you?
JUROR: I did know that was estranged from his daughter and that he wasn't a fan of his brother, but other than that, there was no in-depth conversations.
MS. CLARKE: How did those conversations take place?
JUROR: He was aggravated one day that he, I guess he had gotten into a tiff with his daughter over --
MS. CLARKE: Over?
JUROR: I don't even know what it was. He was just aggravated, so we were picking on him because he was being grouchy and he basically said he had a tiff with the daughter over the son-in-law and it made him grouchy.
MS. CLARKE: How do you store that information? Does that influence you one way or the other?
JUROR: Everybody has tiffs with their son-in-laws, don't they?
MS. CLARKE: I think that might be true. But would that influence you one way or the other if he testified?
JUROR: I don't believe so. I mean, unless -- again, I'd have to know what he was talking about and what he was talking about in reference to. I mean, I'm sure what he's going to say is going to influence me because that's why he's up there.
MS. CLARKE: Sure. And would you have any trouble believing other members of his family based on what he talked to you about, say, if his wife or his daughter testified?
JUROR: Again, I would want to see what they were testifying. I don't know them. I've never met anybody but him.
MS. CLARKE: Sure. You can see what I'm getting at.
JUROR: I understand. But I don't -- if you're putting them up there, they obviously know something you want me to know.
MS. CLARKE: Right.
JUROR: So I would tend to probably believe what they're saying.
MS. CLARKE: Okay.
JUROR: But if they put somebody up, I'd probably tend to believe what they're saying, too, until everything --
MS. CLARKE: Sure. Until it all gets sorted out.
JUROR: Exactly.
MS. CLARKE: As you can see, not every juror knows a potential witness or somebody connected to the case in the ways that you know.
MR. MELLIN: Objection.
MS. CLARKE: So just inquiring about it.
JUROR: Yeah.
MS. CLARKE: Could I take you to the questions about the death penalty. And I really appreciate your helping us sort of understand where your views come from.
It sounded like in answer to the judge's question that you would impose the death penalty in any case where the defendant was, and I'm just looking at my notes, "convicted of intentional murder," and you said "yes, if he set out to do it, yes." That would mean you would impose the death penalty?
JUROR: Most likely, yes.
MS. CLARKE: So in a capital case, the defendant would be convicted of an intentional, deliberate murder. No self-defense, no excuse. Right?
JUROR: Okay.
MS. CLARKE: Intentional, deliberate murder. And what I'm hearing you say is the result for you would be the death penalty?
JUROR: I don't know how to answer that, because if you're wording it that way, then yes, it would probably be the death penalty. But I want to know is why was it an intentional, like what drove him to that. Yes, he could be convicted of that. I don't want to say he's going to be, but if he's convicted of that, he was convicted of intentional, but to me there's intentional -- like if someone purposely drove their car into a child with, that's what they're going to do, and kill, I think they should get the death penalty. If someone purposely drove their child, drove their car into a child because someone had their child hostage? I want to know what's the back story before I -- does that make sense?
MS. CLARKE: Well, I guess it does.
JUROR: Maybe I watch too much TV.
MS. CLARKE: Part of -- we all do. Part of the, part of the dilemma is trying to put yourself in the frame of mind that you have just, as a juror, convicted someone of a willful, deliberate, intentional killing, multiple killings, with no excuse. And what I'm hearing you say is if there's an excuse, you want to know about it. But that might stop you from convicting. And so we're talking about a situation where there's an actual conviction, where you've sat on the jury and you are satisfied beyond a reasonable doubt that there was a willful, intentional, deliberate murder.
MR. MELLIN: Your Honor, objection. These questions are not fair, because they're embedding certain aggravators and then asking the juror if you embed those aggravators, and you have found those aggravators, would you impose the death penalty, and the answer to that question could be yes without discussing the rest of the evidence.
THE COURT: I think it can be misleading, particularly to laypeople.
Let me come back to what I said earlier today and to remind you that in the penalty phase, again, take the fact that the jury has found beyond reasonable doubt that the person is guilty of murder which requires intent. Okay? So then the question is what is the appropriate penalty between the choice of two, the death penalty on the one hand, life imprisonment without the possibility of release on the other hand. You'll hear evidence likely from the government what we call aggravating factors, which make this case perhaps worse than other cases of intentional murder. You'll hear evidence from the defense about mitigating factors, which might be about events themselves or might be about the defendant and his background, and, as you put it, what the back story was, in one sense.
And the juror's job is to consider all that evidence, decide if the government's proved the aggravating factors, decide if any juror feels that a mitigating factor should be taken into account, and then weigh all that. You'll be pulled in two different directions, one to aggravate the crime, one to mitigate it. And the question is, would you be able to have an open mind through all of that and evaluate everything at the end of that presentation without any precommitment to one position or another based on the fact of his conviction of murder, or would the fact that you found him guilty of intentional murder end the question that you tend to go to the death penalty because of it?
JUROR: So in the second phase is basically when you would tell us what caused him to have the intent, right? Is that what I'm -- is that what aggravating circumstances, caused the intent?
THE COURT: That could go on either side of the equation.
JUROR: Which is why I could say that I would think that I could go on either way. I want to know what caused the intent before I decide. Does that -- I'm sorry.
MS. CLARKE: Your Honor, the problem with that is we're talking self defense, duress, some kind of...
THE COURT: Good. And that's the problem with the line of questioning. There are too many hypotheticals and it's a mini instruction that is partial and it's difficult to get first an understanding answer on the fly like this.
MS. CLARKE: I understand. If I could just sort of get it clear.
Your feelings about the death penalty, you are a strong proponent of it?
JUROR: Yes.
MS. CLARKE: And you would need someone to explain why the actions took place.
JUROR: Correct.
MS. CLARKE: Before you could consider anything other than the death penalty.
JUROR: Before I could consider anything.
MS. CLARKE: Other than the death penalty in an intentional murder case.
JUROR: I believe in the death penalty for an intentional murder case, yes. I would not vote for the death penalty until I knew all the circumstances. I'm not putting someone to death myself unless I know in my head why it was done.
MS. CLARKE: Sure. And if you heard no evidence of why, and all you heard was evidence of mitigating factors such as upbringing or learning disability or something like that.
JUROR: To me that's --
MR. MELLIN: Your Honor, I object, because that is not what the evidence is going to be at that stage.
THE COURT: Well, I don't know what the evidence is.
MR. MELLIN: There's a gateway intent factor that the government has to prove and the jury has to find before the jury can even make that. And right now Ms. Clarke's question is carving out that portion, making this a misleading question.
MS. CLARKE: It's not, your Honor, it's a mitigation impairment question, and I think what we're hearing this juror say, Ms. 345, is that the death penalty is her answer unless there's an answer to the why question, which is not the defendant's burden.
THE COURT: All right. That's why I come back to my question, which was after you heard from both sides things that tend to aggravate, things that might tend to aggravate, things that might tend to mitigate, could you take all of that into consideration before deciding --
Now, the other point is, I made this, but let me make it a slightly different way. Not only do you not get to the question of the penalty until you found somebody guilty of intentional murder, but when you get to the question of penalty, that's the question. Okay? So what is the appropriate penalty of the choice of the two. Okay? The jury will be presented two options, the death penalty or if not that, life imprisonment without the possibility of release. And that's what the penalty phase evidence will be about. One side will be arguing presumably for the death penalty, the other side will be arguing mitigation for life imprisonment. And the question is, will you have an ability, having found him guilty of intentional murder, to fairly consider the evidence from both sides before deciding the question of penalty. That's really the question that's getting asked.
JUROR: I believe so.
THE COURT: Or does your conviction of, if it happens, of intentional murder, does that close the question for you that it means --
JUROR: No.
THE COURT: -- it's the death penalty?
JUROR: No. It doesn't close the question. Because I still haven't -- I'm still waiting for, I want to know why the intention was there.
THE COURT: Okay.
MS. CLARKE: May I ask the mitigation impairment question one more time.
THE COURT: Go ahead.
MS. CLARKE: In the penalty phase, and I think you had enough of an explanation of what it takes to get there, in the penalty phase, would you be able to consider in a meaningful way mitigation that is like a learning disability or a situation of childhood as opposed to why the person committed the crime?
JUROR: I think those things would be part of the reason why, wouldn't they?
MS. CLARKE: If you didn't --
JUROR: So yes.
MS. CLARKE: If you didn't hear why the crime was committed?
JUROR: Don't you have to hear why?
MS. CLARKE: If you didn't hear it.
MR. MELLIN: Your Honor, objection.
THE COURT: Yeah, I think this is unproductive.
JUROR: I'm sorry.
THE COURT: That's all right. No, no.
MS. CLARKE: I don't know, did anybody ask you, would there be a financial hardship for you if --
JUROR: No.
MS. CLARKE: If you're gone for three or four months, you'll get paid?
JUROR: I won't get paid, but there won't be a financial hardship.
MS. CLARKE: I want your life.
JUROR: It's not going to be fun. But I'm fortunate enough that if I did not get paid I would still be okay.
MS. CLARKE: Okay. Thank you.
THE COURT: Okay. Thank you very much. Just leave the questionnaire there.
(The juror was excused.)
MR. CHAKRAVARTY: Can I make one point before the next juror, your Honor.
THE COURT: Hold off just a moment.
MR. CHAKRAVARTY: Just a quick point, your Honor. In questioning this last witness, Mr. Russell, who is the father-in-law, was mentioned several times, obviously for understandable reasons, whether there's any connection that this juror has with any of the events or facts in the case. But Ms. Clarke characterized Mr. Russell and other family members as potential witnesses. They've never given us notice of any of these people as witnesses. And going down a line of questioning with surprise witnesses for jurors puts both us at a disadvantage as well as defeats the purpose of having exchanged witness lists. Theoretically they could raise this with every juror about some other witness that they anticipate they have kept from us. And so if -- it didn't affect her testimony in terms of exploring whether she has any connections to the case, but it's dangerous going forward, and I just wanted to alert the Court and ask that if there are any other such witnesses that you anticipate wanting to confront jurors with, that we get notice of who those people are.
MS. CLARKE: We'll be happy to. We'll supplement our witness list as we go along. As the Court well knows, both sides have an opportunity to do that.
MR. MELLIN: Actually, that's not true, your Honor. The government only has the opportunity to supplement with potential rebuttal witnesses.
[REDACTED]
COURT CLERK: Juror No. 346.
(Juror 346 enters the courtroom.)
CLERK MAYNARD: Juror 346.
COURT CLERK: Ma'am, over here, if you would. Have a seat. Please sit here. Speak into the mic so everybody can hear you.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to abide by the instructions to avoid any discussion of the case with anybody?
JUROR: Yes.
THE COURT: Except to tell people where you were going?
Also as much as possible to avoid the media?
JUROR: The media, yes.
THE COURT: That's the questionnaire you filled out. We're going to follow up on some of the questions you wrote in it and maybe have some other questions for you as well. Okay?
We asked people, first of all, I'm on Page 5, whether because of the schedule in the case they might have some difficulty that was a serious difficulty in serving.
You indicated that you would be able to fix your schedule if that was the case.
JUROR: Yes.
THE COURT: You are a home care aid.
JUROR: Yeah, I work with elderly people.
THE COURT: Yeah. And you would be able to continue working on the schedule that accommodated serving on the jury --
JUROR: Yes.
THE COURT: -- is that right?
How do you fix your hours? In other words, do you just set them yourself or do you have to go to somebody and say this is the schedule I want to work next week? How does it work?
JUROR: I set my hours. I have 30 patients, and on those patients, I go 8 to 3, I give them medications and I give meal prep. Sometime when I have to take vacation, I give to my other home health aide and they accommodate me. I don't have like a schedule. Sometimes I have five patients, sometimes I have three. It depends. I make my own hours.
THE COURT: Okay. And if you're not working at that, I presume you're not getting paid for it, right?
JUROR: Yeah, I don't get paid.
THE COURT: So does the fact that for four days from 9 a.m. to 4 p.m. you'd be here, would that be a financial burden to you or not?
JUROR: No. I'd be able to see my patient on Saturday and Sundays. Yup. I'd be able to do paper works on those days.
THE COURT: All right.
JUROR: I do much of the work on the computer.
THE COURT: I see.
JUROR: Like I put what they need, if they need laundry, shopping, anything, I put it in. If they have doctor's appointment, I make it out.
THE COURT: Okay. So that even on Monday through Thursday, you could do some catch-up work like that in the evenings, for example.
JUROR: Yes.
THE COURT: Okay. All right.
How much do you use Facebook?
JUROR: Not too much. Just with my kids.
THE COURT: You served on a jury in Massachusetts once?
JUROR: Yes.
THE COURT: How long was that?
JUROR: For three days.
THE COURT: How long ago?
JUROR: It was like five years ago.
THE COURT: So let me ask you to turn to Page 20. If it's convenient, you want to take the clip off the top, you can do that.
JUROR: Yes.
THE COURT: So in Question 77, near the top of the page, we asked whether based on things you'd seen or read in the media or otherwise, had you formed an opinion about some matters, first whether the defendant was guilty or that he was not guilty, that he should receive the death penalty or should not receive the death penalty, and there were some boxes that you could check to give your answers, right?
JUROR: Uh-huh.
THE COURT: You checked yes to the box that you had formed an opinion that he was guilty. And then you checked "unsure" as to the rest.
JUROR: Yup.
THE COURT: Just below that, before Question 78, it goes on to say, if you answered yes to any of these questions, and you did, you answered yes to the question whether you thought he was guilty, would you be able or unable to settle aside your opinion and base your decision about guilt in this case solely on the evidence that would be presented to you in court, and you checked that you would be able to.
JUROR: Yeah.
THE COURT: Can you tell us about that? Why do you feel that you -- although you have formed an opinion, that you would be able to set that aside and decide the questions presented in the trial based solely on the trial evidence? You think you're able to do that? And I guess I'd just like to have you explain why you think you are able to do it.
JUROR: Depend on the evidence, I could make sure that I see if he's guilty or not, or he could go to the death penalty.
THE COURT: I want to separate the penalty first from whether he was guilty or not. Was the state trial you had a criminal trial or a suit between private people?
JUROR: Between private people, yeah.
THE COURT: Okay. In criminal trials, someone who is accused of a crime is presumed to be innocent of the crime at the beginning of the trial and throughout unless and until the government proves that the person is guilty of what's been charged and proves it by the evidence that is produced in the course of the trial.
JUROR: Yeah.
THE COURT: Do you understand that?
JUROR: Yes.
THE COURT: And in order for a jury to return a verdict of guilty, the jury must be convinced that the has committed the crime charged and they must be convinced beyond a reasonable doubt. If they have a reasonable doubt about whether a person is guilty or not, it is their obligation to find him not guilty.
JUROR: Yes.
THE COURT: Do you understand those principles?
JUROR: Yes.
THE COURT: If you were a juror in that case would you be able to judge the evidence in this case faithfully to those principles?
JUROR: Yes. I do see the evidence to see if he's guilty or not.
THE COURT: And if to any of the counts you thought that the government had not satisfactorily convinced you beyond a reasonable doubt, could you vote not guilty as to that?
JUROR: Yes.
THE COURT: We asked some questions about the death penalty beginning at Page 23, Question 88. And we asked there if you had views about the death penalty in general, what are they. I'm not sure, maybe you could tell us what you were trying to convey when you answered that question.
JUROR: I put if I -- if you are more than one crime, like if you have more than one, you could be ended up life imprisonment without the death penalty.
THE COURT: I'm not sure I follow.
JUROR: If you have more than one crime, you can be facing life in prison, not the death penalty.
THE COURT: Can you explain why you think that? How do you come to that thought? What do you mean, "more than one crime"? You mean a criminal history, a criminal record from prior cases? Or do you mean more than one crime in a single case?
JUROR: More than one crime in a single case.
THE COURT: Do you think that if there's more than one crime, that's a reason for life imprisonment rather than the death penalty? Is that what you're saying?
JUROR: Yes.
THE COURT: Can you explain briefly why you think that?
JUROR: Because I don't -- like the death penalty is not something with me.
THE COURT: I see. Okay. If you go quickly to Page 25 at the bottom, we asked you if you found the defendant guilty and thought the death penalty was an appropriate punishment, could you conscientiously vote for it, and you said you weren't sure.
JUROR: Yeah.
THE COURT: That's because of your attitude toward the death penalty?
JUROR: Yeah.
THE COURT: All right.
MR. BRUCK: We're satisfied.
THE COURT: Thank you.
(The juror was excused.)
COURT CLERK: Juror No. 348.
THE COURT: Hold off just a second.
COURT CLERK: Hold off.
THE COURT: Could I direct everyone's attention to Question 85.
MS. CLARKE: For the last juror?
MR. CHAKRAVARTY: That's Jeff Bauman.
THE COURT: Is that a reason?
MS. CLARKE: Yes.
MR. CHAKRAVARTY: He will be.
THE COURT: He's a victim in the case, right? He's going to testify?
MR. CHAKRAVARTY: Yes. He will be a witness as well.
THE COURT: I don't see any reason to go any further.
MS. CLARKE: We agree.
THE COURT: Okay. We'll skip 348.
COURT CLERK: Can 348 go home?
THE COURT: Yes.
COURT CLERK: With the same instructions?
THE COURT: Yes.
COURT CLERK: Juror No. 349.
(Juror 349 enters the courtroom.)
CLERK MAYNARD: Juror 349.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat right here. Thanks. Speak into the mic so everybody around here can hear you.
JUROR: Okay. Can I get my glasses? I didn't realize I had to read.
THE COURT: Of course.
JUROR: Sorry.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow the instructions to avoid discussing the case with anyone?
JUROR: Yeah.
THE COURT: And as much as possible to avoid any media?
JUROR: That's a little harder.
THE COURT: But when you've seen it, you've been able to put it aside?
JUROR: Yeah.
THE COURT: So we put the questionnaire there because we're going to follow up on some of the answers you've given us.
JUROR: Okay.
THE COURT: Feel free to take the clip off.
Tell us what you do.
JUROR: Product development for women's clothing.
THE COURT: What does product development involve?
JUROR: Design of the garments, coloring the garments, putting it in to work with the factories, approving samples, fitting samples.
THE COURT: Something you've been doing for a while?
JUROR: Yes.
THE COURT: I take it in your current position you've been there only since mid December?
JUROR: Yeah, it's a new company, start-up company, so I've just started.
THE COURT: I think you were, if I looked -- later on you were wondering how the new job might -- people at the new job might react --
JUROR: Right.
THE COURT: -- if you were called. And this is on Page 19, Question 74 if you want to look at. And you said they were okay.
JUROR: Yeah. I got the -- I think I might have gotten the notification before I had started the job, so I didn't know, you know. And since it's a start-up, it's a start-up company as well, I was a little bit nervous. But they are very -- you know, whatever happens, happens. They're okay with it.
THE COURT: It's not going to be a financial hardship to you.
JUROR: No, they'll pay me. I might have anxiety in terms of my job, but, you know what I mean, because it's new, but, yes, they're fine with it.
THE COURT: Okay. With respect to social media, do you use it both personally and in connection with the job?
JUROR: I don't use social media for work. I use it personally.
THE COURT: Family and friends kind of thing?
JUROR: Yup. Yup.
THE COURT: So nothing in the fashion design area, you don't use it for that?
JUROR: No. I mean, I research, you know, like what other companies are offering, things like that, online. Do you mean that?
THE COURT: You mean by going to their websites.
JUROR: Yeah, I go to people's websites.
THE COURT: I'm more interested in things you might be posting.
JUROR: Oh. No. No.
THE COURT: So let me ask you to go to Page 20 and Question 77 near the top of the page, a multipart question. We asked whether based on things you had seen or read in the media or otherwise, had you formed an opinion about various matters, and you indicated yes, you had formed an opinion that the defendant was guilty. And as to the other matters, you checked you were unsure.
JUROR: Uh-huh.
THE COURT: Then below that we asked, if you answered yes to any of the questions, as you did, would you able or unable to set aside your opinion and base your decision about guilt in this case solely on the evidence that will be presented to you in court, and you selected the box that said you would be able. Can you tell us about that?
JUROR: Yeah, I think when I first checked the guilty, you know, if I felt that he was guilty box, I realized after, I don't know what all the charges are, so I can't know that he's guilty, because I don't know what the charges are or what the evidence is and all of that. But I think that there's involvement. There was so much media coverage, even just the shootout in Watertown. I watched it on TV. And so I feel like there's involvement there, like I think it's -- anybody would think that.
THE COURT: Yeah, it's understandable that, given the coverage, that people have --
JUROR: Right.
THE COURT: -- formed impressions and perhaps even conclusions. The question of course is in the formal process of a criminal trial, we ask jurors to put their minds in a condition that they will focus on the evidence produced in the trial and make their decisions that they have to make based on that evidence and not on things they know independently or from --
JUROR: Right.
THE COURT: -- some other source. And the question is would you be able to faithfully do that.
JUROR: Yes, I would.
Can I ask you a question about the media thing? Is the live feed that's going on now, the media's in the other room?
THE COURT: Yes. There's actually two members of the media here. And if we do a private, I told you you could have a private answer, they'll leave the room too.
JUROR: So for the trial, is that the same situation?
THE COURT: No.
JUROR: Would media be allowed?
THE COURT: Yes. The media and the public will be in the courtroom during that. Okay?
JUROR: Uh-huh.
THE COURT: We've asked people about how they might have been affected by events or how they may have reacted to them. In Question 82 we asked about whether you supported various activities after the event.
JUROR: Right.
THE COURT: You said you bought a T shirt from Life is Good.
JUROR: Uh-huh.
THE COURT: Is that the same or different from Boston Strong?
JUROR: Life is Good is a clothing T shirt company.
THE COURT: Right.
JUROR: They made a T shirt. I think it says "All You Need is Love" on the back, maybe. It just said Boston on the front, not Boston Strong. Then I think some of the proceeds went to the One Fund.
THE COURT: Okay. Do you still have the shirt?
JUROR: Yeah.
THE COURT: Do you wear it?
JUROR: Not really. I wore it to the marathon last year.
THE COURT: Uh-huh.
JUROR: But not really.
THE COURT: You were there as a spectator last year?
JUROR: Last year, I was.
THE COURT: That is 2014.
JUROR: Yeah, the most recent. I was not there the year --
THE COURT: Have you gone, typically or commonly?
JUROR: No. I went because a friend was running.
THE COURT: In 2014?
JUROR: Yeah. I was not there the prior years.
THE COURT: Beginning on Page 23 at Question 88, we asked a series of questions about your attitudes towards the death penalty.
JUROR: Uh-huh.
THE COURT: 88 was if you had general views, what are they.
JUROR: Uh-huh.
THE COURT: And you said you weren't sure, as I interpret it, you weren't sure of the law concerning the death penalty and would have to know that before you could --
JUROR: Right.
THE COURT: -- decide what your view was.
Is the subject something you've thought about, the appropriateness of the death penalty in general as a policy matter? Is that something you've thought about?
JUROR: I'm not opposed to the death penalty in general. I'm not -- I feel like I'm not for or against it. I would have to hear the evidence.
THE COURT: In Question 89, we asked for you to put yourself on a numerical scale from strongly opposed to strongly in favor and you put yourself sort of in the middle.
JUROR: Yeah.
THE COURT: Then in the next page, Question 90, instead of numbers we asked you to look at statements.
JUROR: Right.
THE COURT: And see if there was one that represented your feelings about the death penalty in the case of someone proven guilty of murder.
JUROR: Uh-huh.
THE COURT: You selected D, which is I'm not for or against the death penalty, I could vote to impose it or I could vote to impose a sentence of life imprisonment without the possibility of release, whichever I believe was called for by the facts and the law in the case.
JUROR: Right.
THE COURT: Is that a fair representation --
JUROR: Yeah, I think that's fair.
THE COURT: -- of your attitude?
JUROR: Uh-huh.
THE COURT: You have to say yes or no.
JUROR: Oh. Yes.
THE COURT: The reporter is taking down the --
JUROR: Head nod, yes.
THE COURT: But that fairly states your --
JUROR: Yeah, yeah, uh-huh.
THE COURT: If you go to Page 25, the bottom, Question 95. Now, particular to this case, if you found this defendant guilty and you decided the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty, and you said yes.
JUROR: That's true, yes.
THE COURT: Then on the next, top of the next page we asked the other side of that question. If you found this defendant guilty and you decided life imprisonment without the possibility of release was the appropriate punishment for him, could you conscientiously vote for life imprisonment without the possibility of release, and again you checked yes.
JUROR: Yes.
THE COURT: So it's yes to both of those questions.
JUROR: Uh-huh. Yes.
THE COURT: You're catching on.
MR. CHAKRAVARTY: Just very briefly. Good afternoon, just barely. My name is Aloke Chakravarty. I'm one of the prosecutors. You had expressed a concern or the question about the media arrangement.
JUROR: Right.
MR. CHAKRAVARTY: Is there some special concern you have?
JUROR: I think there's a lot, there were questions and there's a lot of conversation, and if you were a potential juror, you'd need to be avoiding the media, and it's so front and center, it's difficult. And, you know, just even driving in the car, the news comes on, and, you know, I've heard, you know, you try to switch it, but you hear things. So I just wondered, and I just would wonder that the jurors would remain anonymous, you know, if you were put on the jury, that it would stay anonymous and that it wouldn't be, you know, in the media who you were.
THE COURT: Yes. You will remain unidentified except by number until the case is over. You will probably be identified after the case is over.
JUROR: Okay. That was my question, I guess.
MR. CHAKRAVARTY: Your attendance at the marathon this past year, is that going to affect your ability to be fair and impartial in this case?
JUROR: No, no.
MR. CHAKRAVARTY: I just wanted to touch on the last series of questions that the judge had posed to you about the death penalty.
JUROR: Uh-huh.
MR. CHAKRAVARTY: If, after you've, you and the rest of the jury have decided guilty and you listen to all of the evidence in the penalty phase, both the aggravating and mitigating and you personally have come to the decision that the death penalty is appropriate, what gives you the confidence that you can say, "Yes, here's my vote, I vote to put this person to death"?
JUROR: Well, I think by all the evidence and by the instruction from the judge, whatever the law is, I would go with that. And, you know, I think I'm a pretty fair and equitable person, intelligent, and I would think it through.
MR. CHAKRAVARTY: That's all I have.
MR. BRUCK: Good afternoon.
JUROR: Hi.
MR. BRUCK: My name is David Bruck and I'm one of Jahar Tsarnaev's lawyers, and I have a few more questions. The good news is I think I'm the last person who will ask you any.
JUROR: Okay.
MR. BRUCK: The judge has told you that when the trial is over, the juror's names, you have to assume, would become public.
JUROR: Uh-huh.
MR. BRUCK: Let me back up a little. He asked you about being able to consider the evidence in court, and if the government proved their case, only consider the evidence that was presented in the court to find the defendant guilty.
JUROR: Uh-huh.
MR. BRUCK: I'm going to ask it the other way. If you're on the jury, knowing everything or having seen everything you've seen and heard everything you've heard and formed the opinion that you formed, and you're in the jury box and the government puts on their evidence but it leaves a reasonable doubt in your mind, probably guilty, maybe, but not beyond a reasonable doubt. And this sound like an easy question, but it's intended to be a hard question.
JUROR: Okay.
MR. BRUCK: Could you find this defendant not guilty and let him go home?
JUROR: I would listen to all the evidence, and what the law is. So if that was the case, yeah.
MR. BRUCK: Based on what the judge told you, that the burden of proof is on the government, it's never on the defendant.
JUROR: Uh-huh.
MR. BRUCK: But that's sometimes easier said than done.
JUROR: Right.
MR. BRUCK: Based on everything you know, do you think in the back of your mind you'd be expecting the defendant to prove he was innocent?
JUROR: So your question is would the defendant be expected to prove his innocence versus --
MR. BRUCK: To you.
JUROR: To me?
MR. BRUCK: Would you need, in this case, given everything you've heard and the opinion you formed -- the judge has told you what the rules are, but the point of this part of the trial is to find out what's inside you. And the law doesn't ask people to do things that are superhuman or more than a person can do.
JUROR: Right.
MR. BRUCK: So that's what I'm getting at. Do you think that what you have heard and the opinions you've formed might cause you to feel that the defendant would have to prove that he didn't do it in order for you to --
MR. CHAKRAVARTY: Objection, your Honor.
MR. BRUCK: -- find him not guilty?
THE COURT: Go ahead and answer it, if you're able to.
JUROR: I guess I'm kind of not clear on the question.
THE COURT: Maybe you don't understand it.
MR. BRUCK: I can try to make it a little simpler.
THE COURT: Make it a little shorter will help.
MR. BRUCK: Shorter would be good. Sorry. It's my fault, the way I asked the question.
I guess what it comes down to is knowing what you know and having formed the opinion that you formed, do you think you might need the defendant to bear a burden of proof and show that he was innocent before you could actually render a verdict of not guilty in the case?
JUROR: I think I would take whatever opinion I have and prior, and if I was on it and set it aside and listen to the evidence, and listen to the trial. And I don't think whatever feeling I could have now would be that -- would affect it.
MR. BRUCK: Okay. And knowing that the jurors wouldn't be anonymous forever, what would you feel like if the jury, all 12 members of the jury did find the defendant not guilty and you went back to your life out in the community?
MR. CHAKRAVARTY: Objection, your Honor.
MR. BRUCK: Could you do that?
THE COURT: Well, let me ask the question a slightly different way. When people learn that you have been on the case, if you and the other jurors had acquitted the defendant of some or all of the charges, would you be concerned about criticism from people about your decision?
JUROR: I hadn't thought about it that way.
THE COURT: And the second half of the question, really, is if you were worried about that, how, if at all, would that affect your service as a juror?
JUROR: Right, right. I think I would be okay with it, with whatever the decision that we made, if I was on the jury, I would stand by it and -- I guess I just kind of worry during the trial, you know, I don't know if we're, if you were on it, you were going back and forth from home and being, you know, I don't know, media following you --
THE COURT: No.
JUROR: -- or something. That's why I asked the question. I think once it was over, I would, if I was on it, I hope I would just go back to my life.
THE COURT: Okay.
MR. BRUCK: You put in your questionnaire, if you turn to Page 20 and look at 76, Question 76.
JUROR: Okay.
MR. BRUCK: Can you tell me what, if anything, you remember about the New York Times article that you checked out describing the start of the trial.
JUROR: There was some information about the -- I don't mean to point, but I don't know your name.
MS. CLARKE: Me? I'll remain anonymous.
JUROR: Okay.
MS. CLARKE: Judy Clarke.
JUROR: Yeah. There was some information about her and some prior trials.
MR. BRUCK: Do you remember, can you tell us what that information was?
JUROR: I think it was the Unabomber trial, maybe.
MR. BRUCK: Anything else that you can recall, if you think hard about it?
JUROR: Unh-unh, not really.
MR. BRUCK: And what was the connection -- you said it was about Ms. Clarke and about the Unabomber. Do you remember what it said?
JUROR: I think she was a defense lawyer for the Unabomber.
MR. BRUCK: A defense lawyer for the Unabomber.
JUROR: Yes.
MR. BRUCK: I mean, what was your reaction to that?
JUROR: I don't think I really had one.
MS. CLARKE: It's okay.
JUROR: What?
MS. CLARKE: It's okay.
JUROR: I don't know that I had a reaction. I just noted that she had, I guess.
MR. BRUCK: You noted it.
JUROR: That she's been involved with some big trials, national media-type trials.
MR. BRUCK: Okay. And that article was after you came to court to fill out the questionnaire --
JUROR: Uh-huh.
MR. BRUCK: -- that you saw that.
JUROR: It was not after the questionnaire, it was before.
MR. BRUCK: It was before the questionnaire.
JUROR: It says last week, it was before the questionnaire. It was before I even came here.
MR. BRUCK: Okay, after receiving your summons but before that.
JUROR: Yeah.
MR. BRUCK: Okay. I've gotcha. Excuse me.
I wanted to ask you a little bit about where you were on April 15, 2013, if you can remember.
JUROR: I was in New York City at Columbia Presbyterian hospital. My brother had brain surgery.
MR. BRUCK: Oh my goodness, is he okay?
JUROR: Yeah.
MR. BRUCK: Good.
And how did you find out about the marathon?
JUROR: Later when I got home to his home, where I was staying, it was on the news.
MR. BRUCK: And did you go back to Boston that week?
JUROR: Maybe a couple of days later.
MR. BRUCK: Okay. Where -- did you know anybody -- now that you've had more chance to think about it, anybody at all that was down there around the --
JUROR: (Juror shakes head.)
MR. BRUCK: Where were you on the 18th and 19th, the day of the search and the lockdown?
JUROR: In Watertown? I was at home.
MR. BRUCK: In Scituate.
JUROR: Yeah.
MR. BRUCK: So you didn't shelter in place or you did?
JUROR: No. I had just stopped working, actually. April 15 was my last day of work at a prior job, or the first day that I wasn't -- excuse me -- working. And so, yeah, I was in Scituate, I wasn't working. I don't remember if I went to the gym, whatever.
MR. BRUCK: Did the events of that day affect your travel or where you went or what you did?
JUROR: No.
MR. BRUCK: Your friend that ran the marathon in 2014, had she run the year before?
JUROR: How did you know it was a she?
MR. BRUCK: It was a lucky guess.
JUROR: She had not, no. It's my next-door neighbor's daughter.
MR. BRUCK: Okay. And was there any discussion with her about the --
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Yeah. And I think in the interest of time, we should move on.
MR. BRUCK: Okay.
THE COURT: We have a long way to go today.
MR. BRUCK: Sure. I understand.
You said you were unsure about whether Mr. Tsarnaev should receive the death penalty. Unsure can cover a lot of territory. And I guess what I'd like to know is within that unsure, do you lean one way or the other right now?
JUROR: I don't. I don't really know -- I don't know what the law, how the law reads about the death penalty. I am not for it or against it. I would go by what the law was.
MR. BRUCK: If I told you that the law in the end leaves it up to the jury once certain basic facts are proven, guilt beyond a reasonable doubt, intended to commit the crimes that are charged in this case, that after that it's really up to the jury, that law doesn't tell you what the answer is.
JUROR: Okay.
MR. BRUCK: That's what the judge meant when he said the jury's never required to impose the death penalty.
JUROR: Okay.
MR. BRUCK: I'll ask the question again, knowing that it really would be up to you, do you lean one way or the other right now?
JUROR: No.
MR. BRUCK: Bear with me just a moment.
That's all I have. Thanks so much
THE COURT: All right. Thank you. Don't forget your glasses.
JUROR: Thank you.
(The juror was excused.)
(Discussion off the record.)
COURT CLERK: Are we ready, Judge?
THE COURT: Yes.
COURT CLERK: Juror 350.
CLERK COPPOLA: Juror 350.
(Juror 350 enters the courtroom.)
COURT CLERK: Sir, over here, if you would, please. Have a seat. Keep your voice up, speak into the mic so everybody around here can hear you.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Let me ask since you were last here to fill out the questionnaire, have you been able to follow the instructions to avoid discussing the case with anyone?
JUROR: Yes. The best I could.
THE COURT: Yeah. And as well to avoid media reports about the case? I know that's a little difficult but have you been able to put those --
JUROR: Yes, yes.
THE COURT: So that's the questionnaire you filled out.
JUROR: Yup.
THE COURT: We just have a few, maybe more than a few, follow-up questions.
Let me start with your employment. Can you tell us what you do.
JUROR: I do extermination for Ehrlich, Watch All/Ehrlich. I've been doing that for 12 years with the same company.
THE COURT: So you go, what do you do, go out to a site.
JUROR: I go to different address, clients, throughout Massachusetts, Rhode Island, Connecticut, and we provide pest control service for all type of properties.
THE COURT: All types of properties?
JUROR: Yes.
THE COURT: All types of pests?
JUROR: All types of pests. All types of buildings, property, hospitals, university, everything.
THE COURT: We're concerned with people whether the schedule would cause them any financial hardship if they had to be here on a four-day-a-week schedule for three or four months. Would it be okay for you?
JUROR: It would be a financial hardship. I'm not sure how my company deal with the jury duty. I believe they do pay for some amount of time that I'm on it, but I'm not sure about it. It hasn't really got all the information about it.
THE COURT: You haven't talked to the people about it?
JUROR: About my, if my work paid? No, I hadn't.
THE COURT: Are you paid on an hourly basis or a salary?
JUROR: Hourly. Hourly.
THE COURT: So if you don't put in the hours, would they pay you?
JUROR: No. No.
THE COURT: So, just to -- we describe it at Page 5 of Question 10, but once the trial gets started, it would be, the jury would be here Monday through Thursday between 9 and 4.
JUROR: Uh-huh.
THE COURT: If you were otherwise normally working that time, you wouldn't be working obviously and you wouldn't be earning the money.
JUROR: Yeah.
THE COURT: I mean, is that something that you can handle?
JUROR: I believe so.
THE COURT: You can?
JUROR: I believe so. I'm not saying it's going to be easy, but I believe so.
THE COURT: It's up to you.
JUROR: Yup.
THE COURT: Tell me about your use of social media.
JUROR: Social media I use mainly to forecast for work, driving, traffic. I like to go out surfing, so I first catalog the water.
News, not that much. Mostly sports when I'm working. I can be working. Like more to family. And everybody got TVs, so we're going apartment to apartment and that kind of thing.
I'm not a Facebooker or Tweeter. I don't have a Twitter account or none of that.
THE COURT: You said you used -- on Page 11 on the questionnaire you said you use Facebook approximately two or three times a week? Is that what --
JUROR: Yeah, to put pictures of my son so my mom can see him in Puerto Rico. Most like family, you know.
THE COURT: Just on that subject, you were born and raised in Puerto Rico?
JUROR: Yes.
THE COURT: You live here now, and I think you said you've been in your current location for eight years. Is that when you moved to the mainland?
JUROR: No, I moved here in August 9, 2001, and I came directly to the South End in Boston.
THE COURT: So let me ask you to turn to Page 20. And direct your attention to Question 77.
JUROR: Yeah.
THE COURT: And there we asked whether as a result of things you'd seen or read in the news or otherwise had learned, had you formed any opinion about whether the defendant was guilty or not or whether he should get the death penalty or not if he was guilty. And you indicated unsure to each of those.
JUROR: Uh-huh.
THE COURT: Can you tell us why you selected that answer.
JUROR: I'm aware the media's crazy, it happen when I follow the storms, like the snowstorms, they go out of their way, so I believe they do that with everything. So isn't sure, in my opinion that's the reason why you guys are here, if he's guilty or not. By the media, he already is, but I'm not that attached to media or what they said. Lately you see reports about journalists just lying to get some credit and stuff like that. So...
THE COURT: So in a criminal trial, as I'm sure you know, a person is accused of a crime is under the law presumed to be innocent of the crime unless and until the government proves that he's guilty and proves it by evidence at the trial that convinces the jury beyond a reasonable doubt that the person is guilty. Do you understand those principles of the criminal law?
JUROR: Yup.
THE COURT: So what we ask jurors to do is keep an open mind during the presentation of the case, listen to all of the evidence. At the end of the case, when they're deliberating, think about that evidence and see what they have been persuaded about and what perhaps they've not been persuaded about. And if they're convinced beyond a reasonable doubt that the person is guilty, they should find them guilty. And if they're not convinced beyond a reasonable doubt, they should find him not guilty. Do you understand generally --
JUROR: In Puerto Rico, we're run by the same system.
THE COURT: Right. So would you be able to do that if you were a juror?
JUROR: I believe so, yes.
THE COURT: Make a decision either way, depending how you assess the evidence?
JUROR: Yes.
THE COURT: If the government failed to convince you beyond a reasonable doubt on any of the charges, would you be able to find the defendant not guilty of that charge?
JUROR: Yes.
THE COURT: You mentioned principles in Puerto Rico. Have you served on a jury in Puerto Rico?
JUROR: No.
THE COURT: We asked you that about here but we didn't ask you about...
The next page, 21, you indicated you donated some money to the One Fund after the events.
JUROR: Yes, I did. Via text message, one time.
THE COURT: That was fairly close to the events.
JUROR: Within the first month. Within the first month.
THE COURT: Beginning on Page 23 at Line 88 we have a series of questions about your attitude towards the death penalty.
JUROR: 23? Okay.
THE COURT: See Question 88. We asked if you have any views on the death penalty in general, what are they? And you said you're pro-death penalty in general.
JUROR: Yes.
THE COURT: Do you want to say any more about that?
JUROR: When I grew up in Puerto Rico, right now is tear upside down by violence and crime, and the death penalty is a topic that come up very often when these are very high profile case in Puerto Rico. Since I was young, I'm not saying everybody deserve the one to fix society, but there is some cases, either to show, send a message or how awful those cases are, they do deserve the death penalty.
THE COURT: Okay. And the next question, we asked you to place yourself on a numerical scale from 1 to 10, strongly opposed to strongly in favor. And you suggested 7 was appropriate for you.
JUROR: Uh-huh. Is because every case have to be -- not every case should go to death penalty. It's got to be, you know, some specific situation that will -- I won't believe that I will believe that everybody who's guilty deserve the death penalty. That's what I mean with 7.
THE COURT: So let's go to the next page, Question 90. Here, rather than asking you about a number, we asked you to see if there was a statement among the several that were set out there that you thought reflected your view, and you picked statement E. And that says that I'm in favor of the death penalty, but could vote for a sentence of life imprisonment without the possibility of release if I believed that sentence was called for by the facts and the law of the case.
Is that an accurate statement of your --
JUROR: That's an accurate statement.
THE COURT: So even though in general terms for some cases you favor the death penalty, you would be able to consider and perhaps vote for a sentence of life imprisonment if you thought that was the right sentence for the particular case?
JUROR: That's correct.
THE COURT: Let's go to the next page at the bottom, Question 95. Now we're getting particular about the case. This and the next question are both about this case. 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?
JUROR: Yes.
THE COURT: And you said yes?
JUROR: Yes.
THE COURT: And then the next question is the other side of that, in a sense. If you found Mr. Tsarnaev guilty and you decided that life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for that?
JUROR: Yes.
THE COURT: And you said yes?
So you are prepared to go in either direction depending on how you evaluate everything at the end of the case?
JUROR: Yes.
MR. MELLIN: Thank you, your Honor.
Good afternoon, sir. I'm Steve Mellin, one of the prosecutors on the case. Just a few questions about the death penalty. You indicated that, I think you said that not every case deserved the death penalty. Is that right?
JUROR: That's right.
MR. MELLIN: So you've heard the judge's instructions this morning. Do you understand that for the jury to even get to the point where the jury is deciding whether it's life or death, the jury would have found the defendant already guilty. Do you understand that?
JUROR: Yes.
MR. MELLIN: And so the jury would find the defendant guilty and we'd go on to this next stage. And would you, in going to that next stage, would you be able to keep an open mind and carefully consider all of the evidence before you decided what the appropriate punishment would be?
JUROR: This is what I understand. I understand it would be like two type of trial, the trial to see for he's guilty of the cases, and then it would be another trial about the death penalty and each one -- this is my understanding. I might be wrong.
MR. MELLIN: No, you're absolutely right.
JUROR: And each one of those would bring their own evidence and counterparts. So it's like the decision from the guilty doesn't have nothing to do with the decision about the death penalty.
MR. MELLIN: Right. And that's what I was getting at. Just because you found him guilty, would you automatically impose the death penalty, or would you make that decision after you hear all of the evidence?
JUROR: I will make the decision after I hear all of the evidence.
MR. MELLIN: Okay. Finally, when you get -- if the jury were to get to this stage where the jury's deciding life or death, and you believe that the evidence sufficiently out -- or the aggravating evidence sufficiently outweighed the mitigating evidence, so you thought the death penalty was appropriate, would you be able to vote to sentence someone to death?
JUROR: Yes.
MR. MELLIN: All right. Thanks a lot.
MR. BRUCK: Good afternoon.
JUROR: Good afternoon.
MR. BRUCK: My name is David Bruck, and I'm a lawyer and I'm one of Jahar Tsarnaev's attorneys, and I've got a few questions I'd like to ask you too, if that's okay.
JUROR: Sure.
(Ms. Conrad enters courtroom.)
MR. BRUCK: I want to -- I listened carefully what you told Judge O'Toole about your job, but I want to be sure that we're all on the same page. This case could last all through the month of April -- February, March, April, May. I mean, the judge said three to four months, and we haven't even started yet.
If you were on the jury 9 to 4 four days a week and weren't getting paid, could you really make do with that and survive.
JUROR: We talked -- my wife is a little concerned about it too. My wife is a little concerned. And we're just going to take it day by day. I won't consider that my job is an obstacle. I believe I can go by and find a way. If not, we try to reach out to all of you.
MR. BRUCK: You'll try to what?
JUROR: To reach out to you all to discuss it. But right now it hasn't been a problem, and we'll see.
THE COURT: Well, let me just interject. If you're in, you're in.
JUROR: All right.
THE COURT: Okay? There won't be a -- it's not a trial period. Well, it is a trial. That's a bad choice of words. It won't be a test period to see if it's okay for you, and if it isn't, then you can opt out. If we impanel you and you're actually sworn to be a juror, then you would be expected to be here for the duration.
JUROR: I understand.
THE COURT: There isn't a second look-back.
JUROR: I understand.
MR. BRUCK: With that information that you can't take this day by day --
JUROR: Everybody will have inconvenience to be a juror. It would be family, work, bills. Everybody would have any kind of inconvenience.
In my case, if I can go by, I believe so. I have been out of work because of accidents and stuff before, and I have been able to get by. Yes, I would say yes.
MR. BRUCK: Okay. You were being asked, I think it was by the judge, about the death penalty, and you mentioned that Puerto Rico has been turned upside down by violent crime.
JUROR: Yes, it is.
MR. BRUCK: And there were cases, I take it, in which you thought the death penalty was appropriate?
MR. MELLIN: Objection.
MR. BRUCK: I haven't even asked the question yet.
THE COURT: Well, okay, go ahead.
MR. BRUCK: That you said that that affected your thinking about the death penalty?
JUROR: Uh-huh.
MR. BRUCK: And those weren't cases on which you were a juror, those were cases that you read about?
JUROR: Yes. I never have been a juror in Puerto Rico.
MR. BRUCK: Okay. So you sometimes have formed opinions about whether somebody deserves the death penalty just based on the news media and what you've heard --
JUROR: We're talking in Puerto Rico, right?
MR. BRUCK: Yeah.
JUROR: It's 15 years ago. I mean, I've been 15 years in Boston.
MR. BRUCK: Right. I understand.
JUROR: Back then when I was in Puerto Rico, yes, by the type of crime. Sometimes the criminals confess.
MR. BRUCK: Right.
JUROR: And, yeah, that would be when is a lot of, you know, stuff that, wow, how did that happen. Yeah, that would be a good case for the death penalty. And usually the topic just came up in a really controversial way in Puerto Rico.
MR. BRUCK: Okay. Well, a lot of people form opinions about things where they're not on juries. They just hear about them in the press. And what I'm getting at, what I want to ask you about is just in this case, based on understanding that you haven't heard the evidence and you don't know every detail, but just based on what you have heard and what you have read, did you form an opinion about whether this is a case that deserves the death penalty?
JUROR: Since the beginning when this started, since the beginning when this has happened, I'm really don't have the time to really follow cases or the case and stuff like that. But if they guilty, yes, this case, this case I would believe, you know, they deserve it.
MR. BRUCK: And why do you say that?
JUROR: Well, because how it happen, how was carried out, innocent people involve, no regard for life. Probably to send a strong message out there.
Right now we are in a really scary time.
MR. BRUCK: I'm sorry?
JUROR: We are really scary -- times they are scare, and this type of situation are happening more often and often. And I do believe so.
MR. BRUCK: Okay. So of course you haven't heard the evidence. The defendant hasn't been found guilty.
JUROR: No.
MR. BRUCK: But my question is: If he was found guilty, if you were on the jury and found him guilty, as you sit here today, you feel that this is a case where it's important to send a message and impose the death penalty?
JUROR: Uh-huh.
MR. BRUCK: And that's your opinion?
JUROR: I'm sorry, I didn't get it.
MR. MELLIN: Your Honor, objection. It's compound and also confusing. But he's saying "if you're on the jury," but then "as you sit here today."
MR. BRUCK: Okay. I'll break it down. If you're on the jury and you found the defendant guilty of committing the crimes that are charged, do you feel now that that's a case that you -- do you favor the death penalty in this case?
MR. MELLIN: Objection, your Honor. Complete stake-out.
THE COURT: Yeah, it is a stake-out.
MR. BRUCK: Okay. Well, I think I've asked -- the question's been answered really.
Would the -- you said you have an opinion about, that this is a case where there's a need to send a message if the defendant was guilty.
JUROR: If he's guilty, and how I was explain before, like kind of two type of trial, right.
MR. BRUCK: Right.
JUROR: Like to find him guilty, then we should -- got to be found guilty first before we go to the other step.
MR. BRUCK: That's right. Okay. And picture now that you're on the jury and you've gotten to the second part of the trial, he's been found guilty --
JUROR: Uh-huh.
MR. BRUCK: -- you and the rest of the jury, and it's the second trial.
JUROR: Uh-huh.
MR. BRUCK: Now the only choice is the death penalty or life imprisonment. Do you have an opinion about which it should be?
JUROR: I can't -- I can't draw an opinion right now.
MR. BRUCK: And why is that?
JUROR: I don't have everything in front of me.
MR. BRUCK: Okay. But as you sit here today, you've said you do have the opinion that he should -- that this case should receive the death penalty.
MR. MELLIN: Objection. Asked and answered.
THE COURT: Yup, sustained. I think --
MR. BRUCK: Bear with me just a moment.
THE COURT: Yup.
(Discussion off the record.)
MR. BRUCK: What do you mean by "send a message"?
JUROR: What I mean by "send a message"?
MR. BRUCK: Uh-huh.
JUROR: We are the United States, and really we do not tolerate this type of behavior. I've been here 15 years, and I have not even one complaint about United States. It has been very good to me. And if there is people out there that want to come here just to harms --
MR. BRUCK: That want to?
JUROR: Harm people.
MR. BRUCK: Harm people.
JUROR: I'm sorry, my English is not --
MR. BRUCK: No, it's very good. I'm hard of hearing.
JUROR: So if these people like that out there, yes, we should send a message that we have a strong -- I'm looking for the word in my mind -- judicial system.
MR. BRUCK: Uh-huh.
JUROR: And that we know how to handle this.
MR. BRUCK: And by knowing how to handling this, you mean what?
JUROR: Criminal cases like this. Criminal cases where they are confused -- highly publicized, we still can be, you know, fair enough to do a trial.
MR. BRUCK: And to impose the death penalty?
JUROR: I'm sorry?
MR. BRUCK: And to impose the death penalty?
JUROR: If necessary.
MR. BRUCK: Thank you.
THE COURT: All right. Thank you, sir. Just leave the questionnaire, we'll put it back together.
COURT CLERK: Just follow that gentleman right out there.
(The juror was excused.)
COURT CLERK: Juror No. 351.
(Juror 351 enters the courtroom.)
CLERK COPPOLA: Juror 351.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat. Do me a favor, keep your voice up, speak into the mic so everybody around you can hear you, and this is adjustable so you can move it around if you need to.
JUROR: Thank you.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were last here, have you been able to follow my instructions and avoid discussing the merits of the case with anyone?
JUROR: Yes, I have.
THE COURT: And also as much as possible to avoid media accounts?
JUROR: Yes.
THE COURT: They're everywhere, but you can turn away from them if you see them.
JUROR: Minimize them.
THE COURT: Okay. Thank you.
So that's the questionnaire. We're going to follow up on some of the information you gave us.
You're a high school teacher?
JUROR: Yes, I am. I'm sorry, I have a little sore throat.
THE COURT: A little croaky?
But you think -- I think you told us when we asked about whether it would be a hardship on the schedule, you said you thought you could arrange -- with some planning, you could serve, I think is the way you put it.
JUROR: Of course a long trial would be a hardship for anybody. I could make arrangements at school.
It would be somewhat challenging for my family. I have two teenage boys. But I could make arrangements.
It would be a hardship in terms of, you know, colleagues having to cover the school, but it would be possible for me if I had to.
THE COURT: And you understand, I mean, it's kind of a regular business day.
JUROR: Yes.
THE COURT: It's 9 to 4. So in terms of your kids or whatever, I mean you'd be -- in the morning you'd be there.
JUROR: We could work around that. You know, everybody has conflicts. With school vacations coming up, we had plans to go on college visits with my son, but, you know, could figure it out if I had to.
THE COURT: Okay. So we're interested in what people might be writing about or posting. You've written some educational articles. I'm looking here at Page 10.
JUROR: And those were some time ago through my work and some professional development things. But the kinds of things that I've published or posted online, they're all -- you know, one was about President Lincoln. They're very -- not related to current events. They're more related to my field of history that I teach.
THE COURT: And in terms of social media, you do Facebook a little bit. And I guess it says you have a Twitter account, but you don't use it?
JUROR: Yeah. I really am not on Twitter at all on any regular basis. I'm on Facebook. I go online, read some online articles. But I'm not on Twitter or any other platforms.
THE COURT: Okay. So let me ask you to turn to Page 20 --
JUROR: Sure.
THE COURT: -- and Question 77. And in this we asked whether on the basis of things you had seen or heard in the media or otherwise, whether you had formed an opinion about various matters, including A, that the defendant was guilty. And today you said you had formed an opinion based on what you had seen. And as to the questions about a penalty, which are C and D, you said you were unsure.
JUROR: Uh-huh.
THE COURT: Then below that we asked: If you answered yes to any of these questions, as you did, would you be able or unable to set aside that opinion and base your decision about guilt or punishment based solely on the evidence presented to you in the court, and you said you thought you would be able to.
JUROR: Yes.
THE COURT: Can you tell us about that?
JUROR: Yes. Just as a history teacher, I teach about the constitution, and I do think it's important that a case is decided based upon the evidence that's presented in court. So I'm very comfortable with that.
On the other ones that you asked me about --
THE COURT: Let's just stick with that one for a minute.
JUROR: Sure.
THE COURT: Because you did say you had an opinion about it, so the question is --
JUROR: Yes.
THE COURT: -- setting that aside, so compartmentalizing, if you will, as a history teacher, and you mentioned the constitution, you know that any criminal defendant is presumed innocent unless the government proves the person guilty of the charge made by sufficient evidence at the trial that the jury is convinced by that evidence beyond a reasonable doubt. You're familiar with those principles?
JUROR: Yes, absolutely.
THE COURT: So what we ask of jurors is that they pay attention to the evidence presented and the law instructions, of course, and use those sources to make their conclusions in the case. And then if they're convinced beyond a reasonable doubt, they should find the person guilty. But if they're not convinced beyond a reasonable doubt as to any charge, their obligation is to find the person not guilty.
JUROR: Yes.
THE COURT: So I guess that's the question we ask of jurors: If you were in that position of having to make the decision and you are not convinced beyond a reasonable doubt on any of the charges, would you be able to find the defendant not guilty?
JUROR: Based on the evidence presented, yes, I could.
THE COURT: So we're going to come to the penalty questions in a minute.
JUROR: Yes.
THE COURT: I just wanted to ask you, on Page 21, we ask a couple of questions of how you may have been affected by the events as they unfolded.
JUROR: Yes.
THE COURT: Your husband's a dentist?
JUROR: He's a dentist in Watertown.
THE COURT: And you said his office was closed that -- you said for a day. Was it just a day or more than a day?
JUROR: I honestly, I don't remember how many days it was because I was away, I was out of the country, but he was here. So I think it was probably for at least one, probably two days. I could check on that. I don't remember. But his office was closed for a day.
THE COURT: Was he there? In other words, was he closed within the office, or did he not get there?
JUROR: He did not get there.
THE COURT: Were there other people in the office?
JUROR: I believe the office didn't open after the shelter-in-place order was happening.
THE COURT: Okay. Tell me about the answer to 82. You made some contributions to victims funds?
JUROR: Yes, I did. I made a contribution to the One Fund. And there was also -- I didn't write it down, but there was a fundraiser at the gym that I participate in, Fitness Unlimited in Milton. They had a fundraiser because the mother, Mrs. Richards, the mother of one of the victims was a member of the gym. I don't know her personally. But I made a contribution to the fundraiser at the gym.
THE COURT: And your husband has a "Watertown Strong" bumper sticker?
JUROR: Yes. He grew up in Watertown. His business is Watertown. So because of that we have a couple of bumper stickers and things like that.
THE COURT: Does he still have it on his car?
JUROR: I believe he has it on his car. I don't have it on my car. We have one hanging in our house on a bulletin board.
THE COURT: So beginning on Page 23 at question 88, we asked a series of questions to try to get at your views about the death penalty in general and perhaps in particular.
JUROR: Uh-huh.
THE COURT: 88 is a general question: If you had general views, what are they? And you said basically that you used to be opposed to it in all cases, but you think now there might be cases that it is appropriate. Is that -- but it should not be given easily I think is --
JUROR: Yes. That's what I wrote. And that represents certainly my thinking when we were filling this out. I have struggled with it both just on a moral basis, I'm Catholic; and I think even apart from my religions beliefs, I've been opposed to it. And as a historian of sorts, I've seen it misused historically, so there's a lot of suspicion around that.
So think I've believed for a long time that it's unjust and you shouldn't do it. And then when -- apart from this particular case, when other terrible cases come up, I can understand the argument in favor of it. So I really do struggle with it morally.
I understand the other perspective. I don't always agree with it. And thinking more recently, with the possibility of serving on the case, I don't know if I could personally make a decision that was responsible for the death of another person, even if they had committed a horrible crime. So that's the nature of my struggle
THE COURT: Okay. Okay. Yup. So let me just -- I think we're going to explore that a little bit. I just want to note, then, in Question 89 where we asked you to put the number on a scale where you thought you were, you were on the, sort of on the opposed side, but not quite at the extreme.
JUROR: Yeah. I mean, the closer you get I think to serving, the more you have to think more deeply about it.
THE COURT: Would you adjust that? Would you change that?
JUROR: Yes. I would go, I think, to maybe 2. I mean, it's just my honest answer. I'd go to 2, possibly 1. I think my struggle is with the law versus my personally having to make that decision --
THE COURT: Right. Right.
JUROR: -- is what I find challenging.
THE COURT: So if you look at the next question.
JUROR: On the next page?
THE COURT: Yeah. Question 90. Here we asked if you would look at a number of possible statements, and if there was one that described your feelings, if you could select it. And at the time, anyway, you selected "I'm opposed to the death penalty, but I could vote to impose it if I believed that the facts and the law in a particular case called for it."
JUROR: I think I would have to go to B or A on that now, really, thinking on a personal level of being faced with that decision, it would be even harder than I thought on that day.
THE COURT: Well, the difference between B and A is A is more absolute, it says "never," and B says "difficult." Would you be "never" or would you be "difficult"? Or is it just not a question you can answer?
JUROR: It's difficult. I think I would say A at this point, having really thought about my personal moral responsibility, and in the context of my faith, I just think of myself as being a person of peace, and I have difficulty making a decision for death for another human being.
THE COURT: So could you -- one way we ask the question is if you could meaningful consider your voting for the death penalty in an appropriate case?
JUROR: I could consider it. I can't say how I would decided it ultimately. I'm sorry.
THE COURT: Okay.
MR. CHAKRAVARTY: Just a little more. Good morning -- good afternoon, excuse me. I'm Aloke Chakravarty, I'm one of the prosecutors.
JUROR: Yes.
MR. CHAKRAVARTY: I think you've been pretty clear on the reservations --
JUROR: Yes.
MR. CHAKRAVARTY: -- on opposing the death penalty on a personal level. Unfortunately for you, I'm going to ask you a few more questions just to plumb that a little bit more.
JUROR: Sure.
MR. CHAKRAVARTY: Is it the challenge of coming to a decision under the facts and the law that the death penalty is the appropriate punishment that is the reservation for you, or is it the personal implementation of it?
JUROR: I think it's the personal implementation of it.
MR. CHAKRAVARTY: So at the end of the trial, assuming there was a conviction and then the penalty phase where you hear all of the evidence, can you envision a circumstance in which you would say "I vote to put a person to death"?
MS. CLARKE: Objection. Calls for speculation.
THE COURT: Yeah, I think it's a little too pointed.
MR. CHAKRAVARTY: I'm trying to get at whether there's any theoretical possibility. It sounds like there's not even a theoretical possibility that you would put somebody to death, but I don't want to put words in your mouth.
But what we're trying to find out is whether there's a realty possibility that you could actually say "I vote for death."
JUROR: It's a difficult question, and I've never been faced with it.
I think not. I think not.
MR. CHAKRAVARTY: Thank you.
MS. CLARKE: Could I just ask, because it's a hard, hard setting to be in, and I'm sure -- I don't know, do you teach about the constitution and your history class?
JUROR: Uh-huh.
MS. CLARKE: You teach about the jury system, right?
JUROR: Yes.
MS. CLARKE: I'm sorry, my name is Judy Clarke. I'm just a voice coming from the end of the table. I'm one of Mr. Tsarnaev's lawyers.
JUROR: Yes.
MS. CLARKE: And I guess what the question really comes down to is this, because it sounds like you've really sort of struggled with the question of the death penalty. What it really comes down to is 12 jurors have a responsibility of deliberation, right?
JUROR: Yes.
MS. CLARKE: And I guess you'd agree with me that they have a responsibility -- that we have a responsibility in ensuring a fair and impartial jury that a variety of views are represented on the jury. Right?
JUROR: Yes.
MS. CLARKE: So it would be important, I guess, or you tell me if it's important to you, that on the 12-person jury, there be people that are both for and against the death penalty in a capital case?
JUROR: Not being an attorney, I'm not sure.
MS. CLARKE: Just as a citizen.
JUROR: I mean, if you know there's people who absolutely won't ever vote for the death penalty on a case -- this is what you're struggling with? So I don't want to tell you.
MS. CLARKE: That's what we're struggling with. Really what the law requires the jurors to do is listen to the evidence --
JUROR: Yes.
MS. CLARKE: -- evaluate the evidence; and in the case of a capital case, weigh the aggravating evidence against the mitigating evidence, and come to a determination of whether individually -- it's not a collective decision -- individually, your conscience tells you that the death penalty is the appropriate sentence, or that the life imprisonment is the appropriate sentence. That's what it all comes down to.
And no juror ever has to vote to impose a sentence of death. Right?
JUROR: That's correct.
MS. CLARKE: What a juror has to agree to be willing to do is to consider in a meaningful way both options. And what I hear you say is that as a policy matter, as a legislature, or somebody implementing, you know, designing the law, you would say "I don't want to have a death penalty."
JUROR: I think that's the case. I guess what I'm struggling with is I understand all the legal breakdown and logic and division of that, but then ultimately each individual has their moral beliefs and their own conscience, and they have to live with their decision afterwards --
MS. CLARKE: That's right.
JUROR: -- and their values.
And so on a -- speaking for myself, I would find it extraordinarily difficult to be the agent of that sentence of death.
MS. CLARKE: Okay. Thank you very much.
THE COURT: Thank you very much.
(The juror was excused.)
THE COURT: I think it's an appropriate time to take a break. We'll come back at 2.
(Luncheon recess.)
(The Court enters the courtroom at 2:05 p.m.)
THE COURT: I think we're ready to roll.
COURT CLERK: Juror No. 352.
COURT CLERK: Juror No. 352.
(The juror enters the courtroom.)
COURT CLERK: Hi, ma'am. Have a seat over here, please.
Do me a favor, if you could, please. Speak into the mic so everyone can hear you. This is adjustable.
THE COURT: Good afternoon.
JUROR: Hi.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow the instructions to avoid discussion of the case with anybody?
JUROR: Yes.
THE COURT: And also to avoid, as much as you could, contact with media reporting about the case?
JUROR: Yes.
THE COURT: Thank you. We're going to follow up on some of the information you gave us in the questionnaire, and I just wanted to ask you -- this is on page 4, the basic bio information. You spent five years living in Turkey?
JUROR: Yes.
THE COURT: Can you tell us about that.
JUROR: Yup. My husband at the time was working in Turkey, so I moved there. And I went to school there, did a master's degree.
THE COURT: What university?
JUROR: Bogazici University in Istanbul.
THE COURT: Can you spell it?
JUROR: B- -- it's Bosphorus University in English.
THE COURT: Thank you. All right. In English.
Do you speak Turkic?
JUROR: Turkish? Now it's not so good, but then it was better.
THE COURT: Uh-huh. And tell us what you do for employment.
JUROR: I work at an insurance company. I'm the vice president of a group that does quantitative analysis and database systems management.
THE COURT: Okay. And you've done that for, according to this, at least ten years?
JUROR: Yup.
THE COURT: It says that you supervise -- I guess I see it in Question 27. You manage a team of six people?
JUROR: Yes.
THE COURT: At the bottom of page 10 and over to the top of 11 we asked about social media that you might use. On Question 29 at the bottom of page 10 you said you occasionally post about events happening in Boston?
JUROR: Yup.
THE COURT: Did you post about the marathon events?
JUROR: No, just stuff pertaining with the environment.
THE COURT: Oh, I should have read on. "Pertaining to environmental and sustainability." Is that -- so it's a topical area that you post on?
JUROR: Yes.
THE COURT: And Facebook for personal use?
JUROR: Yes.
THE COURT: Do you use it professionally at all?
JUROR: No.
THE COURT: We asked about various relationships you might have with certain categories of people including police. You said you have a friend who's a police officer?
JUROR: Yes.
THE COURT: What police force?
JUROR: It's a town in New Hampshire.
THE COURT: Okay. Would that have any effect on your impartiality as a juror?
JUROR: No.
THE COURT: I see you've served on a couple of state juries?
JUROR: Yes.
THE COURT: One civil, one criminal?
JUROR: Yes.
THE COURT: And in each case the case didn't proceed through to a full verdict. Is that right?
JUROR: Correct.
THE COURT: So let me ask you to turn to page 20, Question 77.
JUROR: Uh-huh.
THE COURT: In this question we asked whether, based on things you'd seen or heard in the media or otherwise, you'd formed an opinion about whether the defendant was guilty or not guilty or should receive the death penalty or should not receive the death penalty, and to each of those questions you checked the box "no."
JUROR: Uh-huh.
THE COURT: Could you tell us about that, why you made that choice?
JUROR: I really haven't followed the case. I didn't pay much attention to it at the time it happened, so I don't really know that much more than the basics of the little blurb description that was on the front page of this. Maybe a few details here and there, but otherwise I just haven't heard much.
THE COURT: You've had experience in trials before. You know that what we ask of jurors is to make their decision based on the evidence presented in the course of the case and not on evidence from other sources outside the evidence.
JUROR: Right.
THE COURT: You didn't get to quite apply that in the other cases because I guess you didn't get to deliberate to a verdict.
JUROR: Correct.
THE COURT: Can you give us your assessment about whether you would be able to do that, make a judgment based solely on the facts as they're presented to you as you understand them in the course of the case?
JUROR: Yes.
THE COURT: You understand that a criminal defendant is presumed innocent unless the government proves that he's guilty by the evidence, and proves that to the satisfaction of the jury that they have no reasonable doubt about that fact?
JUROR: Yes.
THE COURT: And that the burden is always with the government?
JUROR: Yes.
THE COURT: The defendant never has a burden to prove he's not guilty; the government has to prove he is guilty?
JUROR: Yes.
THE COURT: You understand that?
And you could, in your judgment, fairly and faithfully apply those principles?
JUROR: Uh-huh. Yes.
THE COURT: You have to say "yes" for the reporter.
JUROR: Sorry.
THE COURT: What city or town is your office in?
JUROR: Boston.
THE COURT: Were you here during the week of the marathon events? Were you in your office?
JUROR: Yes.
THE COURT: Were you affected by the sheltering in place that occurred at the end of the week when the hunt was going on?
JUROR: Yup, I was here. But I had just come back from a business trip. So my plane got in very late and I slept most of the day, actually.
THE COURT: So you weren't in the office the day that everybody was closed in; you were home?
JUROR: Yeah, I got in at like three in the morning, and then I had already determined I wasn't going to go in. And when I woke up I saw it was closed.
THE COURT: Well, you slept most of the day, so I guess it doesn't matter, but you were in your house for the full day?
JUROR: Yes.
THE COURT: Let me ask you to turn to page 23. Beginning with Question 88, we ask some questions about attitudes towards the death penalty.
JUROR: Uh-huh.
THE COURT: 88 is a general question: If you have any views about the death penalty in general, what are they, and you said, "It's not something to be applied in every case, if ever, that has to do with murder."
Is there anything more you want to add to that or qualify it or anything?
JUROR: Nope.
THE COURT: Okay. We then ask in the next question to circle a number that indicates your opinion, 1 reflecting a belief that the death penalty should never be imposed and a 10 reflecting that it should be imposed whenever the defendant has been convicted of an intentional murder. You chose 1.
And then on the next page we asked if you could find a phrase or a clause that expressed your views, and you chose A that said you're opposed to the death penalty and will never vote to impose it in any case no matter what the facts.
JUROR: Uh-huh.
THE COURT: Is that your position, your view?
JUROR: It is. Since doing this questionnaire I have tried to think could there ever be a circumstance where I would, and I can come up with things, but they're very remote, I suppose.
THE COURT: Like what?
JUROR: Like if someone was convicted of a crime that involved the loss of life and they could somehow outwit the prison system and escape and be considered dangerous, or they were considered a danger to their fellow inmates or prison guards or something.
THE COURT: I see. Okay. Let me ask you to look at the bottom of page 25, Question 95. There we ask 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 said yes.
JUROR: Uh-huh.
THE COURT: That seems to be inconsistent with what you've just told us.
JUROR: Uh-huh.
THE COURT: Can you explain?
JUROR: So my interpretation of that question is despite my opposition to the death penalty, generally speaking, if I were to be convinced that it was the right thing to do, I wouldn't be wishy-washy about then going forward. If that's the right thing to do, it's the right thing to do.
THE COURT: Okay. And how do you reconcile that with the other answers that you would never do it?
JUROR: I can hardly come up with a circumstance where someone would convince me it was the right thing to do.
THE COURT: All right. So you think the condition that's posited in the question is so remote that you don't find it to be really inconsistent with what your other views are?
JUROR: Yes.
THE COURT: Is that a fair understanding?
JUROR: Yes.
THE COURT: Okay.
MR. CHAKRAVARTY: Yes, your Honor. Thank you.
Good afternoon. My name is Aloke Chakravarty. I'm one of the prosecutors in the case.
Let's deal with the death penalty issue first, I guess, and then there are some other questions that I wanted to ask you.
JUROR: Okay.
MR. CHAKRAVARTY: So the theoretical possibility that you would be convinced that the death penalty is appropriate, it sounds like that -- the fact that you had come to that conclusion you think is a remote possibility.
JUROR: Uh-huh. Yes.
MR. CHAKRAVARTY: So the -- you said that you're opposed to it and you can't conceive of -- at the time you filled out the questionnaire you couldn't conceive of the circumstances, but if one of these possibilities that you've suggested -- if the case is not one of those types of cases, could you consider aggravating factors and mitigating factors in some other type of case?
JUROR: I guess the way I view it is it's the -- if you get to the penalty phase of the trial and it's a life-versus-death decision, as far as I understand it, life is the minimum, so by default you start there, then it's the prosecution's job then, or task, to argue that it should be a step up, it should be more. It should be more severe.
So can I listen to that? Could my mind be changed? It's hard for me to consider it, but like I said, in a month I sat and tried to consider circumstances that -- you know, could I really say never? No, I could come up with something. So I can't 100 percent discount it, but I could -- I can't say it's not possible.
MR. CHAKRAVARTY: So at the time you filled this out you hadn't yet gone through that process, so you reacted by saying that you couldn't do it. Can you explain to us the process of why you went back to consider circumstances in which you might be able to do it?
JUROR: I guess it's -- well, it's just one of those questions that you don't dwell on very much. If people ask you, you kind of give a gut reaction, and then the idea that you have to come back and potentially be questioned just triggers thoughts, I guess. So I suppose challenging myself, is this what I really think? Could I not come up with a situation? So...
MR. CHAKRAVARTY: So moving now from the theoretical to the real, if you had come to that conclusion that you had, in your words, I think been persuaded that it is the right decision, you would then have to, of your own volition, regardless of what the rest of the jurors do, cast a vote in order to take the life of somebody.
JUROR: Uh-huh.
MR. CHAKRAVARTY: Do you think at that point you would be able to cast the vote?
JUROR: Yes, if I'm convinced it's the right thing to do, I'm 100 percent sure I would stand by that.
(Pause.)
MR. CHAKRAVARTY: Sorry. I just wanted to confer with my colleague.
So without trying to get a litany of all the situations in which you could be persuaded, is it fair to say that there are only limited circumstances in which you have -- even in the last month that you've been thinking about it, that you could even contemplate that it would be within your realm to be thinking that it would be appropriate?
JUROR: Correct.
MR. CHAKRAVARTY: Okay. Moving on to what you know about the case, and you'd indicated that you have no opinion about the defendant's guilt or -- as to whether the death penalty's appropriate in this case -- is that right? I'm trying to get a sense of -- in your words, about having somebody who's a Bostonian living in the city for the last two years, having been exposed to some media, you're obviously in a professional field, how you've insulated yourself from that media attention in order to be able to have no opinion one way or the other.
JUROR: Yup. I assume a lot of the media coverage must have been right after the incident, so, like, spring of 2013, summer of 2013. At the time I honestly was -- I was taking a night class. I was apartment hunting. I was very overwhelmed with a lot of other stuff. I just didn't watch the news. I never watch local news. I pretty much only watch political commentary-type things. So since then just nothing I watched -- I mean, I've seen -- you log on and you see a headline pop up. I've seen, like, you know, headlines and things said, but I just never read the articles. I just never did.
MR. CHAKRAVARTY: Okay. You had -- there were some answers on the questionnaire that you had just left blank, it seems like you probably had no positive response to.
JUROR: Yeah.
MR. CHAKRAVARTY: One of them is particularly important, Question 10 on page 5, as to whether being a juror on this trial would present any kind of a hardship for you. And it just basically lays out the schedule in the case. On page 75 -- excuse me -- Question 75 which is on page 19, you say that when you received the summons and you had said that the likelihood of serving was so small you weren't going to worry about the length of the trial and any accommodations you had to make at work until there was a real need.
So we're trying to forecast that now because if you do sit, then -- you know, you're either on or you're not. You won't have a chance to kind of see how things play out.
Can you tell us a little bit about what your personal situation is at work or otherwise and whether you feel confident that this would not present a hardship to you?
JUROR: Yes. As long as my nights and my weekends are free, I can, with effort, keep up at work. I don't have any dependents or anything like that that I'm worried about, so...
MR. CHAKRAVARTY: Okay. Thank you.
MR. BRUCK: Good afternoon. My name is David Bruck. I'm one of Jahar Tsarnaev's attorneys, and I've just got a few questions for you, if that's okay.
JUROR: Uh-huh.
MR. BRUCK: I'd like to bring the conversation back, I'm afraid, to the death penalty, which you've already been asked about a lot. You said you've been able to think of situations involving a defendant who was dangerous as an example of a case where, whether you'd want to or not, you could vote for the death penalty. You could imagine that.
I think you appreciate that jurors don't have to have any one set of opinions in order to sit on a jury -- we're supposed to have a cross-section -- but it is necessary that the jurors have an open mind, by which we mean that you not have made up your mind before you get in the jury box.
Now I'd like you to imagine we're in the second phase of the trial, you're on the jury, the defendant has been found guilty. Can you keep an open mind until you've heard the evidence from both sides, the government's evidence favoring the death penalty, the defense evidence that might favor life imprisonment, and then make your decision fairly weighing both positions?
JUROR: Yeah, I would like to think that I most certainly would listen to the arguments.
MR. BRUCK: Okay.
JUROR: I certainly, just naturally, lean towards being quite opposed to the death penalty.
MR. BRUCK: Okay. But the question is whether you could open your mind and be fair-minded to both sides and give the government a fair trial and the defense a fair trial on the issue of the punishment. Could you do that?
JUROR: Yes, listen to the arguments that would argue there are aggravating factors and whatever their reasoning is, why the death penalty would be the correct...
MR. BRUCK: Now, you've listed a couple of examples where you believe the death penalty to be appropriate after spending some time thinking about it. Could there be others that you haven't thought of that could be suggested by the evidence that you would be open to?
JUROR: I can't say that there couldn't be, but it's really, really difficult for me to imagine that.
MR. BRUCK: To imagine now. I guess by definition you can't say what something is if you haven't thought about it. I guess my question is: Are you open-minded to hearing all of the evidence and seeing whether there could be additional reasons to impose the death penalty that made sense to you?
JUROR: I think -- I think I can be, yes.
MR. BRUCK: Okay. And if the evidence convinced you that it was the appropriate thing to do -- I understand it would not be comfortable or easy -- but you could do it?
JUROR: Yes.
MR. BRUCK: And you could return that verdict along with the rest of the jury if that was the decision?
JUROR: Yes.
MR. BRUCK: All right. Thank you.
MR. CHAKRAVARTY: Your Honor, just one brief follow-up?
THE COURT: No, I think we've explored it. Thank you.
(The juror is excused.)
THE COURT: Just give me a minute on the next one. I just have something I have to read.
(Pause.)
THE COURT: Okay. I think we're ready.
COURT CLERK: Okay.
Juror No. 353.
THE COURT: I think I'm going to start directly with the 88 series with this fella.
COURT CLERK: Juror No. 353.
COURT CLERK: Sir, over here, if you would.
(The juror enters the courtroom.)
COURT CLERK: Have a seat. Keep your voice up and speak into the mic.
JUROR: Sure.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here last, have you been able to follow the instructions to avoid talking about the case with anyone?
JUROR: Yeah. A lot of people know I'm here.
THE COURT: Of course people know where you are. But in terms of the substance of the case, you haven't talked about the merits --
JUROR: No.
THE COURT: And have you been able, as best you can, to avoid media coverage of the case?
JUROR: Oh, absolutely.
THE COURT: Eagerly?
That's the questionnaire you filled out right before you when you were here. I'm going to ask you about some of the questions -- some of the answers you gave to some of the questions.
JUROR: Yes, sir.
THE COURT: So would you open it and look at page 23? You can take the clip off if it's easier for you.
JUROR: Okay. I don't have glasses with me, so...
THE COURT: Do you have them in the other room?
JUROR: Nope.
MS. CLARKE: Do you want to borrow some?
JUROR: Please.
THE COURT: They go with your hair.
All right. So beginning with Question 88, there's a series of questions about attitude towards the death penalty that we wanted to follow up with you about. Question 88 asked if you had any views on the death penalty in general, what are they, and you said, "Against death penalty"?
JUROR: Correct.
THE COURT: Do you want to amplify on that in any way?
JUROR: I'm just absolutely against the death penalty. I don't think -- let's see. How can I say this and be totally honest? All right. I don't know how many thousands of rounds were shot at that boat. You couldn't kill the man; I'm not going to kill him.
THE COURT: Okay. Let's go to the next question where we ask you to put yourself on a scale of 1 to 10 where 1 was reflects a belief that the death penalty should never be imposed and 10 reflects a belief that it should be imposed whenever a defendant is convicted of intentional murder, and you selected 1.
JUROR: Correct.
THE COURT: Were you intending to indicate that you think it should never be imposed?
JUROR: I think it should never be imposed.
THE COURT: Question 90 on the next page, here, rather than ask you to put in numbers, we asked you to look at a number of different statements and see if there was one that expressed your views towards the death penalty in a case of somebody convicted of a murder. And I believe you selected A, which is, "I'm opposed to the death penalty and will never vote to impose it in any case no matter what the facts."
JUROR: That's the fact.
THE COURT: That's your view?
JUROR: Yes.
THE COURT: So it's a rather -- I say this for information and not because I'm being critical. I just want to know. It's a rather inflexible position. Is that it?
JUROR: Absolutely.
THE COURT: Do I need to go any further?
MS. CLARKE: I don't think so, your Honor. Thank you.
THE COURT: All right. Thank you.
(The juror is excused.)
COURT CLERK: Juror No. 354.
COURT CLERK: Juror No. 354.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, please.
JUROR: I need my glasses.
THE COURT: Perhaps we could advise them before they come into the courtroom? Perhaps Jim can advise them if they need glasses, they should bring them in.
COURT CLERK: Keep your voice up, speak into the mic so everyone around the table can hear you. This is adjustable, so adjust it accordingly.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thank you for your patience.
MS. CLARKE: Don't go there.
JUROR: Yeah.
THE COURT: You did get a free lunch.
Anyway...
JUROR: If you call that free.
(Laughter.)
THE COURT: Since you were here last, have you been able to follow the instruction not to discuss the case except that you have to report here?
JUROR: Yes.
THE COURT: You have to answer verbally so the reporter can take down your words. Okay?
JUROR: Shakes head.
THE COURT: And also try to avoid any media reporting of --
JUROR: Yeah, I don't watch the news. There's nothing good.
THE COURT: So that's the questionnaire that you filled out. We're going to follow up on some of the answers by having a few more questions for you.
Let's start with your employment. What do you do?
JUROR: I'm a production associate for EMC. We do data storage up in Franklin.
THE COURT: Franklin? And what's a production associate do?
JUROR: Okay. My job -- I work for the non-standard organization. And you know what a data storage unit looks like, like the size of a refrigerator. It's full of drives. And my department -- when a customer wants to upgrade from a 146 drive to a 300-gig drive or a terabyte or something like that, we buy the old drives back, transfer all their information onto the new drives, and then we erase all their information off the old drives so that we can resell them. If the drive decides to become -- if we can break it down and use the raw to build a different-size drive, that's what we do so we're not constantly buying new material. We're recycling, so to speak, so...
THE COURT: So to put it in --
JUROR: Layman's terms?
THE COURT: -- simple terms, you're dealing with the hardware rather than the software --
JUROR: Correct.
THE COURT: -- in a computer?
JUROR: Yes.
THE COURT: Are you a manufacturing facility or --
JUROR: Yes.
THE COURT: Okay.
JUROR: Yeah.
THE COURT: On page 5 in Question 10 we asked people whether serving on this case on the schedule that we outlined, which is basically Monday through Thursday, nine to four, would be a serious hardship. It's a difficulty for everybody to arrange things, but one of the things we sometimes hear is that people would have difficulty financially because of the impact on their job and everything. Would that have an --
JUROR: On our timesheets we have "jury time," so my boss knows. When I first got the letter I showed it to him and everything and I said, "I don't know what's going on. I don't know what case it is," what have you, because I hadn't had regular jury duty in over 20 years, and then, bam. So I showed him that.
So I assume as long as it's a federal or state thing, they're going to let me and pay me for as long as I go. I live alone, so...
THE COURT: Okay. But you think based on that conversation that you're okay in terms of their continuing to pay you while you're --
JUROR: Yeah, either that or I don't know if they would put me on long-term or short-term disability -- well, not call it "disability," but...
THE COURT: Right. Right.
You don't use social media?
JUROR: Nope. No Facebook. I have a phone, but I use it Internet-wise, you know, navigation. No Facebook, no Myspace, no Match.com, no nothing.
THE COURT: You seem to know all the names.
JUROR: Well, on my phone.
THE COURT: Okay.
JUROR: I know what they are, but...
THE COURT: So we asked about relationships you might have with various kinds of -- categories of -- like police officers.
JUROR: Yeah.
THE COURT: And you have a cousin, an uncle --
JUROR: And my father.
THE COURT: -- and your father.
I guess your father is retired. Is that right?
JUROR: Yeah, my father was a special on the Easton Police Department. He's retired. He was also on the MBTA. And then my uncle Gibby, my father's brother, was on the drug unit, retired, Boston P.D., and my cousin Kevin is currently on the K-9 bomb squad.
THE COURT: Let's talk about the two retired ones.
JUROR: They don't know anything about this right now.
THE COURT: Right. Your uncle and your father are both retired. Your uncle -- are they brothers?
JUROR: Yes.
THE COURT: Your uncle was with the Boston --
JUROR: Yes.
THE COURT: -- drug unit?
JUROR: Yup.
THE COURT: When did he retire, do you know?
JUROR: Maybe '96.
THE COURT: Oh, it's been quite a while.
JUROR: Yes. Oh, yeah, yeah.
THE COURT: And your father, he was a special officer?
JUROR: Yeah. Auxiliary police, Easton.
THE COURT: He had another job?
JUROR: Yeah, he was a bus driver for the MBTA.
THE COURT: Okay. All right. And what period of time was he a special officer in Easton?
JUROR: From a minimum 1977 to sometime in the '90s.
THE COURT: Okay. Now, your cousin -- your first cousin --
JUROR: Kevin. Yes, Gibby's -- Gil's son.
THE COURT: Right. So he is currently a Boston police officer? And how long has he been on the Boston --
JUROR: He started in the housing authority at 18 and he is now 53.
THE COURT: So he was a housing --
JUROR: He went from the housing authority --
THE COURT: Police.
JUROR: Yup. And then --
THE COURT: He moved --
JUROR: -- he moved into patrolman, and then he was in -- I think he may have been in the computer police or whatever, cyber whatever, and then he got the option to go on K-9 bomb squad.
THE COURT: How long has he been doing that?
JUROR: I want to say five years maybe.
THE COURT: Since he was on the K-9 bomb squad, was he involved in the marathon events?
JUROR: I honestly don't know, but I think he was there the next year when the next marathon happened.
THE COURT: 2014?
JUROR: Yes.
THE COURT: As just part of the security precaution?
JUROR: Correct, yeah.
THE COURT: But you don't know if he was involved in 2013?
JUROR: I honestly don't know. I couldn't tell you.
THE COURT: Okay. How often do you see him?
JUROR: Maybe once a year at family functions or something. I see my uncle when I go up to Maine twice a year, maybe.
THE COURT: He lives up in Maine?
JUROR: He lives in West Roxbury, but they have a camp up in Maine, so...
THE COURT: So let me ask you to turn to page 20, Paragraph -- I'm sorry, Question 77 at the top. In this question we asked based on things that you'd seen or read in the media or otherwise came to you from any other source, had you formed an opinion whether -- that the defendant was guilty or not guilty or that he should receive the death penalty or not, and to each of those you selected the box "unsure."
Could you tell us about that?
JUROR: I only know what was on the media from what little media I did see. You know, like when Boston was closed down and the hunt went on and everything like that. And I know that if I'm on this, I have to go by what the evidence is, not by what hearsay there is through the media. Is that --
THE COURT: So you feel that if you were a juror in the case, you could pay attention to the evidence that's presented in the course of the case and focus your attention on that and make any decision you had to make based only on what you heard in the course of the case?
JUROR: That's what I have to do.
THE COURT: The question is: Can you do it?
JUROR: Yeah, I assume I can because that's what I have to do.
THE COURT: Okay. You understand that in any criminal prosecution the person accused is presumed to be innocent of what he's charged with --
JUROR: Right, until proven guilty.
THE COURT: -- unless the government proves him guilty by the evidence at trial and proves it beyond a reasonable doubt. So that the burden is always on the government to prove that a person is guilty beyond a reasonable doubt. A defendant doesn't have any burden to prove he's not guilty. The burden is always with the government alone.
Do you understand that?
JUROR: Uh-huh.
THE COURT: Okay. Do you have any difficulty in -- if you were a juror -- listening to the evidence, and if you concluded the government hadn't proved its case on any of the counts, would you be able to find the defendant not guilty?
JUROR: I would assume so. Yes.
THE COURT: Why? Why do you assume so?
JUROR: Well, if you don't -- if you can't prove it, then he's innocent. If you can prove it, then he's guilty.
THE COURT: Okay. And you think you could faithfully and fairly apply those principles?
JUROR: To the best of my ability.
THE COURT: Okay. Do you remember the events -- do you remember paying attention to the events when they happened?
JUROR: I'm not -- all I know is like when it happened -- like my company sponsors a lot of the marathon stuff because it starts in Hopkinton, and that's where our corporate is.
THE COURT: Right.
JUROR: Other than that, you know, I know they close down corporate for the race. And then there was the explosion and the guy that was the hero with the cowboy hat. And that's about -- like I said, I don't really watch the news because there's nothing -- if I watch the news, it's for the weather.
THE COURT: Okay. You mentioned that the company sponsored some marathon-related events. Did you participate in any of those?
JUROR: Nothing. I'm not a big sports person.
THE COURT: If you'd turn to 23, page 23. Beginning with Question 88 we asked a series of questions about attitudes towards the death penalty, and 88 itself is a general question, do you have any general views, and you said "none." Is that accurate? Do you have any general views about --
JUROR: Yeah. I mean, I'm not against it; I'm not for it. But, you know, if the crime fits the penalty, if that's what it is, then that's what it is.
THE COURT: In the next question we asked you to put yourself on a scale from 1 to 10 where 1 reflected a belief that the death penalty should never be imposed and 10 reflected a belief it should be imposed whenever the defendant's been convicted of intentional murder. And you selected 9, which is fairly high up the scale.
Can you tell us what you were thinking when you made that choice?
JUROR: If he's been convicted on -- like if he committed murder on purpose and the crime is the death penalty, then...
THE COURT: These are matters that will be explained in much greater detail if you're a juror in the case, but you should take it for the present purposes that a person can't be convicted of murder without proof beyond a reasonable doubt that he has acted intentionally, okay?
JUROR: Right.
THE COURT: Okay. That's an element of the offense of murder. So if you've been convicted of murder, it's an intentional murder, okay?
JUROR: Okay.
THE COURT: Necessarily, all right?
So when we ask the death penalty, or any penalty question, we've already established as a premise that somebody is guilty -- is eligible for it because he is guilty of an intentional murder, okay?
JUROR: Okay.
THE COURT: And then the question is for such a person is the death penalty appropriate or is life without the possibility of release appropriate. That will be the question this jury will face, okay? You may not have understood that before because there's no reason for you to have known that, but I want you to take that as a given. He's been convicted of an intentional murder if you're talking about what penalty to impose, okay?
JUROR: Okay.
THE COURT: I don't know whether that affects the answers you gave on 88 or 89.
JUROR: No.
THE COURT: Do you think it would change?
JUROR: I don't think so.
THE COURT: Okay. Keeping that still in mind, look at page 24 and Question 90. There, rather than asking you to pick a number on a scale, we asked you to see if one of the statements listed below described your feelings in a case where someone had been proved guilty of murder, and you selected D, "I'm not for or against the death penalty. I could vote to impose it or I could vote to impose a sentence of life imprisonment without the possibility of release, whichever I believed was called for by the facts and the law in the case."
That was your selection then?
JUROR: Right. Yup.
THE COURT: Do you think -- is that what best describes your view of the appropriateness of a death penalty or not?
JUROR: I don't know.
THE COURT: If you want to take your time to read through the whole question.
JUROR: Because I know there was one question that I had a hard time dealing with because they all sounded like the same thing.
THE COURT: All right. Why don't you take your time and just read through it for a minute.
(The juror complies.)
JUROR: I think I should have picked C.
THE COURT: C? Okay. C says, "I'm opposed to the death penalty" --
JUROR: Wait a minute. Okay. Sorry, go ahead.
THE COURT: Is that the one? The one right above what you circled?
(Pause.)
JUROR: No, I think I'll stick with D. Yeah.
THE COURT: Okay? You've reviewed all of them again, all the way down to G and H?
(Pause.)
JUROR: I'll stick with D.
THE COURT: All right. Let's go to the next page. Question 95 at the bottom 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." Is that your view?
JUROR: Yeah, I could.
THE COURT: Do you have some hesitancy about it?
JUROR: If he was guilty -- now, when you say "you" --
THE COURT: You.
JUROR: Oh, myself; not the jury?
THE COURT: This is about you personally. If you listen to the evidence and at the end of the evidence, having found him guilty, of course, and then after the penalty phase as I described it to you, you considered it and you thought the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty?
JUROR: I believe so.
THE COURT: Okay. But you say that with some reservation, or am I reading you wrong?
JUROR: I feel like there's a wrong answer, but I don't --
THE COURT: There is no right or wrong answer. Don't try to second-guess the system here. We just want what you think. That's the right answer.
JUROR: I think I could.
THE COURT: Okay. But -- and so as I say, you say it with some tone of voice that suggested maybe you have a reservation, and all I want to know is if you do, what is it? What is the reservation?
JUROR: I don't know. I don't know what the reservation is, if there is one.
THE COURT: Is it that you simply can't predict how you'll feel under some future circumstance, or is it that you really aren't that big a fan of the death penalty?
JUROR: It's not that I'm not a fan of the death penalty; it's I would have to see how everything lays out evidence-wise and what have you.
THE COURT: Okay. Let's go to the top of the next page, Question 96. "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?" and you checked "yes" there as well.
Is that your --
JUROR: Yup.
THE COURT: Do you have any reservation about that?
JUROR: If that's what has been decided, then that's what it is.
THE COURT: Well, it's what you would decide, is what we're asking. If you -- well, if you -- as you see in the first line, if you decided that life imprisonment without the possibility of release was the appropriate punishment, that means you, if you had decided that, would you be able to conscientiously vote for it?
JUROR: Yes.
MR. CHAKRAVARTY: Just a brief follow-up?
Trying to figure out what your views are on the death penalty is the reason we ask these questions so many ways, obviously. So -- excuse me one minute. I'm sorry. My colleague reminded me to introduce myself.
JUROR: Oh.
MR. CHAKRAVARTY: I'm Aloke Chakravarty, one of the prosecutors.
So on 89 there's a spectrum. The judge asked you if you thought that the 9 on that spectrum accurately reflected your view, and that seems a little bit at odds with -- I think you were wavering between C and D, which is you're opposed to the death penalty, or just kind of neutral, 5.
What did you mean when you circled 9? Like, what were you trying to convey to us?
JUROR: I don't know. I just thought it was a little less stronger than 10, you know? I don't know how to explain it.
MR. CHAKRAVARTY: So -- but you don't have any opposition to the death penalty?
JUROR: Uh-uh.
MR. CHAKRAVARTY: And you're not for it?
JUROR: Correct.
MR. CHAKRAVARTY: But you will impose it if you think it is warranted by the facts and the law?
JUROR: Yes.
MR. CHAKRAVARTY: And if it came down to you making the decision as to "Can I" -- every juror has to make their own choice as to whether the death penalty is appropriate, and then getting to that stage in the trial you would have to sign the vote slip saying, "Yes, I support this," you have confidence you can do that?
JUROR: If the evidence proves it.
MR. CHAKRAVARTY: Okay. And you would consider both the aggravating factors and the mitigating factors in deciding that?
JUROR: Okay. How did --
MR. CHAKRAVARTY: Let me break that down for you.
JUROR: Thank you.
MR. CHAKRAVARTY: So as the judge suggested, at this phase of the trial the defendant would already have been found guilty, and then there's a proceeding on showing factors that show why the death penalty might be appropriate in a case, and then mitigating factors, if the defense chooses to put those on, as to why it's not appropriate in a specific case. And then you would have to weigh those. You would have to decide which ones apply and then weigh whether one outweighs the other. And if you decided that the factors weighing in favor of the death penalty were appropriate, that's the only time that you would have to vote for the death penalty. You never have to vote for the death penalty.
JUROR: Okay.
MR. CHAKRAVARTY: But you evidenced some hesitation in some of these questions before, so I'm trying to get a sense of why you're confident that you would be able to vote for the death penalty.
JUROR: I don't know. It just -- that's just how I feel.
MR. CHAKRAVARTY: Okay. A quick question about your family that's on the police force.
JUROR: Yup.
MR. CHAKRAVARTY: So there's going to be police officers in this case who testify. Are you going to favor their testimony over other people's testimony?
JUROR: I have to go by what the evidence shows, so no.
MR. CHAKRAVARTY: Okay. And I think that's how you answered on the questionnaire. There was a question as to whether you would give more weight to one or the other. Would the fact that police officers would be testifying -- would that affect your ability to be fair and impartial in this case?
JUROR: No.
MR. CHAKRAVARTY: The fact that there was a police officer who was killed as part of this case, does that impact your ability to assess the evidence?
JUROR: No.
MR. CHAKRAVARTY: Thank you.
MS. CONRAD: Good afternoon, sir. My name is Miriam Conrad. I'm one of Mr. Tsarnaev's lawyers.
JUROR: How you doing?
MS. CONRAD: I appreciate your understanding of the concepts of needing to be impartial, but part of what we're trying to do here is to find out what's in your mind and what's in your heart. And let me ask you this: Before you ever knew you might be a juror in this case, did you have any opinion one way or another about whether Mr. Tsarnaev was guilty?
JUROR: No, I just know what I saw on TV.
MS. CONRAD: Okay. And what did you see on TV?
JUROR: Just the hunting down of -- you know, when they come up -- him being in the boat, and then you hear about the MIT officer and some other shootout when his brother was killed.
MS. CONRAD: So when you saw that on TV, did you draw from that that he was guilty?
JUROR: No, I just -- I don't know what he was, you know.
MS. CONRAD: Well, did you think it wasn't true?
JUROR: No.
MS. CONRAD: Did you think it was true?
JUROR: I didn't know.
MS. CONRAD: Did you ever discuss it with anybody?
JUROR: Nope.
MS. CONRAD: And where were you on the day of the bombing? I'm sorry if the judge already asked you that. I apologize.
JUROR: I believe I was at work.
MS. CONRAD: And you said that EMC, the headquarters in Hopkinton, shuts down, right?
JUROR: Yes.
MS. CONRAD: So your office doesn't shut down too?
JUROR: No, I'm in manufacturing. I'm in a totally different building. I'm in Franklin.
MS. CONRAD: Okay. But I'm still asking whether -- because the headquarters shuts down, whether your office shuts down.
JUROR: No.
MS. CONRAD: Do you remember when and how you learned about the bombing?
JUROR: I think it was near the end of the day, someone on their phone said that there was a -- excuse me -- a bombing at the marathon.
MS. CONRAD: And did you watch any of the TV footage that day?
JUROR: Just when I'm going through and, you know, the news came on with the quick blips and stuff like that.
MS. CONRAD: So you don't recall watching the TV news that evening about --
JUROR: No. Like I said, I really don't watch the news.
MS. CONRAD: And what about during the manhunt on -- you mentioned something about finding him in the boat. Do you remember where you were when you found out about that?
JUROR: I don't recall where I was, but I know I was supposed to go up to Wellesley on a -- that Friday, but I couldn't go because the town was closed up.
MR. CHAKRAVARTY: Your Honor, we're satisfied.
MS. CONRAD: I think we have an agreement.
THE COURT: All right. Thank you. That's it. Thank you.
(The juror is excused.)
MS. CONRAD: Your Honor, before he's excused, can we raise something at sidebar? Before he leaves.
THE COURT: Sidebar mode.
MR. DOREAU: All right. Audio and video cut.
(Discussion at sidebar and out of the hearing of the public:)
MS. CONRAD: So I just wanted to check with the Court, we had reached an agreement on this juror, but since I know your Honor actually doesn't, of course, need to accept our agreement --
THE COURT: No. No, if we interrupt like that, that's a sign that it's accepted.
MS. CONRAD: Okay. I just wanted to make sure that we didn't --
THE COURT: No. No. No.
MS. CONRAD: Thank you.
THE COURT: That applied principally to the overnights where I wanted to look at things. I'd been given a string of numbers --
MS. CONRAD: Sure.
THE COURT: -- I just wanted to check --
MS. CONRAD: I just wanted to make sure there weren't things that I didn't develop.
THE COURT: No. No.
MS. CONRAD: Okay. Good. I wanted to make sure we're all on the same page, as it were.
While we're at sidebar mode, this next person --
MS. CLARKE: Is the next one 351?
MS. CONRAD: Yes, it's the next one.
MS. CLARKE: Do you want me to --
MS. CONRAD: Go ahead. You go ahead and then I'll tell you if you're wrong.
(Laughter.)
MS. CLARKE: Your Honor, 355 is a lawyer, and we don't think it's disqualifying, but we want to give the Court a heads-up that he at some point applied for a job with the FPD office. Just wanted the Court to know that.
THE COURT: What's the "some time"?
MS. CLARKE: Ms. Conrad wasn't quite clear about that.
MS. CONRAD: So he applied most recently in 2014 for a most-recent opening. I did not interview him. And I believe -- I know he has applied in the past, but I don't know the precise dates. I did email my secretary and ask her to check. And I do not recall whether I interviewed him on those occasions. And that's what I asked her to --
MS. CLARKE: I thought it was worth the Court inquiring.
THE COURT: You would know him if you saw him?
MS. CONRAD: I have no mental image of what he looks like and --
THE COURT: No, but I mean, if he came in, that might --
MS. CONRAD: I hope so. But at my advanced age, maybe, maybe not.
THE COURT: Okay.
MS. CONRAD: I just -- if you want to just hold on a second I'll tell you --
THE COURT: I think he said in his form that he knew federal people.
MS. CLARKE: We just wanted you to know that he applied for a job so you could inquire.
THE COURT: Fine. I appreciate it.
So we could go ahead?
MS. CONRAD: Can I tell you one more thing? There's a different juror coming up we have social media on and your Honor wanted to be alerted to that.
THE COURT: What number?
MS. CONRAD: The number is 359. I mean, I can do it now, I can do it later, but since we're in sidebar mode now I thought I would seize the moment.
THE COURT: Could you give me a brief summary of it?
MS. CONRAD: Yes. So this would be very -- believe it or not this will be very brief. So, first of all, she mentions on her questionnaire that she had written a blog post the day after the marathon bombing. We have that blog post in which she describes having attended the marathon, I think since she was six years old, and talks about being angry and furious and devastated by the events. I have a copy of that.
She also pretty much live tweeted on her Twitter feed throughout the events of the marathon and also pretty much minute by minute during the manhunt and the events in Watertown. And I have copies of just those select portions. Just an example, on the day of the bombing, "Hurting for my city on what should be a day of celebration. Thank you first responders and those who are helping."
So I can pass these up. I have copies for the Court.
THE COURT: So what do you propose? She said in question -- this wasn't concealed. She said --
MS. CONRAD: Right. But I'm planning --
THE COURT: So I mean, she can be asked to confirm it, but I don't know how much that adds. Do you intend to ask her about the content of it?
MS. CONRAD: I -- I don't know if I'm the one -- yes, is the short answer. I mean, the content of it expresses her emotions about it, and it's highly relevant.
THE COURT: But the document may speak for itself, is what I'm getting at. I guess the question would be: "You were very emotional then."
MS. CONRAD: Right.
THE COURT: "Has it subsided to the point where you could be fair-minded or is it still affecting you?"
MS. CONRAD: I'm not sure I would ask it that way, but yes.
THE COURT: I'm sure you wouldn't, actually.
(Laughter.)
THE COURT: But in other words, just in the interest of time, I don't want to spend a lot of time having her read from the document.
MS. CONRAD: No, no, I'm not going to do that. But I do want to point out she didn't say anything about the Twitter posts, and the Twitter posts may be different, just in terms of more reflecting that she was glued to the TV.
THE COURT: The germane point is if she remains in a condition she cannot be fair-minded. That is the germane point.
MS. CONRAD: So do you want me to --
THE COURT: Yeah. So if you want to hand it to me now we'll get to it. But I just want to make sure we get efficient in your questioning.
MS. CONRAD: I'm not going to read everything.
THE COURT: We still have a ways to go.
I guess we're ready for Juror No. 355.
MR. DOREAU: Audio and video on.