3.Individual Voir Dire — Capital Jury Selection (Part 2)
477 lines(In open court:)
COURT CLERK: Juror No. 355.
COURT CLERK: Juror 355.
(The juror enters the courtroom.)
COURT CLERK: Sir, if you would, over here, please. Speak into the mic so everyone around the table can hear you. And this is adjustable, so if you need to move it.
THE COURT: Good afternoon.
JUROR: Good afternoon, your Honor.
THE COURT: Since you were last here have you been able to follow the instructions not to discuss the case on the merits or --
JUROR: I have.
THE COURT: And also to try to avoid any exposure to media accounts?
JUROR: The best I can.
THE COURT: They're there, but you have to put them aside.
So we're going to follow up on some of the areas touched on by the questionnaire, and of course we'll start with your occupation, which is attorney. And you work for the Committee for Public Counsel Services?
JUROR: Correct.
THE COURT: And you've been doing that for a while?
JUROR: For a while, yes.
THE COURT: A little over ten years, maybe?
JUROR: At the committee, yes. I started actually at New Hampshire back in 1992. So I've been a criminal defense lawyer for over 22 years.
THE COURT: When you were in private practice, your practice was criminal defense?
JUROR: Yes, as --
THE COURT: Has it changed in any way?
JUROR: Yeah, 99.9 percent, and I was still taking mostly court-appointed.
THE COURT: Do you have any feeling that that would make it difficult for you to be an impartial juror in a criminal case?
JUROR: I don't think so. I actually think it makes it a little bit easier because I look at every case about what can be proved in court, what are the facts.
THE COURT: Have you had any particular concentration in your practice in, I guess, what courts you practice in or anything like that?
JUROR: District and superior courts in Massachusetts and in New Hampshire back when I was up there, but...
THE COURT: Are you a member of the bar of this court? Have you practiced --
JUROR: No, I've never practiced in federal court.
THE COURT: Just working through the -- well, wait a minute. Let me just see if -- just working through, somewhat in order, and you can follow if you want -- this is the bottom of page 10 and top of page 11 -- in Questions 29 and 30 we asked you about blogging or social media. You said you blogged last year when you were training to run the 2014 Boston Marathon and to fund-raise for charity. What was the charity?
JUROR: It was a Framingham charity, the Boys and Girls Club.
THE COURT: It wasn't a marathon-related charity?
JUROR: No, it was a part of --
THE COURT: The One Fund or anything like that?
JUROR: No, what -- the way I got my bib is that the Town of Framingham had, I think, 20 bibs given to them by the Boston Marathon, and basically picked numbers out of a hat. And what you had to do was raise charity [sic] for a local Framingham charity. And they had a list of six and they -- we got to choose which one.
THE COURT: And what were you blogging; what kinds of things?
JUROR: My ups and downs of trying to go from running five miles at top to trying to finish a marathon. Nothing political.
THE COURT: Facebook?
JUROR: I have my own Facebook.
THE COURT: How do you use it?
JUROR: Mostly to keep track of my friends' kids and whatnot. I post very infrequently, and if I do, it's usually a picture of my kids or about a disastrous running.
THE COURT: It looks like you served as a juror in Middlesex?
JUROR: I did.
THE COURT: That was a civil workers' comp case?
JUROR: Yes.
THE COURT: When was that?
JUROR: Four years ago now? Four and a half maybe? It was a two-week-long case.
THE COURT: So if you'd turn to page 20, I'd like you to look at Question 77, and that's a question where we ask if you'd seen or read things in the news media or else-wise, had you formed an opinion prior to filling out the questionnaire that the defendant was guilty or not guilty or should receive the death penalty or should not, and to each of those you selected the option "unsure." Can you tell us about that?
JUROR: Sure. I mean, it's mostly based upon my training and experience. I think, like everybody in the courtroom here, I know what I see in the papers and in the media isn't necessarily entirely accurate. And while it certainly was constant for a time, I know and I can wait until I see what the actual facts are before making up my mind. I mean, I do that in my own cases. I mean, reading a police report isn't necessarily what makes me decide how I feel about the case.
THE COURT: And I guess it was unnecessary, I guess in the way you answered the first question, but in the second part of that question it said if you'd answered yes, which you hadn't done, would you be able or unable to set aside any opinion and base your decision on the -- based solely on the evidence in the case. You checked "able."
JUROR: I thought it was a good expression of how I felt about everything.
THE COURT: The next page, Question 82, we asked if people had participated in any what we might call support activities after the fact, and you might have bought some merchandise or something, maybe Boston Strong kinds of things?
JUROR: Yeah, I'm sure. There was another marathon I did in October that I think there might be a Boston Strong logo on the shirt they gave out.
THE COURT: October 2014?
JUROR: Yes.
THE COURT: Question 84, you know some of the federal defenders, including Ms. Conrad who's seated at the table?
JUROR: I've met Ms. Conrad once, I think at a function, like a talk or something. I know one of their recent employees who just recently left the office, Mr. Mirhashem.
THE COURT: And you also include Tim Watkins?
JUROR: Yes.
THE COURT: How do you know Tim?
JUROR: Again, I met him at a function or two.
THE COURT: Met, not --
JUROR: Met.
THE COURT: -- socialize with or --
JUROR: I would not call it that.
THE COURT: I'm working my way through --
JUROR: Sure. My handwriting is atrocious. I can interpret it if you want.
THE COURT: No, that's okay.
So beginning at page 23, Question 88, we asked questions related to your views about the death penalty. So let's -- I'd like to run through those.
JUROR: Sure.
THE COURT: Question 88 is if you have any views on the death penalty in general, what are they. You said, "It should be the rarest of punishments. It is much too prevalent in the country." And you preface that by saying, "Since it is legal." I guess you're accepting as a proposition that it's legal?
JUROR: Yes.
THE COURT: Although you might have some view that it shouldn't be?
JUROR: I mean, if I was asked to vote on it, I would probably vote against it because of my belief that it is overused.
THE COURT: Well, as to the opinion that -- or the view that it should be the rarest and is too prevalent, do you want to amplify on that at all?
JUROR: I think we are -- we hear quite often about people who are on death row who are later exonerated and just how some states have higher death penalty conviction rates than others; and additionally, the racial and economic disparity on who gets the death penalty. And for a lot of those reasons, I just think it's overused.
THE COURT: Have you ever been personally involved as a lawyer in a death penalty case?
JUROR: I haven't.
THE COURT: Question 89 we asked you to put yourself on a scale from 1 to 10, 1 being it should never be imposed and 10 being it should be imposed whenever someone's convicted of murder. You selected 2. Do you want to amplify on that?
JUROR: Sure. I did a -- when I found out I was going to be in this pool, I did a lot of soul-searching, and I came to the conclusion that because I believe it should be in the most rarest of situations, that's why I'm down at that end, but I could foresee situations where I might consider it appropriate.
THE COURT: Okay. Next page, Question 90, we set forth a series of statements of different attitudes towards the death penalty and we asked you if you thought there was one that represented your views. You selected C. It says you're opposed to the death penalty but could vote to impose it if you believed that the facts and the law in a particular case called for it.
Is that an accurate statement of your --
JUROR: I think that's an accurate statement.
THE COURT: So you can envision there could be a case where you could vote in favor of the death penalty?
JUROR: After a lot of thought and soul-searching, I think I could.
THE COURT: Let's go down to the bottom of page 25. Question 95 we asked kind of focusing on this case if you found this defendant guilty and you decided that the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty. You selected "I'm not sure," and added in your own words, "I cannot possibility prejudge his guilt or potential punishment at this stage." And you gave essentially the same answer for the reciprocal question on the next page about whether you could conscientiously vote for life imprisonment.
Do you want to tell us why you answered those questions that way?
JUROR: Sure. Without having the facts in front of me or, frankly, the instructions from the Court, I find it very difficult to make that far of a prediction.
THE COURT: In part, the question may have been getting at whether in Question 95, for example, if you had intellectually concluded the death penalty was appropriate, could you actually vote for it; in other words, would you have any moral or other scruple about voting for it even if you were convinced intellectually that there was a case for it to be made?
JUROR: I find it very difficult to answer that without hearing everything.
THE COURT: Okay.
MR. MELLIN: Thank you, your Honor.
Good afternoon, sir. I'm Steve Mellin. I'm one of the prosecutors.
Let me just kind of go right where Judge O'Toole just cut off, which was -- the question was if you found Mr. Tsarnaev guilty and you decided that the death penalty was the appropriate punishment, could you conscientiously vote for the death penalty. So it says -- the question is assuming -- and you're a lawyer. The question is assuming that he's guilty and that you found that the death penalty was appropriate.
JUROR: I guess part of my problem is that I'm disturbed that I have to assume his guilt at this stage without hearing anything and to prejudge the particular case I'm asked to come and judge. I don't know that I really want to exercise that fantasy. And I'm sorry if I'm being difficult about it.
MR. MELLIN: Well, we're all here today. It's really not a fantasy, though. I mean, we're getting down to if you found him guilty, which means the jury's now deciding life versus death, and if you believed that death was appropriate, could you ever vote to sentence someone to death?
MS. CLARKE: That's mixing this case with "could you ever vote someone." I mean, I think we -- the juror's problem is prejudging this case.
THE COURT: Yeah, I think as I was hearing it, your answer, the difficulty was that the question was phrased in terms of this case. Let's generalize it.
JUROR: You want me to step back?
THE COURT: If you were sitting on a death penalty case where the defendant -- that is, when I say that, a capital case, and the defendant is found guilty of a capital crime, and you concluded that for that defendant and for that crime the death penalty was an appropriate punishment, could you conscientiously vote to impose it in that case? And --
JUROR: If, after hearing the Court's instructions, and if I believed it was one of those -- it fit into one of those rare cases where I believed the death penalty should be imposed, having understood the law as given to me, then, yes, I could vote to impose the death penalty.
THE COURT: Do you have a collection of the category of cases you're thinking of? Do you have some examples?
JUROR: I don't really.
MR. MELLIN: Well, can you imagine any case that you would think is appropriate for the death penalty?
JUROR: Yes.
MR. MELLIN: What?
JUROR: I think Slobodan Milosevic was close, if not a prime example. Again, I didn't do that trial.
MR. MELLIN: So genocide?
JUROR: Genocide's a good starting point.
MR. MELLIN: Okay. Anything other than genocide?
JUROR: I mean, I think -- I cannot say that I have sat and thought about a list of particular crimes or severity of crimes where I would have a checklist of what I thought was appropriate for the death penalty or not. And having never worked on a death penalty case, I've never even read an instruction about what, at least legally, is considered for the death penalty or not.
I mean, everybody uses the example if somebody hurts your child, you know, a child, that's sort of a prime example of where people can go. But I like to think that we all take a step back and that's why we have juries decide rather than letting our emotions take over.
Without -- I guess that's my answer. I have not come up with a list of cases where I think it would be appropriate. I mean, I'd have to listen to the Court's instructions, I would have to judge the facts in front of me and determine whether or not that satisfied me.
MR. MELLIN: But you've known since January 5th that you were going to be coming back in here, because you're a lawyer, you understand how this works, right?
JUROR: Uh-huh.
MR. MELLIN: In fact -- you just have to say "yes" or "no."
JUROR: Yes.
MR. MELLIN: In fact, you're a criminal defense attorney, right?
MS. CLARKE: Your Honor, this is not cross-examination.
THE COURT: Yes, this sounds a little bit too much like cross-examination.
MR. MELLIN: Well, I think in answer to one of the questions, you said you'd been a criminal defense attorney for how long?
JUROR: A little over 22 years.
MR. MELLIN: Since 1992?
JUROR: Yes.
MR. MELLIN: And in answer to Question 92 which you filled out on January 5th, you said, "Killing people, especially government-sponsored killing, is generally wrong. While I can imagine a scenario where facts and law call for it, it is an exceedingly rare case."
So you wrote that as your answer to 92, right?
JUROR: Yes.
MR. MELLIN: And there what were you referring to as you can imagine a scenario where facts and law call for it?
JUROR: The Milosevic example is usually the one I rest on when I say I can immediately come up with a scenario. Whether or not there are other scenarios, again, without knowing specifics, I find it difficult to answer the question.
MR. MELLIN: Okay. So since January the 5th, though, you haven't been able to come up with any other scenario, and as you sit here today the only scenario you can come up with is the genocide scenario?
MS. CLARKE: Your Honor, I think that's an unfair question. He hasn't been asked to come up with other scenarios.
THE COURT: I think we can move along anyway. I think I'm understanding the witness -- the juror's position.
MR. MELLIN: All right. The judge asked you earlier a little bit about your concentration in your type of work that you've been doing. What do you concentrate in?
JUROR: Right now I'm one of the supervising attorneys in the district court office in Worcester. So I do a lot of supervising of the lawyers in that office. I am -- I -- directly over six lawyers. I still do maintain a caseload of my own in both district and superior court in Worcester.
MR. MELLIN: All right. And just for the record, you didn't really indicate if that was for the prosecution or for public defender service or who that is for. Who is that for?
JUROR: It's for the public defender service, the Committee for Public Counsel Services.
MR. MELLIN: Okay. And you actually worked for the New Hampshire public defender at some point. Is that correct?
JUROR: Yes.
MR. MELLIN: Have you ever worked for the prosecutors?
JUROR: No. I have worked with the prosecutors.
MR. MELLIN: On cases, correct?
JUROR: Well, on cases. And we're very -- Worcester is actually a very collegial area. Just last night, for example, I coordinate with members of the D.A.'s office and the court and Bar Advocate Program in advanced trial skills training. And so we do work collaboratively on some issues.
MR. MELLIN: But in your actual job you've never prosecuted a case, right?
JUROR: Right.
MR. MELLIN: Now, you mentioned in answer to Question 76, and it's on page 20, that you read the First Circuit's decision rejecting the delay of trial and change of venue.
JUROR: Yes.
MR. MELLIN: When did that occur, that you read that?
JUROR: I don't remember the day. I heard on the radio there had been a motion and it was, I think, several days before we were to come on that Monday. And I wanted to see what the court's decision was to find out if I was actually going to be arriving in court. So that's why I sought it out.
MR. MELLIN: Okay. You said that you've met two of the public defenders on this case before, correct?
JUROR: Yes.
MR. MELLIN: And when did you meet Ms. Conrad?
JUROR: I couldn't tell you when. It was years ago.
MR. MELLIN: Do you remember what function it was at?
JUROR: I'm not entirely sure. It might have been -- it might have been a MACDL event, a Massachusetts Association of Criminal Defense Lawyers event. I'm really not 100 percent sure.
MR. MELLIN: And what about Mr. Watkins?
JUROR: I want to say it's a similar-type event.
MR. MELLIN: And I think you told the judge you've never worked on a death penalty case on behalf of a defendant, correct?
JUROR: Correct.
MR. MELLIN: Well, do you know what the Innocence Project is?
JUROR: I do.
MR. MELLIN: What is that?
JUROR: We have -- at CPCS there is a lawyer -- there may be more than one lawyer in that unit -- who do work on sort of Innocence Project-type cases.
MR. MELLIN: Okay. And what is the Innocence Project?
JUROR: My understanding is the Innocence Project looks at old cases, determines whether or not they require -- usually -- sometimes in death penalty cases, but I don't think it's exclusive, and determine whether or not there was some error in trial and/or actual innocence of the defendant, and they begin to file -- whether it's discovery pleadings or motions for a new trial, depending on new evidence.
MR. MELLIN: Do you know if they advocate on behalf of people on death row?
JUROR: I'm certain they do.
MR. MELLIN: Now, the one person that you're talking about in your office who deals with that, who is that person?
[REDACTED]
JUROR: .
MR. MELLIN: Is she under your control?
JUROR: No, she's not even in Worcester.
MR. MELLIN: Have you ever gone to any functions or training concerning Innocence Project?
JUROR: No.
MR. MELLIN: Do you have any affiliation with it?
JUROR: I don't.
MR. MELLIN: Do you --
JUROR: Other than there's somebody in my office who's affiliated with it.
MR. MELLIN: Have you anything on a website that would indicate that you have any affiliation or connection to the Innocence Project?
JUROR: No.
MR. MELLIN: Your Honor, may I ask the juror about the issue that was raised previously?
THE COURT: I don't think it's necessary.
MR. MELLIN: All right. All right. Thank you.
MS. CLARKE: May I? Just a couple of questions about --
THE COURT: Just a couple would be perfect.
MS. CLARKE: It might have some subparts.
THE COURT: You might set a good example for somebody else.
MS. CLARKE: You know, we don't typically see genocide cases in the courts in the United States. And really, this just is sort of a question to flush out whether your views against the death penalty are such that you could never consider it or you could in a given set of circumstances.
My name is Judy Clarke. I'll really sorry. I'm one of the lawyers for Mr. Tsarnaev, but I was feeling pressured to go fast.
THE COURT: I'm glad. I just want to make that clear to everybody.
MS. CLARKE: I'm not feeling singled out.
THE COURT: You're not singled out at all.
MS. CLARKE: What the judge will instruct a jury that's just convicted a defendant of a capital crime is that they have an obligation to consider the aggravating factors presented by the government, the mitigating factors presented by the defense, deliberate about them, weigh them, and come to their own individual judgments about whether that justifies a sentence of death.
And then -- and I assume from what I'm hearing about you is that you would be able to do that, go through that process of listening to your fellow jurors and weighing aggravation and mitigation. Is that right?
JUROR: I think that's a fair statement.
MS. CLARKE: And that you would then be able to deliberate and debate the pros and cons of imposing a sentence of death or life. Is that right?
JUROR: That's right.
MS. CLARKE: And if in your conscience, your individual conscience, you decided that the death penalty was an appropriate sentence for that given set of facts, the question is could you then actually vote to impose it?
JUROR: I think I could.
MS. CLARKE: Are you pretty confident of that answer?
JUROR: Yes.
MS. CLARKE: One question -- one area about -- there's been some suggestion that you're a criminal defense lawyer so you're biased toward one side or the other. As I read your answers to Questions 44 through 46, that was if you have positive feelings one way or the other about defense, prosecutors and law enforcement, you sort of cut across the board: "I've got friends that are prosecutors; I've got friends that are police officers; I've got friends that are defense lawyers." Is that a fair assessment?
JUROR: That's a fair assessment. Everybody -- having worked in the system for as long as I have, I mean, there are lawyers I think are stellar whether they're prosecutors or defense attorneys. There are police officers I think are stellar; there are police officers I don't. But it's really an individual determination on the person's work.
MS. CLARKE: So just given your role as a criminal defense lawyer and the fact that you know people in the FPD's office, would that bias you one way or the other for or against the defense?
JUROR: I don't think it would one way or the other. Again, I think based on the training and experience I've had, I look at what's in front of me and I make a decision based upon what I see.
MS. CLARKE: Okay. Thank you very much.
THE COURT: Thank you.
(The juror is excused.)
COURT CLERK: Juror No. 356.
COURT CLERK: Juror 356.
(The juror enters the courtroom.)
COURT CLERK: Ma'am, over here if you would, please. Have a seat.
JUROR: Thank you.
COURT CLERK: Do me a favor and keep your voice up, speak into the mic so everybody around this table can hear you. And this is adjustable, so you can just move it however you like it.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thanks for your patience.
JUROR: Not a problem.
THE COURT: Since you were last here, have you been able to follow the instructions to avoid talking about the substance of the case?
JUROR: I would say for the most part. You know, people asking me, "Are you going?" And I'd say, "Have to call tomorrow night. I have to call tomorrow night."
THE COURT: Fair enough.
And also avoiding media stories about the case, to the extent you're able to?
JUROR: Yes.
THE COURT: If you see them you put them away.
JUROR: I walk away.
THE COURT: So that is the questionnaire that you filled out. We're going to follow up on some of the answers you gave.
JUROR: Okay.
THE COURT: Ask you some questions.
So first of all, tell us about your employment.
JUROR: I work for the Town of Wareham in the capacity of a secretary for the special education department, student services. And I basically do IEPs, do record-keeping, you know, all the clerical portion. Keep the records for state-mandated programs.
THE COURT: When you filled out the questionnaire, -- this is on page 5, Question 10 -- you indicated that you were in the middle of a state coordinator review and you had a lot of responsibility for that and you were concerned about how that might affect -- how this case might affect that.
Has that review been completed?
JUROR: No, it -- the actual -- they actually are coming in May to the building, but we're getting all the records ready.
THE COURT: I see. Is that a particular problem for you, if you were on the case?
JUROR: Well, I'm one of the people if they call for a certain record, I have to put it all together, probably similar to what your people do here.
THE COURT: Are there other people who could do that if you were absent?
JUROR: Right now I'm the only one that does my job, and another girl does her portion of the job. We have a large population. Over 20 percent of special ed of our students, so that we would --
THE COURT: What would that be in real numbers?
JUROR: I have 150 kids that I coordinate the paperwork for.
THE COURT: Okay. When the state does a review like this, what's involved? I know you're gathering the records.
JUROR: I'm gathering the records and making sure --
THE COURT: Someone comes down and reads them. Is that --
JUROR: Yes, over a certain period of time in May. We're getting all the files and everything ready for them for when they come in May.
THE COURT: Can a school district adjust the review date for special circumstances?
JUROR: I am not aware of that, no.
THE COURT: So it might affect the performance of those duties, but would it affect you personally in any way? Would you --
JUROR: I feel like I have an obligation because it's my files.
THE COURT: What I mean is, would you suffer any loss of pay or anything like that?
JUROR: No, sir, I would not.
THE COURT: We asked at the bottom of page 10 and top of page 11 whether you blogged or posted opinions and so on or whether you use social media. I'm looking at 29 on page 10. You said that you apparently post opinions for retail items or hotels?
JUROR: Yeah.
THE COURT: Is that where you're kind of rating --
JUROR: Survey.
THE COURT: -- a service?
JUROR: Yeah.
THE COURT: Any other kinds of postings that you do?
JUROR: I mean, just posting on other people's -- their posts. Nothing, you know -- really nothing political or anything.
THE COURT: Nothing about public affairs or anything like that?
JUROR: Not that I remember.
THE COURT: Okay. And in Question 30 you say you use Facebook regularly?
JUROR: Yes.
THE COURT: And Instagram and Twitter on occasion?
JUROR: Right.
THE COURT: Tell us about the "on occasion."
JUROR: I can't tell you the last time I twitted -- tweeted, rather. Obviously, since I don't know the correct word. The other, Instagram, you know, just when my kids post pictures, you know, I'll look on that. But other than that, I don't post pictures on Instagram.
THE COURT: Okay. On page 12 we asked about your relationship with people in various categories of employment. You had a cousin who was an FBI agent but is now retired, I guess?
JUROR: He was.
THE COURT: Where did he work, do you know?
JUROR: He worked in Washington and he was a supervisor.
THE COURT: Okay. Was he a first cousin?
JUROR: Yes.
THE COURT: And did he have any special area of assignment or anything that you know of, subject matter, drugs, mail fraud?
JUROR: I really don't know. He's much older than I am, so...
THE COURT: Okay. And I'm looking at page 15, Question 47. You've served on three juries, it looks like?
JUROR: I've been called for four and served on three.
THE COURT: Okay. One, a civil case settled, I guess, but the two criminal cases went to verdict. Is that right?
JUROR: Yes.
THE COURT: And can you tell us roughly when those were?
JUROR: Wareham was probably -- it was March of 2014, so it was probably -- it was 2011. It was a -- an OUI on a woman that was stopped by a police officer and --
THE COURT: But the jury trial was in 2014? That's what I'm getting at. When was the jury trial?
JUROR: In -- you're talking about the second one, the one that -- in Wareham?
THE COURT: Yeah, the DUI. That was in -- you used two different dates and I wasn't sure which was the trial.
JUROR: In 2014 was when I did the Brockton trial.
THE COURT: I see.
JUROR: 2011 was when I did the Wareham OUI.
THE COURT: How about the Suffolk?
JUROR: I want to say the 1980s.
THE COURT: Okay. So let me ask you to turn to page 20. Actually, you filled this out this morning, right?
JUROR: I did.
THE COURT: Because you had a mishap in filling it out, apparently turned two pages at the same time?
JUROR: I would think so.
THE COURT: Yeah. So in Question 77 we asked you whether as a result of things you'd seen or read in the news media or from any other source you formed an opinion that the defendant was guilty, that he was not guilty, that he should receive the death penalty, that he should not receive the death penalty, and to each of those you selected the choice "unsure." Can you tell us what you were thinking when you made that choice?
JUROR: I think that I -- I don't like to be biased. I don't have all the facts. I saw things on TV, but I don't have all the facts, so I have to say I can't form an opinion yes or no.
THE COURT: Okay. You've been on criminal jury trials. You understand that anybody who's accused of a crime is presumed to be innocent unless and until the government proves them guilty beyond a reasonable doubt by the proof at trial, right?
JUROR: Correct.
THE COURT: And that the task of the jury is to focus on the evidence at trial and make a judgment about the issues based on that and not on ideas from outside the trial?
JUROR: Correct.
THE COURT: Are you confident you'd be able to do that in this case?
JUROR: I would honestly hope so.
THE COURT: Do you have any reservation or doubt about your ability to do it?
JUROR: No. I feel I'm always fair in life and equitable.
THE COURT: On the next page, 21, you say you bought some Boston Strong items and contributed to victims' funds?
JUROR: I did.
THE COURT: Can you tell us what the items were?
JUROR: I bought a shirt which the money went -- was contributed to the fund.
THE COURT: So those are the same thing?
JUROR: Yes.
THE COURT: In other words, buying the shirt was the contribution?
JUROR: Yes.
THE COURT: Was the shirt for yourself?
JUROR: Yes.
THE COURT: Do you still have it?
JUROR: I do.
THE COURT: Do you wear it?
JUROR: No; it's too big.
THE COURT: Question 83 you have a friend whose daughter had a connection through a dance studio, I guess, with Martin Richard's sister?
JUROR: Yes.
THE COURT: How do you know about that? I mean, your friend told you or --
JUROR: Yeah. Well, actually, my cousin works for this woman and she's also a friend, and it was just said in passing back when all this was happening.
THE COURT: Would that have any effect on your ability to be a fair-minded juror in this case?
JUROR: Honestly, I don't think so.
THE COURT: Let's turn to page 23. There's a series of questions that we ask beginning there about your attitude towards the death penalty.
JUROR: I'm sorry. What --
THE COURT: Page 23.
JUROR: Okay.
THE COURT: And it begins with Question 88 which asks if you have any views on the death penalty in general, what are they, and you said "not sure."
JUROR: I have mixed emotions about it. I'm not -- I don't -- I think that certain cases might need that, other cases might not. I don't -- I'm not sure on what I feel until I would be posed with the question.
THE COURT: Okay. Question 89, right below it, we asked you to place yourself on a scale in attitude towards the death penalty from strongly opposed at 1 to strongly favor at 10, and you picked 5. Does that sort of --
JUROR: Sums up --
THE COURT: What you just told us?
JUROR: Yes.
THE COURT: So let's go to the next page. Question 90. Here, rather than numbers we ask you to select which of the several possible statements you might think was the closest to your views about the death penalty --
JUROR: Uh-huh.
THE COURT: -- for someone who was guilty of murder, and you selected C, which is, "I'm opposed to the death penalty but could vote to impose it if I believed that the facts and the law in a particular case called for it."
JUROR: Which is basically without the facts I can't make a decision.
THE COURT: Uh-huh. So you tend to be opposed?
JUROR: I suppose it's my Catholic upbringing, would be, but I don't follow all the rules of the faith.
THE COURT: Okay. You don't have to go into that.
(Laughter.)
THE COURT: But what I'm interpreting from the answer is you're opposed to it. You're not severely opposed to it. So in B, for example, you'd have a difficult time and you're not as ambivalent as perhaps D where you're not for or against. You tend to be opposed, but you could vote for the death penalty if you believed in a particular case the facts and the law supported that decision. Is that correct?
JUROR: Yes, sir. That's correct.
THE COURT: Okay. Then on the bottom of page 25, Question 95, asking about 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 you weren't sure.
JUROR: Again, until I would -- I mean, it's a supposition. I can't really say what I'd do until I hear everything. I honestly -- I don't know what more I can tell you, but that's how I feel. I don't know. I'm not sure if I could or I couldn't until that time.
THE COURT: One of the things I think the question is getting at is even if you believed that the death penalty was the right punishment, could you decide to vote for it? I think that's one of the things it may be asking.
JUROR: If I believed it was, yes.
THE COURT: And, of course, the parallel question on the next page at the top was if you found the defendant guilty and decided life imprisonment without the possibility of release was the right punishment, could you conscientiously vote for that penalty.
JUROR: Yes.
MS. PELLEGRINI: Good afternoon, ma'am.
JUROR: Hi.
MS. PELLEGRINI: My name's Nadine Pellegrini -- and my microphone is turned off. Now it's turned on. And I'm a member of the prosecution team. I just want to follow up on a couple of questions.
JUROR: Certainly.
MS. PELLEGRINI: So I might have missed this. When the judge was asking you about your job, you indicated that, you know, you thought -- you had an obligation to do your job, when you were talking about the review. Okay.
So I just want to make sure I'm getting this correct. So when you said in response to one of the questions, I think it was when you got your summons, that you -- yeah, it's Question No. 75, the end of it, "How long it would go in order to prepare people for how long I would possibly be out of work." So that's possibly be out of work just for that period of time, not out of work totally?
JUROR: Right.
MS. PELLEGRINI: Right?
JUROR: Correct.
MS. PELLEGRINI: So my question is, you know, when you're a juror, what we ask of jurors is that they give their full attention to what's going on in the courtroom, and other things, just basically, there's not room or time for them. So would that be a problem for you? Would you be thinking about, Oh, my God, are they doing it the right way, are they doing it the way I would do it?
JUROR: I probably -- I'm a dedicated employee, so probably what will happen when I leave here at night, I will pick up work to work at home and then drop it off at a friend's house on my way to have it brought back.
MS. PELLEGRINI: Would you do that every day?
JUROR: Almost every day. And on Fridays I would be at work.
MS. PELLEGRINI: All right. You're dedicated.
So just a couple of other questions. And maybe it was the judge's questioning of you, right at the end here when we were talking about the Question No. 95 where you had marked that you were not sure and you said "I don't know, I'm not sure I could," and then the judge explained a couple of things to you, and then you said, "If I believed it, I think I could," what was the change?
JUROR: Maybe when I was filling this out -- I really can't tell you. I think that it -- depending on the facts of everything, I always try to be honest and equitable. And by saying "unsure," I am being honest that I think that I really truly believe that I can do what is necessary. I'm not going to say that it wouldn't be stressful either way, but I think that's what I'm trying to say, that I can honestly -- I think I can honestly do the job. I think at the point I wasn't sure. Am I? I mean, when you're coming into jury duty -- it's nerve-racking to come, and I have experience. And so I think that that's probably -- answering this questionnaire was stressful too.
MS. PELLEGRINI: Okay. So, again, when you get to be a juror, as you know, you -- one of the things you're called upon to do is deliberate with your fellow jurors. Would you find that stressful if you were at the point where you're all talking about the penalty?
JUROR: I would have to give the penalty the -- after the instructions from the judge, I would follow the instructions from the judge and then do the -- you know, my opinion of what I believe at that point.
MS. PELLEGRINI: Right. Perhaps --
JUROR: And, yes, I would think that I could -- if I believe that that's from his instructions what I need to do, that would be what I would need to do.
MS. PELLEGRINI: I guess what I'm getting at a little bit more is could you -- would you feel comfortable discussing how you feel with your fellow jurors? You have to deliberate. Would that be stressful for you or do you feel you could also do that? I know you've done it, but now we're talking about, you know, the possibility of --
MR. BRUCK: Objection. We've already covered this.
THE COURT: Yeah, I think we've covered it. I think we can move on.
MS. PELLEGRINI: Thank you, ma'am.
THE COURT: That's it?
Mr. Bruck?
MR. BRUCK: Good afternoon, ma'am. I'm David Bruck. I'm one of Jahar Tsarnaev's attorneys. And you have answered all of our questions. I don't have any more for you.
JUROR: Thank you very much.
THE COURT: Thank you.
[REDACTED]
(The juror is excused.)
THE COURT: We can go back on.
COURT CLERK: Audio on.
MR. DOREAU: Audio on.
(In open court:)
THE COURT: We're ready.
COURT CLERK: 358.
[REDACTED]
COURT CLERK: Juror 358.
COURT CLERK: Juror 358.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, if you would. Have a seat.
JUROR: Thank you.
COURT CLERK: Thank you. And do me a favor, keep your voice up, speak into the mic so everyone can hear you, okay?
JUROR: Close to the mic?
COURT CLERK: Yes.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here last, have you been able to follow the instructions not to discuss the substance of the case with anyone?
JUROR: Yes, sir.
THE COURT: And also, as much as possible to avoid media about the case?
JUROR: Yes, sir.
THE COURT: So that's the questionnaire you filled out in front of you. We'll make reference to it.
I want to first start with you had a fairly long answer to the question about the schedule in the case. If you would turn to page 5 and Question 10, if that would refresh your recollection as to what you wrote.
JUROR: May I also add to this that I booked my trip to the Philippines to meet my future in-laws in March? I would have written it down, but I hadn't booked that flight yet when I showed up for the questionnaire, if I can add this to the information.
THE COURT: Let's talk about the --
JUROR: Okay.
THE COURT: What you have there. Tell us what you think the workplace issue is; what your work issue is.
JUROR: I'm in a situation in my career that a lot of things are happening. And I'm an analyst. I'm a senior analyst, and I'm involved in very important projects. And I'm helping out senior management, so being away for three to five months would be a very big disruption at this point in my career because senior management, they want to get things done. And me being away from it, it's sort of being away from the action and not being on the front line itself of what's going on. I do risk management at a major financial institution in Boston. So that's really what the situation is.
THE COURT: We tried to structure the schedule nine to four, Monday to Thursday, to afford people late in the day or perhaps Fridays to get back to the office and do things, catch up. It wouldn't be 100 percent, but it might ameliorate the difficulty to some degree. Would that help?
JUROR: Honestly, sir, it wouldn't. I'm perfectly honest. It wouldn't because we are putting out fires on a daily basis. The regulatory environment right now is enhanced, and we have a lot of work to do. And that's the situation.
THE COURT: So tell me about the trip.
JUROR: I'm going to the Philippines to meet my future in-laws. I'm flying out on the 26th of March. My future fiancée. I haven't proposed to her yet, but we've talked about it.
MS. CLARKE: Oh, let's talk about that.
JUROR: She's going to be there first. She's flying there first, she's going there, and then I'm going two weeks later to meet her family. We've only Skyped with her family so far.
MS. CLARKE: I think the parties would wish him well and good luck.
JUROR: Thank you.
THE COURT: I hope she says yes.
MS. CLARKE: Yes.
JUROR: I hope so too.
COURT CLERK: Thank you.
(The juror is excused.)
THE COURT: All right. So hold on one minute.
COURT CLERK: Hold off on 359.
THE COURT: Is there anything more before we bring her in? This is the social media.
MR. CHAKRAVARTY: Social media.
THE COURT: Let me just take a peek.
MS. CONRAD: Can I just -- I don't know if the government already had this, but if they have anything other than -- I'm getting mixed answers over here, actually, about that. Whether -- but if they have something that we don't have, I would ask that we be provided with that.
(Pause.)
THE COURT: So I've looked at it very quickly because there's a lot of things here. It does seem to be in the time period of April 15th through the 19th.
MS. CONRAD: She also posted on Twitter in April 2014 on the occasion of the opening day for the Red Sox season. I sort of -- you know, Boston Strong heroes of Boston and so forth. I think, you know, given her expression, she should be --
MS. CLARKE: I think we.
MS. CONRAD: -- disqualified.
MR. MELLIN: Your Honor, I think we agree. Without establishing a trend, we'll agree as to this particular juror that she should be excused.
THE COURT: Okay.
We'll proceed to 360.
COURT CLERK: Juror No. 360.
COURT CLERK: Juror 360.
(The juror enters the courtroom.)
COURT CLERK: Ma'am, over here, please. Have a seat. And do me a favor and keep your voice up and speak into the mic so everyone at the table can hear you.
JUROR: All right.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow the instruction to avoid talking about the substance of the case with anybody?
JUROR: Yeah, I haven't talked about anything in particular, but people do know that I'm --
THE COURT: Sure. Right. They know where you are. You have to tell people where you're going, obviously, but the substance and the merits of the case you haven't talked about?
JUROR: Yeah, no.
THE COURT: And also, as best you could, avoid media stories about the case?
JUROR: Yeah, I'm pretty good about that.
THE COURT: So let's talk about your employment. You are an art teacher. Is that a full-time position?
JUROR: No. So I am a part-time art teacher and then I go to an after-school job. So I have two jobs.
THE COURT: What does "part time" mean in terms of the art teacher? The first job --
JUROR: I'm a .2, so it means I go in in the morning. So I'll go there first thing in the morning and then I have a break, and then I go in for about five hours to my second job.
THE COURT: Okay. I want to isolate the two. I want to understand the day. So for the school job in the morning, the part where you said it was a part-time art teacher job --
JUROR: Yes.
THE COURT: -- what is your schedule for that on a weekly basis?
JUROR: I work there from about like the start of school till about nine, nine-thirty every day, Monday through Friday.
THE COURT: All right. And then after that you go to the other school, the after-school program?
JUROR: Yes.
THE COURT: And when does that begin?
JUROR: That starts at one.
THE COURT: And goes till, what, six?
JUROR: Six, yes. Generally. Sometimes it's a little bit different, but...
THE COURT: Right. Now, how are you compensated for each of these positions?
JUROR: Well, for my art teacher job I'm salary, and for my after-school job I'm hourly.
THE COURT: Okay. And you do this Monday through Friday?
JUROR: Yes.
THE COURT: So it sounds like -- I guess -- I may be wrong about this, but it sounds like you may get more compensation from your afternoon job than from the morning job?
JUROR: Yeah, a little bit more. Yeah.
THE COURT: And it's that job that if you didn't work, you wouldn't get paid?
JUROR: Probably not. I'm guessing that I wouldn't get paid for that job.
THE COURT: Well, if you weren't -- if you're on a case and your normal time would be one to six, say, you wouldn't -- you know, you were here until four, I mean, that would be, I imagine, a problem. So four days a week, would that be four days out of your earned income for that week?
JUROR: If it was Monday through Thursday, it would be four days. If it was five days, I work there five days a week.
THE COURT: No, I understand.
JUROR: Okay.
THE COURT: Having Friday off doesn't help you that much. Is that right?
JUROR: Working one day a week, no, they would probably need to find somebody else.
THE COURT: Okay. I don't think we're going to ask you to do this.
JUROR: Oh, great. Thanks.
THE COURT: Just leave it there.
COURT CLERK: Just follow that gentleman over there, please.
(The juror is excused.)
[REDACTED]
COURT CLERK: Ready?
THE COURT: Yeah.
COURT CLERK: Juror No. 361.
COURT CLERK: Juror 361.
MS. CLARKE: Can I just have one moment?
COURT CLERK: Sir, come on here, please.
THE COURT: Hold up for just one second.
COURT CLERK: I'm sorry. Can you just go back there for one second, sir?
(Pause.)
MS. CLARKE: Your Honor, I think the parties are fine with agreements on the last two, and I can --
THE COURT: Hardships or a variety of things?
MS. CLARKE: A variety of things.
THE COURT: Okay.
MS. CLARKE: I can explain it a little bit more.
THE COURT: No, I don't -- I think -- I saw a hardship issue with both that might need exploration. I thought we might need to explore that, but if you have other reasons that you can concur on, I'll accept that.
COURT CLERK: So they're both gone?
THE COURT: Yeah.
Okay. So we will take pause. Is 4:30 okay --
MS. CLARKE: That would be great.
THE COURT: -- to come back? Thank you.
(The Court exits the courtroom and there is a recess in the proceedings at 4:08 p.m.)
(The Court enters the courtroom at 4:38 p.m.)