5.Challenges for Cause and Juror Qualification Rulings
90 lines(SIDEBAR CONFERENCE AS FOLLOWS:
THE COURT: I think the first three, I guess, we suspended on early. That's 366, 369, and 370. So the first one for discussion, if there is any, is 375.
MS. CONRAD: That would be a defense motion, your Honor.
Your Honor, first of all -- well, the main point here is that he did not put down, in response to Question, I think, 80, 81, 82, that anyone was affected but he expressed -- I think he wrote something like he wasn't sure what the question meant. And he clearly interpreted that as whether anybody was physically injured.
However, he then volunteered that he knew a lot of people who worked in the area and a lot of people who were affected. And he said, Everyone in Boston was affected. Everyone in the country was affected. And I tried to follow up on that, and I was not permitted to. And I think that that is a crucial comment because it's not a question of an empirical fact, simply an empirical fact, of whether someone was affected. It is the juror's subjective view of the impact of these events on this person. Just as Juror 385 said, you know, although she didn't know anyone who was there, but her husband had run the Marathon before. She could have been there. So the idea of it personally affected her. And the problem here is we don't know how he feels about these events except that he feels that all of Boston and potentially all of the country was affected.
To the extent, as we've said in previous settings and previous pleadings, that this is an event, a crime, that has been perceived as an attack on Boston, it seems to me this is an indication that this juror believes it was an attack on Boston, an attack on his community, an attack on him. And that's what we don't know, what was behind those comments. And taking his comments at face value, I think, given the lack of follow-up that was permitted, I think that he should be disqualified.
I also would note that, with respect to Question 77, he said that, as far as being able to put aside his views on guilt, he said, Well, really, if there was an option for "unsure," I would have selected "unsure." When I tried to follow up on that, again, I was cut off. And he sort of reverted back to, having been asked questions by your Honor and I think the government, although I can't remember, Oh, yes, of course, I would presume him innocent.
But I think the fact that his first reaction, using his own words, was, Well, I'm unsure if I could put my opinion aside. And his own reaction, in his own words, was, A lot of people I know were affected. Boston was affected. I think that that is someone who is not impartial.
MR. WEINREB: Your Honor, the government opposes the motion. Unlike the other juror who talked about her husband having run the Marathon twice, this juror gave no indication whatsoever, through his emotions, body language, and really not through his literal answers, that he believed he personally had been affected in a way that would interfere with his ability to be fair and impartial.
I interpreted his saying, talking about this whole city of Boston, indeed the whole country, was affected that he personally had been no more affected than anybody had been --
MS. CONRAD: But -- go ahead.
MR. WEINREB: -- in Boston and in the country.
In any event, the question is always not whether a particular thing happened. It's whether it would interfere with the juror's ability to judge the case on the evidence, to judge it fairly. And he gave every indication that he would be able to and that none of these other -- these things that he didn't even consider to be strong enough impacts to warrant listing in the answer to the question on the questionnaire would interfere.
MS. CONRAD: May I just respond to that briefly? Mr. Weinreb, having objected successfully to those follow-up questions, now says, Well, he didn't say how it emotionally affected him because he wasn't asked. So we're inferring from the lack of an answer, not for lack of trying to ask the question, that there's nothing there. And that's what we can't do.
THE COURT: Well, I'll deny the motion. On that topic, it seemed to me that his answer, on its face, was a -- he was using the word "affected" in the broadest possible way and not in the way that would affect his judgment in the case in the sense that everybody is aware of it and has some idea. So --
MS. CONRAD: But --
THE COURT: It in a sense devalued the word so it didn't particularly mean what we were trying to get at, which is a much more closer personal connection. And that's influenced, I think, by his persona. He's obviously a pretty confident fellow. He seems very bright. If he were affected in a substantial way, it would have showed differently from the way he appeared in answering the questions, and I just don't think that's right.
I think his answers were satisfactory. As I say, he appears as an intelligent, thoughtful person, who's cognisant of his abilities to do what he's asked to do. And I think he's fine.
MS. CONRAD: The only one thing I just want to add, because it may impact future questioning, is it seems to me, if that was going to be the response, Well, I was no more affected than anyone else, then that would have been his response. And I don't know why we aren't willing to let him say that in response to the question.
THE COURT: Well, jurors don't always give the best response they could. We judge them on what they've said. Anyway, my assessment is that he's a qualified juror.
Next is 376.
MS. CLARKE: No motion.
MR. WEINREB: No motion.
THE COURT: 379, I think, was terminated early, as was 385.
386, I don't remember whether there was anything on that or not.
MR. WEINREB: Well, the government moves to strike 386.
THE COURT: Go ahead.
MR. BRUCK: There will be no argument from the defense.
THE COURT: Okay.
MR. BRUCK: 390 is a motion from the defense.
THE COURT: Okay.
MR. BRUCK: And I'm not sure. Does the government oppose?
MR. WEINREB: We do.
THE COURT: Let's hear the motion then.
MR. BRUCK: As your Honor will recall, this is the young woman who now works at Mass. General, who initially put herself down as a 10 on her death penalty views, expressed the view that she would always impose the death penalty for anyone convicted of an intentional murder. She also put herself down as a (d).
But her own words -- I mean, in the end, I asked clarifying questions, and she went right back to saying that, if the person was convicted beyond a reasonable doubt, if he was guilty beyond a reasonable doubt, she would always impose the death penalty. And there was no longer any ambiguity. In fact, the original answer she gave was the last answer she gave despite some valiant efforts to rehabilitate by the government.
In addition, this is a juror with -- who describes -- describing to her very young son, who is now seven, what had happened and his confusion. She has a sister who has been eight years in the Marines, served in Afghanistan. She now works at Mass. General, which, of course, is one of the centers for treatment, although she was not there at the time. There were a lot of issues with this juror, but I don't think there's any doubt that she is a Morgan juror. If there is -- at a minimum, she is substantially impaired.
To the extent that there was what appeared to be vacillation, it all makes sense when one interprets, as I think we must, her answers as saying that it would depend on the evidence of guilt, how certain she was of guilt, whether or not she would always support the death penalty or not. But if there was no issue of guilt, she never -- once that was clearly established, she could listen to the evidence in the penalty phase; but in the end, if there was no issue of guilt, she would never -- she would always impose the death penalty. This is a Morgan-impaired juror, and we think she should be excluded.
MR. WEINREB: So I didn't interpret her answers that way. She -- just as the Supreme Court has said, that there are jurors who can be morally opposed to the death penalty but can still decide cases on a case-by-case basis and impose it where it is appropriate, this juror struck me as someone who was sort of the mirror image of that, someone who believes very strongly that there should be a death penalty and that it is appropriate in cases but not necessarily in every case.
If you look at all of her answers on the questionnaire, it's true that she put a 10 for 89. And although Mr. Bruck correctly reads the literal language of the question, I think our experience has uniformly been, in questioning these jurors, that they just see this as being do you oppose or favor the death penalty as a general matter without paying attention to the specifics and the two-phase nature of a capital case.
So she strongly is in favor of having a death penalty. But every time she was asked whether she could vote to impose it or a life sentence in the alternative, she said she could do both. When it came to 90, she answered (d). When it came to Question 96 and she was asked -- and here I'll quote the literal language -- "If you found him guilty and you decided life imprisonment without the possibility of release was the appropriate punishment, could you conscientiously vote for it?" She said "yes." She didn't even say unsure.
I think that she actually was pretty consistent throughout her answers here, that she had very strong feelings about the death penalty, no question about it, and she is strongly in favor of it. But I don't think that Mr. Bruck's final question, which was the attempt to sort of get her to say that she would automatically impose it was a fair question because that question used her own language of feelings, and it focused on the question of whether -- he, in fact, said to her, What we're after here is your feeling, what your feelings would be. And that's not the relevant question. The question is whether, despite her feelings, that it's an appropriate and important punishment, that she could decide, go either way. And, in addition, when Mr. Bruck asked that question, he didn't mention the possibility of mitigating evidence or mitigating factors.
So I think every time that the process was explained to her, how the system -- how the system works and what her duties would be, she was -- she said that she could impose a sentence of -- meaningfully consider mitigation and impose a sentence of life imprisonment.
MR. BRUCK: Do you need to hear anything further?
Her actual words in response to the Court, when you asked her about 10, about her response circling 10, she said, If he is guilty, I would be imposing the death penalty. And beyond that, any contrary answer she gave always had the ambiguity of where you're talking about guilt.
The other thing that I forgot to mention about her son, Mr. Weinreb sort of preemptively, knowing we would ask about it, asked her about the effect of having a son we all know is almost the same age as Martin Richard, and her response was -- there was a long pause, and then she said that that might make it difficult. Of course, you asked follow-up questions and she said, you know, she could put that aside or whatever she said. But that was the raw, unvarnished truth. And it's very understandable.
This juror has too much on her. There is way too much, at best, ambiguity. If you look at the actual words she used, both in response to the Court and in response at the end, after everything had been laid out for her, we cannot say that she would ever impose life imprisonment if she found beyond a reasonable doubt that this young man was guilty.
THE COURT: I was going to ask you to comment on that. That's the child.
MR. WEINREB: Yes.
THE COURT: She's apparently the single mother of a boy about Martin Richard's age.
MR. WEINREB: Yes. So, again, I think that her response to that was to give it some real thought. It seemed to me that she hadn't given it some real thought up to that point, and so she really did focus hard on it. I think, in saying that it would be difficult, that that was a tribute to her desire to think -- to be honest about it. And when she said -- her initial reaction was it would be hard. When she was asked again just how hard would it be, would it really interfere? She thought about it some more, and she said no.
Many of the people we're seeing have teenagers -- who have children who are teenagers, the same age as the defendant, and yet we're not taking it as a ground to strike people that they might have, you know -- it would be like sentencing to death someone who could have been their own son having committed the crime. I don't think that is a disqualifying factor in and of itself unless the juror really indicates that it's not something that they could set aside. And this one seemed to, after giving it some thought, that she could.
And, frankly, I think that her hesitation is also further confirmation that she doesn't believe the death penalty is the automatic sentence in every case, or it wouldn't have been a problem to answer that question. She would have just said, of course, he should get the death penalty. That was never her answer to any of these questions. In fact, the only time it was ever the answer was at the end when Mr. Bruck led her into saying it, and it was very inconsistent with everything that had gone before.
THE COURT: Okay. I don't think I'm going to excuse her. I think that -- I was impressed by her persona, I guess. She seemed very composed, thoughtful, intelligent. I did think she was -- had some perhaps inadequate understanding of the processes. For example, I don't remember if it was with her or with one of the other jurors, but it happened perhaps in both cases anyway, that when the juror was talking about guilt, I took the meaning to be culpability in the context rather than the way we would use it as a first-stage proposition. And I think, understood that way, it does refer to the penalty phase and not to the guilt or innocence phase. In other words, it's a way of actually, you know, processing perhaps the instruction about particularly blameworthy case if you talk about how -- in other words, we think of guilt as binary. There will be a verdict that says he's guilty, or there will be a verdict that says he's not guilty. Jurors may think of it as a continuum. Some people are more guilty than others. That's a different way of using the word. I think it's not surprising that laypeople use the word that way.
It seemed to me throughout she was not necessarily fully understanding the difference between the guilt and the penalty phase and was getting confused about which phase she was being asked about perhaps for the reason I just mentioned, that people using the word "guilt," she may have been translating that in her head.
I think, in not excusing her, I really rely on my overall impression of her rather than on any specific answers. She did say things on both sides of the question. There's no question about that. She said them flatly sometimes. I don't know that -- first of all, we're assessing her as a whole and not on any given answer or series of answers. And I have to say that my judgment about her is that she can be prepared to hear the evidence in a penalty phase and potentially go both ways.
MR. BRUCK: So the record is complete, I also probably should have mentioned again, although I don't know that I needed to, but she also said she sheltered in place with her young child as a consequence --
THE COURT: That wouldn't alter my --
MR. BRUCK: And we would add that.
THE COURT: Fair enough. I would pass her at this point.
Let me just add, I don't think there's anything in the MGH association that is worrisome particularly at this stage. Not only was she not there. She works in a department that is not the E.R. She's not working with the same people. She's in a cancer testing center basically doing --
MR. BRUCK: I must say I would have gone on had I not been pretty sure that she was disqualified under Morgan. We get back to this problem with Doctor David King and the government's use of an MGH trauma surgeon at both guilt and penalty phase with the IEDs. And this links back into thinking about her sister in Afghanistan. Her connection to MGH may be -- may end up being a little more problematic than we thought.
THE COURT: Well, okay. It didn't appear so today.
I think next is 391.
MR. WEINREB: That was agreed.
THE COURT: 393.
MR. WEINREB: 393 is a government motion. Your Honor, the government would argue that this juror is substantially impaired in many ways. She -- for one thing, she really didn't seem to understand the questions that she was being asked very well, and the chief indication of that was that she seemed to be a juror who wanted very much to be a good juror, say the right thing. She was very agreeable. And as a result, she essentially answered yes to whatever anybody asked her about anything so that -- I asked a series of questions. She answered yes to all of them. The Court did; Mr. Bruck did. They were all contradictory in her answers. But I think that if you try to sort through all of that -- first of all, we'd argue that that alone substantially impairs her.
But, in addition, if you look at what she wrote on her questionnaire, before anybody was asking her questions, she indicated quite plainly that she is unable to impose the death penalty or unwilling to do so, that she's against it, and that she personally couldn't do it. In response to Question 90, she couldn't even give the Court an answer.
There's just no -- it's impossible to conclude from the -- she didn't answer it on the questionnaire. And when the Court asked her to read through all the possibilities and then pick one, she still couldn't do it. I think that there's no way to have confidence either that this person would be able to give fair consideration to aggravating factors and impose a death penalty but, moreover, that she would be a good juror in general, that she would be able to follow legal instructions. This is a case with 30 offenses. Many of them have -- the 924(c) counts, among others, are going to be very complicated in terms of how they need to be decided because of all the disagreements among the courts about what the unitive prosecution is under those statutes. There are conspiracy charges. There are other counts, like bombing a place of public use with numerous elements, not all of which are very straightforward.
And it's hard to believe that this is a juror who could deliberate well with other jurors since she doesn't seem to know her own mind, isn't able to articulate what's on her mind, can't seem to even answer questions when they're written down for her and she's given the opportunity to do a multiple choice. So there's -- we would argue that she is simply not the right juror for this case.
MR. BRUCK: Well, we think there's a little inconsistency here between this and the juror that -- whose qualification the state just supported. I don't mean to suggest that they are identical in every respect. There are obviously differences between them, but in the critical respect they're the same. They gave inconsistent responses at times. But the bottom line for this juror, while she would have a hard time predicting what she would do, which is something the Court has addressed many times over and not find to be disqualifying, she clearly stated that, if she was convinced that the death penalty was appropriate, she could vote for it; and if she wasn't, she wouldn't. That's the test.
And beyond that, this is the domain of the -- that's what the 20 peremptory challenges are for. If the government doesn't trust her to be a good juror, they know what to do. But to qualify the juror we just discussed a moment ago and then to say that this juror, who is so similar in the material respects, is unqualified, I think would be inconsistent and really quite unfair.
THE COURT: I agree that they are, on the record, that taken as a record, they are similar in many respects. They gave similar answers and vacillated similarly. I think they are completely different in the overall appreciation of them.
I really don't know what this juror thinks, whereas I think I have a sound judgment about what the other juror thinks. She seems like a very lovely lady, but -- and I think I would agree that she's trying to do the right thing. She wanted to in some extent give an answer that was the right answer to give. But I just don't know that she was giving us answers that we could rely on.
It did appear a couple of times that she was kind of puzzled about the question, but then she went ahead and answered it. I don't know whether to rely on the answer she gave in the questionnaire when she said she was a 1, and she answered 95 "no." Those could be right, but I'm not sure of that either.
I just -- she is just someone who I don't think has given us a basis for thinking that she can be a reliable juror to follow instructions. So I will excuse her. I recognize that it's -- it looks fishy given the cold record, but I rely on the different sense of them as they answered the questions. So I would excuse her.
394.
MR. WEINREB: She was excused.
THE COURT: She left, right?
MR. WEINREB: Yes. We agreed on her.
THE COURT: I remember her now. I had a blank for a minute there.
395.
MR. WEINREB: No motion.
THE COURT: Legal assistant -- legal executive assistant.
396.
MR. WEINREB: So, your Honor, the government has a motion on 396. I won't belabor this one because I think that, now that we've had some experience with jurors, we've seen two kinds of jurors who steadfastly say that they are not sure that they could impose the death penalty even in a case where they intellectually believed it was the right sentence to give.
There are jurors who simply say that because they're projecting themselves into an unfamiliar situation, and maybe nobody can say whether they could actually do it under those circumstances. And then there are jurors who are genuinely unsure because they have scruples against the death penalty that are so strong that they're really not sure they could ever overcome them in any case.
That's this juror. She made it perfectly clear that that was her outlook, that she is -- that she is a -- although she believes intellectually or in theory that the death penalty is an appropriate punishment and doesn't fault other jurors for imposing it in other cases, that because of her Catholic beliefs and other moral beliefs that she is genuinely unsure if she could ever impose it in any case.
And I think it was quite telling that the only case that she talked about in which she could potentially impose it is one in which her own children were the victims, were killed. And even then she was not able to say I could do it if it were my own kids. All she was able to say was, I'd think about it. Maybe if it was my own kids, I'd be able to think about it.
That is the -- so that, I think, is one definition of a juror who is substantially impaired in her ability to consider aggravating factors and impose the death penalty. Basically, she has to -- at a minimum, to be qualified to sit on the jury, she has to be able to follow the law, which is that she can meaningfully consider imposing the death penalty if in her intellect tells her that -- and she can't say that. All she can say is that she's skeptical of her ability to do it highlighted by the fact that it would have to be her own kids for her to even be able to say maybe.
And then on top of that, she got very emotional when she said that. And when she was pressed again about the possibility of giving it in a case where -- even where it was her own kids, she not only seemed emotional in the sense of tearing up, but she almost seemed angry just thinking about the whole issue. And I think that that is just the tip of the iceberg for her, that the prospect of personally having to impose the death penalty -- maybe it's -- I'm sure it's an emotional experience for anybody. But there can come a point when it can become too emotional and your emotions overcome you, and you're not making a decision according to the standards that you should be applying. And she is someone who I think it is reasonable to anticipate would fall into that category.
MR. BRUCK: Well, I think Question 95 has gradually led us into doing that which the Court has not allowed the parties to do, which is to, in effect, get the jurors to commit imposing the death penalty in this case because that is the way it is worded. And I think that's where we tripped up. This is another example of a juror who, looking ahead, hypothetically, right in the presence of this defendant, talking about this case, ran into this obstacle. But I think that imposes an additional hurdle that Witherspoon does not, so we'd leave it to the Court on that basis.
THE COURT: It would be interesting what -- I appreciate those issues -- but what either of you think about her life schedule, if I could put it that way? She said she worked 80 hours a week. She's taking a course at night.
MR. BRUCK: One night a week when we leave, Thursday, which is the end of the court week. 80 hours a week.
THE COURT: She looks like a person who can handle a lot.
MR. BRUCK: She does.
MR. WEINREB: I didn't think the course -- I agreed with Mr. Bruck that the timing of the course didn't seem like --
THE COURT: It wasn't so much the timing. That was fine. It was the question of an additional burden, and I don't know -- the 80 hours is probably an exaggeration but --
MR. WEINREB: Right.
THE COURT: -- obviously a busy person. Neither of you think that's an issue?
MR. WEINREB: I don't know that I would say that it's an issue in and of itself. But I think, for somebody who is already being put under, I think, is likely to be put under vast emotional stress by the decision making, it's not going to help that, on top of everything else, her busy work life, her busy home life, and her schooling, that she's now got an additional 35-hour-a-week job here in the courtroom, plus the commute, and that -- I just think we've got 1,350 jurors to choose from. We're finding plenty who are, you know, genuinely fair and impartial jurors who say that they could go either way on the death penalty, who do not have a hardship, who are otherwise qualified in every way. It just seems unfair to the government, in my view, and I think unfair to her, as the Court may be suggesting, to subject her to this process when she really doesn't seem to be qualified for it in the first place.
MR. BRUCK: I would just point out that she is one of the few jurors who or relatively few jurors who flat out said she's getting paid. So she doesn't have a hardship. Everybody is busy. I point out that she is an 8, 8(h), on her questionnaire.
MR. WEINREB: Then, your Honor, I'd also point out that -- in contrast to what Mr. Bruck said about that this was a question about whether she could impose the death penalty in this case, his last question to her was: And is the reason that you can't say beyond "I'm not sure" because you haven't heard the evidence? And she said, No, it has nothing to do with not hearing the evidence. It purely has to do with her scruples against the death penalty and her inability to say that she could do it in any case regardless of the evidence.
THE COURT: I think I have to regard her as substantially impaired. She really stuck to not sure. And I think -- I'm not sure that every "not sure" is disqualifying. It was -- in context, I think she wasn't able to tell us that she affirmatively would be open to that as a realistic possibility. I think in -- sometimes the neutral ground, the middle ground, isn't enough to be open to meaningful consideration, and so I think I have to conclude that she's substantially impaired.
399.
MR. CHAKRAVARTY: Your Honor, on 399, the government has a motion.
[REDACTED]Okay. Just to record a couple -- there's some -- I'm told there's some question whether we formally put on the record that No. 332 would be put in the excuse category. You can look that up. I don't even know who it is. I just have the number.
MS. CLARKE: 332 I show as excuse.
THE COURT: We didn't know if we put it on the record. I think everybody regards it as having been done. So it's now on the record.
318 that we suspended judgment on, I will also not qualify. That's the person whose husband worked at City Hall. Sorry Miss Conrad wasn't here to hear me say that.
MS. CLARKE: We'll tell her.
THE COURT: Just also for the record, earlier today we did -- I think we did it at the beginning. I'm pretty sure we did. 276, 357, 392, 397, 398.
I think you had previously, last week, I guess, given us through the series tomorrow, so we already have what your joint proposals were on that. We are about to dip into Panel C. Originally, we had asked everybody to do -- you know, look at A and B and give us the things you jointly agreed on and we can just scrub that. I think -- unless you've already done it -- that's a step we can skip this time because we're now in the process of identifying, say, the next hundred in the sequence. And we have been, in fact, getting from you things you look as the next day, the next day out after that. So I don't think we need a separate master list for Panel C. We've just adopted in practice what we had done on that.
MR. WEINREB: So the clerk will be giving us proposed hardship strikes from Panel C?
THE COURT: We have somebody going through them right now.
MR. WEINREB: Okay.
MS. CLARKE: Judge, we had early on exchanged Panel C once, and then we were -- both sides were looking at the return. And so we were very --
THE COURT: If you're halfway there and you don't mind going the rest, that will be fine. I don't want to impose the additional burden when we're sort of doing the same thing at this stage. If you could reduce it by any number --
MS. CLARKE: I think we are close to being ready.
THE COURT: Okay, because it may be -- maybe as soon as -- maybe as soon as Friday, I think, and, if not, certainly Tuesday that we would be in Panel C.
MS. CLARKE: Right. How far is -- how far does the Court intend to go in terms of qualifying? To 70?
THE COURT: That's the number we've been using. I know there is some sort of back strikes going on, which I haven't considered. It may depend on the outcome, you know, because we need a margin not only for that. That was one of the reasons for the margin, but for other events in people's lives that can happen.
It's late. Let me just raise this for your thought. You don't even have to -- when we get to the peremptory stage, it has occurred to me -- and I don't know whether you've talked about it -- as a method, we don't necessarily need the bodies here. It could all be conceivably done on a chart. So I don't know that there's any reason why we couldn't do that.
In a more ordinary case, particularly with much more limited voir dire here in Massachusetts, you would want to see the person again. But you have all these things, and you have your notes and everything like that. It may be efficient to do it without them and just call in the panel having been reduced by the peremptories.
MS. CLARKE: Has the Court considered how we'll do the strikes?
THE COURT: Only to think that I would follow the procedure I usually do, but I don't know if anybody wants to address that.
MS. CLARKE: Which would be?
THE COURT: No back strikes. So both sides, my typical case, you have jurors and alternates in the box. The time would come for peremptories. Counsel would come to the side. The government will go first, strike anybody in the box, two, three, four, five, however many they wanted. The defense then would strike from anybody remaining. The empty seats would be filled. Only the empty seats would be candidates for future strikes. The second round the defense would go first, followed by the government, and then we keep flipping back, and each round potentially would get narrower and so on until the process was finished.
It does raise the question about designating alternates. My usual practice, I tell lawyers -- we had a 12-person-plus-two-alternate jury. Fourteen is what we typically do. I would tell the lawyers that the alternates would be the last two seated so that they knew when they got to the last two -- say, you had -- well, they could know that those people would be designated alternates no matter where they were in the box. In other words, we don't physically separate them. It could be the juror in Seat No. 3 and the juror in Seat No. 9 could be the alternates, and they wouldn't know it. They'd just know they got seated.
MR. BRUCK: So under that system, jurors who were the last qualified could be regular jurors. We would not have a panel for the main jury and then a separate panel for the alternates?
THE COURT: Correct, that's right.
MR. BRUCK: Okay.
THE COURT: That's right. You wouldn't concentrate on 12 and then concentrate on six.
MR. BRUCK: Right. Okay.
THE COURT: The reason for that, from my point of view, is it doesn't tell the alternates who they are, that they know that they're alternates. I think that's to be avoided if we can. So anyway --
MS. CLARKE: Thank you.
THE COURT: Okay. Thank you.
(Whereupon, at 4:56 p.m. the trial recessed.)