4.Individual Voir Dire — Jurors 399 and 400
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THE COURT: Let me ask you to look at Page 20 of the form, Question 77, near the top. It's a multiple part question. And we asked you there whether, as a result of things you've seen or heard in the media or from other sources, you had formed certain opinions, including the opinion that this defendant is guilty or not guilty or that he should receive the death penalty or not receive the death penalty. And you had some boxes. You could check "yes," "no" or "unsure." And as to each of those answers you checked "unsure." Could you tell us what your reasoning was in selecting "unsure"?
JUROR: I know that bad things happen in the world. I also know that -- I've come to realize in my life that what I give my attention to is my choice. And I -- I choose very carefully what I look at and what I let into my life personally. And I choose not to listen to the news, for example. I know there's stuff out there that goes on, but you know what? It doesn't need my attention. And to be -- at the risk of sounding totally selfish, if it doesn't involve me -- I won't say I don't care, but I don't need to be involved.
So as far as whether or not -- the answer to any of these questions is really "unsure" is not correct. "I haven't thought about it" would be more correct. I just haven't given it any thought. It's none of my business. I heard things happened. I think things happen all the time, but I don't pay much attention. Honestly, the only time I turn on the news is to check the weather over the last few weeks. But other than that -- yeah, stuff goes on, but I don't need to know about it. I really don't. And so I don't have -- I would choose not to have an opinion about this. It's really none of my business.
Now, if for some reason I was on a jury or something, then it would be my business, and I would have to form an opinion. But I'll be perfectly honest with you. I don't want to say I don't care because it's not that I'm not a caring person, but this doesn't affect me, so I have no -- I have no business. I don't know.
THE COURT: As you say, if you were a juror on this case, then you would be involved, and you would have to pay attention to it. So let me just ask you a few things about that. I'm sure you realize that in a criminal prosecution if a person is accused of a crime, the person is presumed innocent, or not guilty, unless the government proves that he's guilty by the evidence at trial and proves it beyond a reasonable doubt.
JUROR: Certainly, absolutely.
THE COURT: Do you have any difficulty in faithfully applying those principles if you were a juror in this case?
JUROR: None whatsoever.
THE COURT: And if, for example, in listening to the evidence on any particular charge, you concluded that the government had failed to satisfy its burden of proving the defendant guilty beyond a reasonable doubt, would you be able to vote to find him not guilty of that charge?
JUROR: Absolutely, if I -- I would have to look at the facts and weigh the case. It's either this or that. Yes, absolutely.
THE COURT: Let me ask you to go to Page 23. Question 88 and the following questions ask about your views, if any, about the death penalty, both in general and perhaps in relation to the circumstances here. Question 88 is the general question. If you have any views on the death penalty in general, what are they? And you wrote, "I'm not sure I support the death penalty."
JUROR: I have no views on the death penalty for the same reason I have no opinion on the gentleman's guilt or not guilty. I've never been confronted with it. I've never been in a position to have to make that decision. Frankly, I would hope that I never am in the position to have to make that decision or weigh in on it. But if I did have to make the decision, I would hope that I would be able to defer to the law for my decision because I can't say what I would -- what my opinion would be. I don't know. I really don't know.
It's easy for someone to sit around the house and go, I'd do that and I'd do that. Until you're really faced with it, I don't think -- I don't know what my answer -- I haven't seen the evidence. I don't know.
THE COURT: In the next question, we asked if you could locate yourself on a sliding scale from 1 to 10, where 1 was strongly opposed because you believe the death penalty should never be imposed; and 10, in the opposite pole, you think it should be imposed whenever a defendant is convicted of intentional murder. You placed yourself at a 5 between those --
JUROR: Because I don't know. I honestly don't know. We can cite another case somewhere where a person got the death penalty; and, frankly, I didn't hear the evidence. And so I would have to say that whatever those people decided that was the best decision because I wasn't there. I mean, I'm speaking about myself. I can't -- I'm not second-guessing anybody on the death penalty issue.
THE COURT: So let's look at the next question, No. 90, on Page 24. There we asked, if you could find from the selections offered, whether there was a statement that best described your feelings about the death penalty in a case involving someone guilty of murder. And you chose (d), which is, "I am 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." Is that a fair --
JUROR: I think that's a accurate statement, yes, sir.
THE COURT: You heard me this morning talk a little bit about what the penalty phase would be like if the defendant was convicted for a crime that qualified for the death penalty. You would hear predictably some evidence of what the government would claim are aggravating factors that made this a more blameworthy murder than other murders. You would hear mitigating factors about the crime or about the defendant that the defense would argue should lead you to think that the death penalty is not the right punishment, that life imprisonment is. Would you be able to listen to all that evidence, weigh it, consider it, and then decide which of the two alternatives you would be prepared to support?
JUROR: I think it would be my obligation to do so.
THE COURT: I'm asking: Could you be able to do it?
JUROR: Yes, yes.
THE COURT: And if you look at the bottom of Page 25, Question 95, now getting more particular to this case, If you found this defendant guilty and you decided -- this is after the penalty phase -- and you decided that the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty? And you checked the box, "I'm not sure."
JUROR: Well, I think what I really meant here is I wasn't that sure about -- the question seems a little ambiguous to me, your Honor. It says, if I decided the death penalty was the appropriate punishment, could I conscientiously vote for it? Well, if I decided the death penalty is the appropriate punishment, then, obviously, I would vote for it.
THE COURT: Well, I'm not sure --
JUROR: I'm not sure --
THE COURT: That's your interpretation, and that's a reasonable interpretation of the question. And you're right. It is a little ambiguous. I think one of the things the question was getting at was: If you intellectually decided that this is the case where the death penalty would be appropriate, could you yourself actually vote to impose that? In other words, could you act on your intellectual judgment, or would you be inhibited by your personal feelings or moral objections or anything of that sort?
JUROR: I don't feel I have a particular moral objection to it, no. I think if --
THE COURT: If you thought that was the right penalty, could you vote to impose it knowing that somebody would be put to death?
JUROR: If that's what I felt was the appropriate punishment, again, I would feel obligated to do that, to vote for that.
THE COURT: We ask the other side of that question on the next page, at the top; that is, if you found this defendant guilty and you decided that life imprisonment without the possibility of release was the appropriate punishment for him, could you conscientiously vote for that punishment? And you said "yes."
JUROR: I think it would be an easier call to vote for the life imprisonment than the death penalty, yes. So that's why I answered "yes" as opposed to "unsure" on the --
THE COURT: Easier in what sense?
JUROR: The death penalty is a pretty final decision. Life imprisonment is not quite so final.
THE COURT: Follow-up?
MR. WEINREB: No, sir.
MR. BRUCK: Not from us either. Thank you. You've answered our questions.
THE COURT: Thank you, sir.
COURT CLERK: Juror No. 400.
COURT CLERK: Juror No. 400.
COURT CLERK: Sir, over here, please. Have a seat, please.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thanks for your patience.
JUROR: Yeah. No problem.
THE COURT: Have you been able to avoid discussing any of the substance of the case with people since you were last here?
JUROR: Yes.
THE COURT: And, as much as possible, avoiding news accounts touching on the subject?
JUROR: Yeah, definitely.
THE COURT: We just want to follow up on some of the answers you gave us in the questionnaire. Let's start with your job. What do you do?
JUROR: I work in, like, tech support, application support, for computers.
THE COURT: In what kind of a company?
JUROR: It's a company based out of the U.K. It's financial software.
THE COURT: So what do you do on a daily or weekly basis?
JUROR: On a daily basis, I come in. I generally work on projects. I set up software on customer servers usually in different countries.
THE COURT: Remotely?
JUROR: Remotely, yes. And also take in any support calls and stuff like that. I handle that too and then also handle the IT in the entire office.
THE COURT: How big is the work force where you are?
JUROR: Well, the Massachusetts office is nine people. The -- we're in the U.K., Australia. The U.K. is the biggest office. It has about 110 people.
THE COURT: We asked earlier in the questionnaire -- this is on Page 5, Question 10, if you want to look. We outlined what we thought the course of the case would be, and that included the prediction that it might last for three or four months. We asked if it would be an unusual hardship for you to serve on the case, and you said "no." Is that accurate?
JUROR: It is. I don't -- I mean, the only hardship would be me getting here every day. I don't have --
THE COURT: But in terms of your employment, you'd still get paid?
JUROR: Yeah, as long as I'd still get paid, that would be -- I'm pretty sure, yeah.
THE COURT: We asked about social media. You say you look at Facebook once a week or so.
JUROR: Maybe, maybe not even that much. I'm not big into that.
THE COURT: For social things?
JUROR: That's it, actually. I don't really do any social media stuff, Twitter or anything like that.
THE COURT: No. I mean, the use of Facebook is for family and friends?
JUROR: Yeah.
THE COURT: It's not business related at all?
JUROR: No, not at all.
THE COURT: We asked a little bit about people you knew who were perhaps involved in law enforcement and other particular lines of work. This is on Page 12, Question 34. You say you have a friend who is or was a Mass. state trooper.
JUROR: He is a Mass. state trooper, yeah.
THE COURT: You're not sure how long he's done that?
JUROR: Maybe ten years, around there.
THE COURT: Give us an idea of how close a friend he is.
JUROR: I grew up with him, high school, knew him in college. Still good friends with him now, but he lives farther away. He lives on the south side of Boston. I live on the north.
THE COURT: How often do you catch up with him?
JUROR: Maybe every three or four months. I talk to him maybe a couple times a month but see him, like, once every three or four months.
THE COURT: Would that have any effect on your impartiality as a juror in a criminal prosecution?
JUROR: No.
THE COURT: Do you know if he has any particular assignment or area of --
JUROR: What he does?
THE COURT: Yeah.
JUROR: He's a detective. I think he's in insurance fraud.
THE COURT: Could we do a brief sidebar?
(SIDEBAR CONFERENCE AS FOLLOWS:
[REDACTED]
THE COURT: Okay. We'll go off sidebar mode.
. . . END OF SIDEBAR CONFERENCE.)
THE COURT: If you go to Page 20, in Question 77, which is near the top of the page, we asked whether, on the basis of things you'd seen or read in the media or from other sources, you formed various opinions, 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. We had it set out that there would be a response after each of the subsections (a), (b), (c), and (d). It may be, as I look at this, you thought maybe the bottom was answering all of them.
JUROR: Yeah.
THE COURT: You checked "unsure" as to those matters. Can you tell us what you were thinking as you did that?
JUROR: Well, at the time, when I actually read that, I was thinking more -- I was unsure because I would need to see the facts in general. I don't know what really happened so --
THE COURT: You've seen some media coverage of the events?
JUROR: Right, obviously, yeah.
THE COURT: Who hasn't, I guess?
JUROR: Right, exactly.
THE COURT: But that hasn't led you to form any conclusions?
JUROR: No, no.
THE COURT: I'm sure you realize that in a criminal prosecution a person is presumed not guilty, or innocent, unless the government proves him guilty by the evidence at trial and proves that beyond a reasonable doubt. You're familiar with those principles?
JUROR: Yes.
THE COURT: Do you have any reservations about your ability to faithfully apply those principles if you were a juror in this case?
JUROR: Not at all.
THE COURT: On any particular charge you thought the government had fallen short and not had enough evidence to convince you beyond a reasonable doubt that the defendant was guilty of that charge, would you be able to vote not guilty for him on that charge?
JUROR: Yes.
THE COURT: We asked about your views about the death penalty in a series of questions beginning on Page 23, at Question 88. And that was a general question. If you have any views about the death penalty in general, what are they? You said, "I don't have any issues," I guess is --
JUROR: I don't have any issues with it.
THE COURT: Could you amplify that a little?
JUROR: Sure. If the person is found guilty and I believe they deserve the death penalty and they're up for the death penalty, I could sentence them to death, saying so. If there wasn't enough evidence, I basically could look -- I would say definitely not. I would have to be swayed one way or the other. In other words, I don't have any issues choosing one way or the other. Put it that way.
THE COURT: Okay. In the next question, we asked if you could place yourself on a scale of 1 to 10, with 1 being strongly opposed because you believe the death penalty should never be imposed, 10 being strongly in favor because you had the belief that a death penalty should be imposed whenever the defendant has been convicted of intentional murder. You selected 7.
JUROR: Yes.
THE COURT: Can you give us your thinking there?
JUROR: Sure. That's fine. I'm trying to think of my frame of mind when I said that. But 10, obviously, if you're strongly in favor, you're going to give -- you're going to look for the death penalty every time basically. I'm not looking for it every time, but I think it should be used when it's necessary versus not being used at all. Put it that way.
THE COURT: Okay. Go to the next page. We came at this in a slightly different direction this time, in Question 90, by asking if there was a statement among the ones that were offered that best described your feelings about the death penalty when someone has been proved guilty of murder. And you selected (c), which is, I'm opposed to the death penalty but vote to impose it if I believe the facts and the law in the particular case called for it.
JUROR: That doesn't make sense to me because I'm not --
THE COURT: I was going to say that's a little inconsistent about what you said. Take a minute to read through all the options to see if there's a better expression of your views.
JUROR: (e).
THE COURT: (e), which is you're 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: Yeah.
THE COURT: You heard me this morning tell you as a group that -- what the features of a penalty phase would be.
JUROR: Yes.
THE COURT: And, of course, you realize that you don't get to the penalty phase unless the jury has already convicted the person of willful murder.
JUROR: Right.
THE COURT: And that there would be a presentation of what the government would characterize as aggravating factors that would tend to support a conclusion perhaps that the death penalty was appropriate. The defense would present evidence concerning mitigating factors or circumstances that would perhaps militate against the death penalty and in favor of life imprisonment as an appropriate punishment. Then the jurors would think about all that and make their own individual decision about which they thought was the appropriate penalty.
JUROR: Okay.
THE COURT: Would you be able to do that and be open to either death penalty or life imprisonment depending on how you assessed all those factors?
JUROR: Yes.
THE COURT: If you'd look at the bottom of Page 25, Question 95, in this 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 to impose the death penalty? You said "yes." Is that accurate?
JUROR: Yes.
THE COURT: Next question on the top of the next page is a similar but different question; that is, If you found this defendant 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?
JUROR: Yes.
THE COURT: That, again, represents your view?
JUROR: It does.
MR. WEINREB: I have no questions. Thank you.
MS. CONRAD: Good afternoon. I'm sorry. One moment.
(Discussion held off the record.)
MS. CONRAD: Thank you very much. We don't have any questions.
THE COURT: Thank you. Just leave that there.
MR. CHAKRAVARTY: Your Honor, on the last juror, I'm not going to go into it. It may make sense, before we go and retire, recess for the discussion, to have a sidebar with regard to what the parties' perception is of that.
MS. CLARKE: I think we can probably talk about it and come back and advise the Court. I think we don't have an objection to the --
MR. CHAKRAVARTY: Right. At least we should be prepared to argue the merits.
MS. CLARKE: No.
THE COURT: We'll follow the usual course.
MR. CHAKRAVARTY: Fair enough.
THE COURT: So about 4:00.
(Recess taken at 3:38 p.m.)
(The Court entered the courtroom at 4:08 p.m.)