2.Individual Voir Dire — Hardship, Impartiality, and Capital Sentencing (Part 1)
486 linesTHE COURT: We're going to do 418 first.
COURT CLERK: Juror No. 418.
COURT CLERK: Juror 418.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, please. Have a seat. And do me a favor, keep your voice up and speak into the mic so everyone at the table can hear you. Okay?
JUROR: Okay.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were last here, have you been able to follow the instructions to avoid discussing the substance of the case with anyone?
JUROR: The best I could.
THE COURT: How was that?
JUROR: Well, for example, in the dental chair, they have flat-screen TVs, and I'm sitting there with things in my mouth, and all of a sudden there's news about the case.
THE COURT: All right. Okay.
So that's the questionnaire, and we're going to follow up on some of the answers you gave. I guess we'll start with the Question 10 where you had a fairly lengthy response. We would like you to tell us what you think would be the difficulty for you.
JUROR: Well, first of all, I understand the importance of doing my civic duty, and I believe my situation is -- goes beyond an inconvenience for me. The company that I work for, it's a small company. There's no one above me, there's no one below me that I can turn over my responsibilities to. So my being out of that office for four months would have a devastating effect to the business.
THE COURT: Give us some sense of size --
JUROR: An example?
THE COURT: No, give me an idea of the size of the business. How many employees, for example?
JUROR: Well, as of right now, there's 120. We're a federal government contractor, Department of Defense, and you're probably familiar with sequestration. We just heard yesterday we're having some major cuts to some of our programs, so I'm a key individual to figure out where we need to make our cuts in our overhead and G&A and things like that.
Also, because of the type of industry we're in, we have to answer to the DCAA, the Defense Contract Audit Agency. And I'm right now in the middle of giving them information for 2009, '10, '11, '12, and '13, and if I don't respond in a timely manner, they have the ability to shut us down and we can't even invoice the government for the work that we're doing. I can continue on and on of all the different things.
THE COURT: Yeah. One of the reasons we structure the schedule the way we do, to concentrate on the four days rather than five days a week, is to let people have some opportunity, particularly in business settings, to be back in the office on Fridays. Obviously it's a different way of addressing the duties, but you have Fridays, you have weekends, you have evenings, which mitigates to some extent.
So let me -- you also -- you checked on the Question 26 that you supervise people. We asked if you checked whether you supervise people. Can you tell me who and how many and so on you supervise?
JUROR: Well, in our company, we're spread out around the country, but in this office that I'm in, it's considered to be our headquarters, and we have a contracts director, we have a security officer which is a person who handles all the security clearances for our contracts, we have our human resource manager, and then we have an accountant assistant and an IT manager. I believe that's everybody in Sudbury.
THE COURT: I gather you would not be financially affected if you served on the jury. In other words, you would continue to get paid, I assume?
JUROR: I haven't addressed that. I believe so. I would think so.
THE COURT: I would think at your position in the company, in any case.
JUROR: Yeah, I would think so.
THE COURT: Okay. Let's go through some of the other things we wanted to follow up on. We have been asking people about their use of social media. You say you use Facebook daily. Check in daily, I think is what you said.
JUROR: I check in daily, but I don't -- I don't post anything. It's basically to check in -- my daughters, that's where I see the pictures and things like that. I don't -- it's not a form of communication with my friends or anything like that.
THE COURT: You have had occasion to serve on a criminal jury once before, you said about 15 years ago in the state?
JUROR: Correct.
THE COURT: Do you remember what court it was in?
JUROR: It was in Dedham. The Dedham District Court.
THE COURT: Was it a six-person jury or 12-person? Do you remember?
JUROR: I believe it was 12.
THE COURT: Okay.
So would you take a look at page 20, please? Question 77 near the top, it's a multiple-part question. We asked whether, based on things you'd seen or heard in the media or otherwise, you had formed different opinions; first, formed an opinion that the defendant is guilty or that he's not guilty or that he should receive the death penalty or not receive the death penalty, and you checked a box in answer to each of those answers.
With respect to the first, you checked "yes," that you had formed and opinion that he's guilty; "no," that he -- you'd not formed an opinion he was not guilty; and then "no," you had formed an opinion that he should not -- you had not formed an opinion that he should receive the death penalty; you had formed an opinion that he should not receive the death penalty, right?
JUROR: Clearly I'm confused.
THE COURT: Let's break it apart. Let's talk about A and B. I think your answers are -- one is the reverse of the other, and they're consistent. So in A you said you'd formed an opinion that the defendant is guilty.
JUROR: Yes.
THE COURT: Right?
And in B you said you had not formed an opinion that he was not guilty. That's because of A, I take it.
JUROR: Right. I checked the wrong box, apparently.
THE COURT: I'm not sure. I think -- but let me just ask, if you look below, later in the question it says, if you answered "yes" to any of these questions, would you be able or unable to set aside your opinion and base your opinion -- your decision about guilt solely on the evidence presented to you in court, and you said "able."
So would you tell us what you were thinking when you made that choice?
JUROR: Well, since January 5th, I've been thinking a lot about this without reading anything, just my own personal thoughts, and I'm thinking back at the time when it all transpired and where I was and everything. And I'm not sure I'm able to change my mind.
My wife is -- was a marathon runner, not this year -- I mean, not that year but in the past. We're avid -- we always attend. We were probably just lucky we weren't there because in all the previous years when we were there, we would stay right at the finish line. So we were just lucky, for whatever reason, we weren't there that year. We were involved in the town lockdowns. My niece was a mile away from the Watertown incident with the boat and everything.
So I just remember all those different things, and his pictures are there in the media. They have the video showing him dropping off the backpack at the site, the MIT murder and running over his brother. I mean, why was he fleeing? I mean, I -- it's going to be difficult.
THE COURT: Right. The question isn't really getting at whether you have seen reports about the case and therefore have some ideas about what you might be asked. It's more about whether, in serving as a juror, you could focus on the task, which is to pay attention to the evidence introduced in the case and make a decision based on the evidence.
And you've had experience as a criminal juror, so I'm sure you understand that, in our process, a person who's accused of a crime is presumed innocent unless the government proves that the person's guilty by the evidence produced at trial and proves that beyond a reasonable doubt. So what we ask jurors to do is to set aside ideas they may have, focus on the evidence that is in the case, and make a decision based on that.
And do you think you'd be able to do that or not?
JUROR: It's hard to say either way. It's hard to know.
THE COURT: Okay.
JUROR: If the evidence was compelling, perhaps I would be able to change my mind.
THE COURT: You understand that in a criminal case, the burden of proof is always with the government. The defendant doesn't have an obligation to prove he's not guilty.
JUROR: I understand.
THE COURT: The default position is not guilty --
JUROR: Right.
THE COURT: -- unless the government persuades you otherwise, right?
And the question is whether -- again, whether the jurors can insist that the government satisfied them that it has the evidence to convict the person or that, if it doesn't, they would be bound to find the person not guilty.
You don't think you're able to do that?
JUROR: I don't know, honestly.
THE COURT: Okay. We did also ask some question -- and the latter part of the Question 77 is about the death penalty, but let's turn to page 23 where we ask a series of questions more specifically about it.
Beginning with Question 88, we ask if you have any views about the death penalty in general, what are they, and you said, "I'm against the death penalty. I believe the punishment is greater by having to live with it. No possibility of release."
Could you maybe amplify on that, what your views about the death penalty in general are? If you have ideas beyond what you expressed. And I know that people were asked this sort of, perhaps, without warning.
JUROR: Right. I've been wrestling with it since the 5th. I have not come to a conclusion. I just don't know.
THE COURT: Okay. In the next question, we tried to get at it by asking you to put yourself on a scale from 1 to 10, where 1 was strongly opposed and it reflects a belief that the death penalty should never be imposed, and 10 was strongly favor and reflects a belief that the death penalty should be imposed whenever a defendant has been convicted of an intentional murder. You placed yourself at 3, which is perhaps moderately opposed. Is that --
JUROR: I would think moderately would be 5.
THE COURT: All right. A little more than moderately opposed?
JUROR: Yeah, I...
THE COURT: Well, let's go to the next question because we came at it a different way in the next question by asking you to see if there's a statement that you could agree with as representing your view, and you selected C --
JUROR: Yeah.
THE COURT: -- "I'm opposed to the death penalty but I could vote to impose it if I believed that the facts and the law in a particular case called for it." That's what you chose then.
Do you think that still represents your view? And if you want, take the time to review all of the possibilities.
(Pause.)
JUROR: It's funny how things -- at the time, obviously, on the 5th I felt C was appropriate, but after wrestling with it since early January, I think I would change that to B, as in "Bob."
THE COURT: Which is that you're opposed and would have a difficult time voting to impose it, even if the facts supported it. Is that --
JUROR: I think so.
THE COURT: Let's go to the next page, the bottom, Question 95. We asked, now in reference to this particular case, 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 "not sure."
And while you're thinking about that, let's go to the related question at the top of the next page, which says, "If you found the 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?" And you said, "Yes."
JUROR: Yes.
THE COURT: So you were affirmative on that, but you were not sure on 95?
JUROR: Right.
THE COURT: Can you tell us a little bit about that?
JUROR: Well, this relates to the previous question. I'm just not sure.
THE COURT: What is it that makes --
JUROR: I'm not sure that I could be part of this group to say death is appropriate.
THE COURT: One of the things -- and I think you're appreciating it. One of the things the question is getting at is you see one of the assumptions in the question is that you have decided that the death penalty is an appropriate punishment for him. Having made that decision, can you conscientiously vote to do it, is one of the things the question is getting at.
JUROR: I suppose if you follow all the rules and everything meets the criteria it should be, I could see why you could vote for the death penalty. If I understand this correctly, it's saying once you do that, can you actually impose it. Is that correct?
THE COURT: Right. The question is the difference between sort of a rational, intellectual decision that the death penalty is appropriate here, but whether you could conscientiously follow through and vote to be responsible for imposing it. I think that's one of the things the question gets at.
JUROR: Right. And I am not sure.
THE COURT: And can you tell us why?
JUROR: I feel that it's more appropriate to stay in jail for life and think about the crimes that they did.
THE COURT: Okay. Any follow-up questions?
MR. WEINREB: Yes, please. Good morning.
JUROR: Good morning.
MR. WEINREB: My name is Bill Weinreb. I'm one of the prosecutors. I Just want to ask you a few more questions about the death penalty question -- issue there.
So when you say that -- you said if you follow all the rules, if everything meets the criteria, then the question is could you impose it. So I want to break that into two different questions.
So the first thing is, you understand that if there is -- if the defendant is found guilty -- or in any case, not necessarily this one, but in a case where the death penalty is a possibility, if the defendant's found guilty, then there's a second phase of the trial, and that's a phase in which the government offers evidence suggesting that the death penalty is the appropriate sentence and the defense can offer evidence that the death penalty is not an appropriate sentence.
And I guess the first question is: Are you so strongly opposed to the death penalty that you'd enter that proceeding already pretty much made up in your mind that the death penalty would not be the appropriate sentence?
JUROR: Yes.
MR. WEINREB: And then moving to the -- moving to the second question, let's say that you were in the jury room and you were viewing this just as an intellectual matter -- well, I shouldn't say that. Let's just say that you're in the jury room, and you considered the evidence, and you're weighing it, and you've reached the conclusion in your mind that the case is an appropriate case for the death penalty. But now comes the time where you actually have to vote to sentence someone to death. And the question is: Could you do that, in any case?
JUROR: I -- I don't know. I don't think so.
MR. WEINREB: Thank you.
MS. CONRAD: Good morning, sir. My name is Miriam Conrad.
You said that you thought life without parole was most appropriate in this case. But the question really is whether -- understanding that a juror never is required to vote for the death penalty, whether you could listen to the evidence and listen to the arguments by both sides and consider both options before deciding which penalty is most appropriate?
JUROR: I believe I could do that.
MS. CONRAD: And if there were a case -- not necessarily this case -- but if there were a case where, after listening to all the evidence, you decided, as a personal, individual matter, that the death penalty was the most appropriate penalty, could you vote for the death penalty? Again, not in this case; in any case that...
JUROR: I don't know. I honestly don't know. I've been wrestling with that for a month and a half now. I don't know.
MS. CONRAD: And you said that you've been thinking about this a lot since you filled out this form. And can you tell us a little bit more about how or why your thinking has changed from what you put down on your form?
JUROR: Well, the time when the questionnaire was given to me, it was the first time I saw questions like that, and you need to respond immediately without a lot of time to think about it. So since I've completed it, I've been thinking about a lot of these questions.
MS. CONRAD: So I guess what I'm wondering, though, is what are some of the thoughts that you've had since then that have caused you to change your answer?
JUROR: Well, I've never been faced with having to come to a conclusion, in my mind, whether I could, in fact, impose -- agree to impose someone to death on actions that they've done. And I still have not come to a conclusion if I -- even listening to all the facts, I just don't know. If it came down to it, I just don't know.
MS. CONRAD: But you would be able to listen to all the facts and to consider the views of the other jurors?
MR. WEINREB: Objection.
THE COURT: You may answer that. It was leading, but that's all right. Go ahead. You could answer it.
JUROR: Could you repeat the question, please?
MS. CONRAD: Sure.
THE COURT: Why don't you rephrase it, since he's asked you to...
MS. CONRAD: Sure. Okay.
Can you tell us whether you would be able to listen to all of the facts, the arguments of both parties, and discuss with your fellow jurors their views before reaching a conclusion?
JUROR: Maybe I'm a little confused. I mean, I feel there's the --
MS. CONRAD: I'm not trying to confuse you, sir. I'm sorry if I am.
JUROR: Well, you know, I -- I can, you know, listen to all the different sides and -- I believe, and can understand that, based on those facts, you could make a decision either way and say it comes out that the decision should be that the evidence proves that the death penalty is appropriate. I just don't know if I would be able to go along with imposing it. Does that answer your question?
MS. CONRAD: Yes, but let me just push that a little bit further. It would still be your decision whether the death penalty was appropriate or not. It's not a question of looking at all the evidence and that dictates the answer. The question is whether you could consider all of those things before making up your mind one way or the other.
JUROR: I'm not sure.
MS. CONRAD: Thank you very much.
THE COURT: All right, sir. Thank you. That's it. We'll put the form back together; just leave it. Thanks.
COURT CLERK: Right this way.
(The juror exits the courtroom.)
COURT CLERK: Juror No. 406.
COURT CLERK: Juror 406.
(The juror enters the courtroom.)
COURT CLERK: Ma'am, over here, please. Have a seat.
JUROR: Thank you.
COURT CLERK: If you would do me a favor, keep your voice up, speak into the mic so everyone around the table can hear you, okay?
JUROR: Sure.
COURT CLERK: Thank you.
THE COURT: Good morning.
JUROR: Good morning.
THE COURT: Since you were here to fill out the questionnaire, have you been able to follow the instructions to avoid talking about the case with anybody and also to avoid media coverage, if you could?
JUROR: Yes.
THE COURT: So we're going to follow up a little bit on some of the things you told us in your answers to the questionnaire.
JUROR: Sure.
THE COURT: Could you give us a little bit of an idea what your work life is like.
JUROR: I'm in pharmaceutical sales. I work for a contract company that's affiliated with a major pharmaceutical company. That was actually one of my concerns because I am a contract employee.
THE COURT: What does that mean?
JUROR: Well, we're affiliated with one of the major pharma companies, but I don't work for the manufacturer directly. So I work for -- I don't want to say the name because I don't want to broadcast.
THE COURT: Yeah.
JUROR: But one of my concerns was I asked regarding jury duty, you know, what are the ramifications, will I get paid, will I hold my job. They will pay me for 20 days, and that's it. So that was one of my concerns.
THE COURT: How -- how are you normally paid? Is it a salary or is it --
JUROR: Salary.
THE COURT: -- commission-based or --
JUROR: Salary and commission. So I get paid twice a month.
THE COURT: How does that balance?
JUROR: Monetarily?
THE COURT: Yeah. Yeah. What percentage of your gross would be salary versus commission or vice versa?
JUROR: I make a very -- a very good salary. Commission is nominal.
THE COURT: All right.
JUROR: It could be --
THE COURT: All right.
JUROR: I don't know what the percentage is.
THE COURT: I'm trying to get the balance. Balanced heavily towards the salary?
JUROR: Yes.
THE COURT: And the company has told you that --
JUROR: Their policy, because I'm a contract employee, would be to pay for 20 days, and then after that there would be no pay. So that's a concern. I have a son in college.
THE COURT: All right. I don't think we're going to ask you to do that.
JUROR: Okay.
THE COURT: Thank you.
JUROR: Thank you.
(The juror exits the courtroom.)
THE COURT: 412 is coming tomorrow.
COURT CLERK: Juror No. 413.
COURT CLERK: Juror 413.
(The juror enters the courtroom.)
COURT CLERK: Sir, over here, please. Have a seat. And do me a favor, keep your voice up and speak into the mic so everyone around here can hear you.
JUROR: Yes, sir.
THE COURT: Good morning.
JUROR: Good morning, sir.
THE COURT: Have you been able to avoid discussing the case with anyone since the last time you were here?
JUROR: Yes, sir.
THE COURT: And as well to avoid any media about the case?
JUROR: Yes, sir.
THE COURT: Tell us a little bit about your work.
JUROR: I'm an orthopedic physician's assistant. I work for Harvard Vanguard.
THE COURT: What does that mean? What do you do?
JUROR: Orthopedic PA. Basically I manage -- largely the PA's job at Harvard Vanguard is taking care of sort of the older, complicated cases that don't need surgery: broken legs, ankles, wrist sprains, back pain, bursitis.
THE COURT: You treat those conditions or --
JUROR: Yes, sir. Injections. I also am an operative PA, so I operate on Thursdays with one of the sports medicine doctors.
THE COURT: Okay. You don't use social media, one of the questions we asked.
JUROR: Honest to God, I have never been on Facebook. I don't even know what it is. Twitter, same deal. I have an old teeny cell phone. I never use that, though.
THE COURT: Okay. Let me ask you -- that's the questionnaire you filled out. And I'm going to ask you to follow up on some things you told us in the questionnaire.
JUROR: Yes, sir.
THE COURT: If you look at page 20, Question 77 near the top.
JUROR: Uh-huh.
THE COURT: Here we asked whether, when you filled out the questionnaire, as a result of things you'd seen or read in the media or elsewise, had you formed an opinion that the defendant was guilty or that he should receive the death penalty, and you answered Part A, yes, you thought -- you had an opinion that he was guilty.
JUROR: Yes, sir.
THE COURT: And you didn't answer to B or C --
JUROR: Sorry.
THE COURT: -- but you answered D that you had an opinion that he should not receive the death penalty?
JUROR: I do not believe in the death penalty under any circumstances, so I'd have to say that's a yes.
THE COURT: Okay. And you actually wrote that in Question 78, you said that.
Let me turn to the -- we asked a series of questions to gauge people's view of the death penalty. If you go to page 23, we asked in Question 88 for your general view, and you said, "I do not believe in the death penalty under any circumstances." I think that's almost exactly what you just said --
JUROR: Yes, sir.
THE COURT: -- a minute or two ago.
In the next question, we asked if you could put yourself on a scale of 1 to 10, with 1 being strongly opposed and reflecting a belief that the death penalty should never be imposed, as opposed to the other end of the spectrum, strongly in favor, where it should be routinely imposed.
You selected 1?
JUROR: That is correct.
THE COURT: Okay. And if you'd go to the next page, and Question 90, here, rather than asking for a number, we asked you to find a statement, if there was one, that you thought represented your view as to the death penalty.
JUROR: Yes, sir.
THE COURT: And you selected A, "I'm opposed to the death penalty and will never vote to impose it in any case, no matter what the facts."
JUROR: Yes, sir.
THE COURT: That's your view?
JUROR: Yes, sir.
THE COURT: Go to page 25 at the bottom, Question 95. We asked, now in reference to this case, if you found this defendant guilty and you decided the death penalty was the appropriate punishment for him, could you conscientiously vote for the death penalty --
JUROR: No, I could not.
THE COURT: -- and you said no. Right.
Okay. Any follow-up?
MR. WEINREB: No, your Honor.
MR. BRUCK: Just very briefly, if I may. My name is David Bruck, and I'm one of Jahar Tsarnaev's attorneys.
And what I want to explore with you about the death penalty is whether there is any distance between your own firmly held belief, which I certainly appreciate, and your ability to do your duty as a juror, because they could be two different things.
This is my question: Understanding that you oppose the death penalty under all circumstances, would you be able to serve on a jury and fairly consider both of the alternatives that are available under the law as jurors on a jury are required to do, the death penalty or life imprisonment, assuming, of course, that the defendant was first convicted of a capital crime? Could you consider them both?
JUROR: I'm a citizen of the United States. If I vote to put somebody to death, I'm essentially, by proxy, putting that person to death. I've spent my entire life trying to make people better and healthy. I could never do that under any circumstances.
MR. BRUCK: All right. Thank you.
THE COURT: Thank you, sir.
JUROR: I'm done?
THE COURT: Yes. You have the questionnaire? Just leave it right there. Thanks.
(The juror exits the courtroom.)
THE COURT: 414 we're skipping, so we'll go to 419.
COURT CLERK: Juror No. 419.
[REDACTED]
THE COURT: I think we should briefly be sidebar.
Sidebar, please.
COURT CLERK: Cut it.
MR. DOREAU: Cutting video and audio.
(Discussion at sidebar and out of the hearing of the jury:)
[REDACTED]
THE COURT: We're going to pass on Mr. 419.
MS. CLARKE: Mr. 419.
COURT CLERK: Are we ready to go back on?
THE COURT: Yeah. Let me just get organized here. 421 we have passed, so we're up to 423.
Yes, we'll go back on.
COURT CLERK: Phil, back on.
MR. DOREAU: Audio back on.
(In open court:)
COURT CLERK: Next up is 423.
COURT CLERK: Juror No. 423.
COURT CLERK: Sir, over here, please. Have a seat.
JUROR: Thank you.
COURT CLERK: If you could do me a favor, keep your voice up, speak into the mic so everybody can hear you, okay?
JUROR: Okay.
THE COURT: Good afternoon.
JUROR: Good afternoon, sir.
THE COURT: Have you been able to follow my instructions not to discuss the substance of the case with anyone?
JUROR: Yes, sir.
THE COURT: And try to avoid media accounts as best you could?
JUROR: I've tried.
THE COURT: I know they're everywhere, but you've put them aside if you see them?
JUROR: Yes.
THE COURT: So we're going to follow up on some of the things you told us in the questionnaire.
JUROR: Okay.
THE COURT: And so you have it there if you want to look. Tell us a little -- you're now retired?
JUROR: Yes, I am.
THE COURT: And tell us what -- briefly what you did before you retired.
JUROR: I was a banker, commercial loan officer at the First National Bank of Boston for 20-plus years, and then continued that lending career with a small company that financed equipment for venture-capital-backed companies. So I've been in finance all of my life.
THE COURT: We asked about you or family or friends, connections with the military, and you told us your son was in the Marine Corps for about a dozen years, 2002 to 2014?
JUROR: Yes.
THE COURT: So he's out now, I gather?
JUROR: Yes, he's just out.
THE COURT: Okay. And I think you told us he served three tours in Iraq?
JUROR: Yes, he had three combat tours in Iraq as an infantry officer and fortunately returned intact, although a lot of his friends did not.
THE COURT: When was the last of those three tours, do you remember?
JUROR: I don't know -- I don't remember.
THE COURT: In Question 34 we asked about relationship with law enforcement agencies, and you said, "Son: Police, 2014." Is that the same son?
JUROR: Yes.
THE COURT: So --
JUROR: Yes. He was applying for jobs when he got out of the Marine Corps, and one of them was -- he applied for the police force in California. He did not get that job and has subsequently gone to work for a defense contractor in the Washington, D.C., area.
THE COURT: Okay. We asked -- this is at page 14. We asked a series of questions about -- 44, 45, and 46, about whether you had strongly positive or negative views about prosecutors, defense attorneys, or law enforcement officers. Do you remember that series? You said "none" with respect to defense attorneys or law enforcement officers, but with respect to prosecutors, you said, "I believe some prosecutors have too much power/discretion."
What were you thinking that led you to write that?
JUROR: Well, I was thinking that I have learned, and I can't cite specifics, that prosecutors have enormous power to -- in our system, and occasionally I will read -- read about folks that have gotten out of prison after being wrongly convicted because of new DNA evidence or other evidence, and sometimes it's because the prosecutors made mistakes. And so I think that's what I was thinking of.
THE COURT: Okay. Are these views that you developed mainly through reading about cases in the media or --
JUROR: Yes.
THE COURT: Rather than personal experience?
JUROR: I've had no personal experience.
THE COURT: Okay. You're an officer of the Trinity Church in Boston?
JUROR: Yes, sir. I'm its treasurer.
THE COURT: How long have you been an officer?
JUROR: Since 2012.
THE COURT: Okay. That's obviously in Copley Square and nearby the events. Were you or the church affected in some way by the events?
JUROR: The church was closed down for several days after the bombing. I guess it was part of the crime scene, so the church was unavailable. And a number of friends were spectators, some were runners, so it was an active presence. And I'm there quite frequently, so I'm in that area, so I have -- I go by the bomb sites, you know, on -- on Boylston.
THE COURT: Let me ask you to turn to page 20, Question 77, and near the top.
JUROR: Okay.
THE COURT: It's a multi-part question. We asked whether -- as a result of things you'd seen or heard from the media or elsewise, whether you had various opinions, and you said, yes, you had an opinion that the defendant was guilty, and then further down, yes, you had an opinion that he should not receive the death penalty.
Let me ask you about the first one -- well, let me go to the next -- right after that series of subparts, there's a separate paragraph that says, "If you answered yes to any of these questions, would you be able or unable to set aside your opinion and base your decision about guilt or punishment solely on the evidence that would be presented to you in court?" And you selected the box "unable."
Could you tell us about that?
JUROR: I assume, like many people, I observed the defendant on videotape carrying the backpack on Boylston Street with his brother. I saw at least the news clips of him either in the boat or emerging from the boat. So it's hard to -- it's hard to believe that he wasn't responsible for these crimes.
THE COURT: Uh-huh. It's understandable under the circumstances that people have ideas about what happened and so on. What we ask jurors in the criminal process to do is to follow some principles of law, one of which is that the defendant is presumed innocent or not guilty unless the government proves that he's guilty by the evidence at trial. And so therefore we ask jurors to focus on that body of evidence that is in the trial and see what that proves or doesn't prove.
JUROR: Right.
THE COURT: Would you be able to do that?
(Pause.)
JUROR: Well, you're a persuasive fellow.
(Laughter.)
JUROR: Having heard it stated the way you stated it, I think I probably could.
THE COURT: Okay. Let me ask you about Question 80. You have a friend who was in the stands and I guess right by the --
JUROR: Yes.
THE COURT: -- that's where they were, right by the finish line -- when the explosions happened. I'm having a little difficulty with the handwriting.
JUROR: Yeah, it was -- after 20 pages, it was beginning to go.
THE COURT: That's all right. We understand. And we know the conditions were not optimal as you filled it out.
But can you tell us about that, what your friend experienced.
JUROR: Yeah, I remember talking to her about it. She was one of my Trinity friends who had -- was in the stands, and she was -- heard the explosion. Her daughter was with her, and they were able to make their way out of the stands and out of the area without any -- without any -- they didn't get hurt, but it just scared the hell out of them.
THE COURT: How old is her daughter?
JUROR: She is now 12, I believe.
THE COURT: On the next page, in 82, you told us you bought some T-shirts with Boston Strong logos?
JUROR: Yes.
THE COURT: Lots, a few?
JUROR: No, I think a couple of T-shirts. I have got two sons. I think I sent them to the boys.
THE COURT: We asked, beginning on page 23, at Question 88, a series of questions about jurors' thoughts or attitudes toward the death penalty. And I want to turn to those.
In Question 88 we asked if you had views about the death penalty in general, what are they, and you said you do not believe in the death penalty; that we are to follow "thou shall not kill" and would have a more peaceful society if we did.
Can you elaborate on that or let it stand as is?
JUROR: Sure. I have come to take my faith as a Christian more and more seriously as I've gotten older, and I -- I'm very grateful to Trinity Church for helping me do that. And what I wrote here, I firmly believe.
A second thing that informs this belief, Judge, is that -- in a sense is my military experience or -- you know, I served in the military for a couple of years during the Vietnam era. I didn't -- I wasn't in Vietnam, fortunately, but I knew many people who were. And as you know, tens of thousands of people -- U.S. soldiers were killed in that effort, in my opinion, for little good. I watched my son volunteer to go in the Marines and into Iraq, and while he is whole, many of his friends have been -- were killed or maimed, in my belief, for little purpose.
I think there's been too much killing during my lifetime, and I'm not prepared to participate in any more, particularly when, if this defendant is found guilty, there's an alternative, which is life in prison without a chance of release, as you've just told us.
So I am not going to participate in any process that kills anybody if I can help it.
THE COURT: Okay. Any follow-up questions?
MR. WEINREB: No, your Honor.
MS. CONRAD: No, your Honor.
THE COURT: Thank you very much.
JUROR: Thank you.
THE COURT: Just leave the paper there. That's fine.
COURT CLERK: Thank you.
(The juror exits the courtroom.)
COURT CLERK: Juror No. 425.
COURT CLERK: Juror No. 425.
(The juror enters the courtroom.)
COURT CLERK: Have a seat.
JUROR: Hi.
THE COURT: Hi.
COURT CLERK: And do me a favor, keep your voice up and speak into the mic so everyone can hear you.
JUROR: Yes.
THE COURT: So since you were last here, have you been able to avoid discussion of the substance of the case with people?
JUROR: Yes.
THE COURT: And also, as much as possible, avoid any media reporting on the case?
JUROR: Yes.
THE COURT: We have the questionnaire, copies, and that's your original. We just wanted to follow up on some of the answers you've given us.
Tell us a little bit about your work.
JUROR: I am a history teacher and a special education teacher at Lexington High School. I've been there for six years now, and I've been teaching since I've been 21, and I'm 47.
THE COURT: Okay. We asked jurors about social media. You don't use it.
JUROR: I don't do any social media whatsoever.
THE COURT: We asked also whether you were a published or unpublished author. This is in Question 28 on page 10.
JUROR: Yes.
THE COURT: I can't quite read all the handwriting.
JUROR: I wrote some short stories that were never published, science fiction and an adventure one when I was younger, sort of like an Indiana Jones thing, yeah.
THE COURT: Let me ask you to look at page 20 and Question 77. In this multi-part question, we had asked whether you had formed various opinions based on things you had seen or read in the media or learned from other sources about whether the defendant was guilty or not or should receive the death penalty or not, and to each of the subparts you indicated your answer was "unsure."
JUROR: Correct.
THE COURT: Could you tell us about that?
JUROR: I'm unsure because I do not know all the evidence or have all the information at my fingertips, and I don't believe everything that's printed in the news or heard on the radio. So that's why -- and I -- as a teacher and a history teacher, I firmly believe someone's innocent until proven guilty and all the facts are before him or her as a juror. So that's why.
THE COURT: So you're right. That is the law, that a person accused of a crime is presumed to be innocent and is convicted only if the government persuades the jury by -- that he is guilty beyond a reasonable doubt, by the evidence at trial.
So you would be able to make your decision about whether the defendant was guilty or not guilty of any particular crime based on your assessment of the trial evidence and --
JUROR: Correct.
THE COURT: -- nothing else?
JUROR: Correct.
THE COURT: We asked jurors a series of questions about their attitudes towards the death penalty, both in general and perhaps in this case as well. That begins on page 23 at Question 88. Question 88 itself asks for general views about the death penalty, and you said "none."
JUROR: I personally believe it's a case-by-case basis. I don't think it can be painted with a broad brush one way or the other, and I do believe people are entitled to a trial, and it depends on the evidence and whether or not the state allows it or, if it's in a federal case, whether or not it's warranted. So that's my stance on it. I really can't say one way or another, yes, definitively, I think in all cases people deserve it or not. I think it has to go case by case.
THE COURT: Okay. And if you look at your answer to Question 89, that's more or less what you indicated there?
JUROR: Yes.
THE COURT: And said you didn't think you could place yourself on the scale because it's --
JUROR: Correct. And then on the next page, you had actually -- you had a more -- of a definitive scale, in between, so --
THE COURT: Right. And that question, Number 90, it shows option D of the various statements.
JUROR: Yes.
THE COURT: And that is that you're not for or against the death penalty?
JUROR: In the middle.
THE COURT: You could vote to impose it or you could vote to impose a sentence of life in prison instead --
JUROR: Correct.
THE COURT: -- whichever you thought was called for by the facts in the case.
JUROR: Correct. That's absolutely right.
THE COURT: That's a good statement of your views?
JUROR: Yes, it mixed, what I wrote in my little chicken scratch.
THE COURT: Let me just ask you about Question 95 at the bottom of 25. There we put it in the context of this case and said, if you found Mr. Tsarnaev guilty and you decided the death penalty was the appropriate punishment for him, could you conscientiously vote to impose the death penalty?
JUROR: Yes.
THE COURT: And similarly, the next page at the top, we asked if you found Mr. Tsarnaev guilty and you decided that life in prison without the possibility of release was the appropriate punishment for him, could you conscientiously vote for life in prison without the possibility of release?
JUROR: Yes.
THE COURT: And those remain your answers?
JUROR: Yes.
THE COURT: Follow-up?
MR. MELLIN: Thank you, your Honor.
Good afternoon, sir. I'm Steve Mellin. I'm one of the prosecutors on the case.
I want to try to drill down just a little bit on the death penalty issues. You've had a little bit of time since filling out this questionnaire to think about it, I'm sure, and as a history teacher, I would think that at some point it's kind of been some topic for you, or not?
JUROR: No, it hasn't been a topic because I teach world history, and we teach U.S. history, and none of the stuff we've covered has covered cases involving death penalties.
MR. MELLIN: Okay. As you sit here today, can you elaborate a little bit on kind of where you come down on whether or not we should have a death penalty, should not have a death penalty?
JUROR: I think it's a state-by-state issue, not a federal one, in my opinion. I think that's up to the states to decide. I know in the federal area it is. But, again, I have to go back to what I wrote. It's on a case-by-case basis. I would have to look at the evidence and have to come to the very strong conclusions beyond a reasonable doubt that it warrants the death penalty. There's been many cases that I've read about that DNA has, you know, been wrong or other things, and so you have to tread lightly on that.
MR. MELLIN: Okay. If you were a juror on this case and the jury got to the point where the jury was deciding between life and death and you believed that the evidence in the case supported the death penalty, would you be able to vote to sentence someone to death?
MS. CLARKE: I object to "this case," your Honor. That's a stakeout question.
THE COURT: Yeah, yeah.
MR. MELLIN: In any case.
THE COURT: Make it a more general question. Correct. Why don't you start again.
MR. MELLIN: I will.
If you were a juror on a case in which the death penalty was a consideration and the jury reached the point where the jury was deciding between life and death, if you heard all of that evidence and you believed that the death penalty was appropriate, would you be able to vote to sentence someone to death?
JUROR: Yes, I could. So long as the other 11 people I worked with came to the same conclusion, then yes.
MR. MELLIN: You understand from a little bit of the instructions this morning, though, that ultimately it's a personal decision for each of the jurors. You understand that?
JUROR: Yes, to come to a consensus.
MR. MELLIN: And so I take from what you're saying that you would deliberate with the other jurors and --
JUROR: Of course.
MR. MELLIN: Okay. But you believe that if you came to that conclusion, you would be able to vote to impose the death penalty?
JUROR: Yes.
MR. MELLIN: Thank you.
MS. CLARKE: Good afternoon.
JUROR: Good afternoon.
MS. CLARKE: My name is Judy Clarke. I'm one of --
JUROR: Nice to meet you.
MS. CLARKE: -- Mr. Tsarnaev's lawyers.
Good to meet you too.
If I could just spend a little time with you asking you some questions. On Question 77, which the judge pointed you to on page --
JUROR: Question 77 you're referring to?
MS. CONRAD: Yes. Page 20.
THE COURT: Page 20.
MS. CONRAD: And you marked "unsure," "unsure," and understandably. You don't have the evidence in front of you. Have you ever had an opinion as to Mr. Tsarnaev's guilt?
JUROR: No, I didn't pay much attention to it in the media. I heard about the bombing, I heard that they arrested two individuals, and when it would come on the news, I would usually turn it and wasn't that interested in hearing much follow-up about it. I figured the police would follow through with what they need to do and...
MS. CLARKE: I'm sorry?
JUROR: That the police would follow through with the case and take care of it, so I didn't pay much attention to it after that.
MS. CLARKE: What else do you recall hearing or reading about the case in the media?
JUROR: I would just see clips on TV. I didn't read anything about it in the papers. I don't read the Globe or the Herald or -- I would just hear sometimes stuff on the radio and things like that, and on the news, just clips.
MS. CLARKE: Can you recall what that might have been?
MR. WEINREB: Objection.
THE COURT: Yeah, I don't think we have to go into it.
MS. CLARKE: There were a series of questions -- I think it started at the bottom of page 20, with 80, 81, 82, and it carried over into 83 about what sort of impact this -- the bombings and the events of that week might have had on people, and you marked "no." But they were pretty specific to personally affected, witnessed the bombing.
Can you tell us if you were affected in any way by the events of that week?
JUROR: Not personally. No immediate family, no friends, no one that I knew was affected by the bombings.
MS. CLARKE: Did you talk to anybody about the bombings or the events of that week?
JUROR: I talked to my cousin. He's a fireman in Everett, and asked him about it, and he just reaffirmed that, yes, there's been a bombing, and I asked him if he was there, and he said no, he wasn't there that day.
MS. CLARKE: Did he participate in any of the aftermath?
JUROR: No, no.
MS. CONRAD: Where were you on 15th of April, the day of the bombing?
JUROR: I was home. Home in Littleton, Mass.
MS. CLARKE: Okay. And how did you learn about the bombing?
JUROR: I think the TV, news.
MS. CLARKE: Just happened to see it on the news --
JUROR: Yeah.
MS. CONRAD: -- or followed it live?
JUROR: No, I didn't follow it. I just saw it on the news.
MS. CLARKE: Have you ever had any connection to the marathon? Do you go to the event?
JUROR: No, I try to avoid Boston on that day. I used to go to school at BU, so I...
MS. CLARKE: So you know what it's like.
JUROR: Yeah, I don't want to be in here.
MS. CLARKE: And where were you on the 19th of April? And you know what the significance of that day is, that's the shelter-in-place day and -- and the day of the --
JUROR: I know I wasn't near Boston. I know that. I can't recall. But I was probably home, or if it was a workday, I was at -- oh, was that vacation week?
THE COURT: Yeah.
MS. CLARKE: I think it might have been.
JUROR: I was home, then, with my daughters.
MS. CLARKE: And your kids are how old?
JUROR: I have two 13-year-olds, a 14-year-old, and a 12-year-old. Four girls.
MS. CLARKE: Congratulations.
JUROR: Thank you.
MS. CLARKE: Good luck.
JUROR: Yeah. Very busy.
MS. CLARKE: It's interesting on your views about the death penalty. It sounds like maybe January 5th was the first time you really gave that issue much thought?
JUROR: Uh-huh.
MS. CLARKE: Is that right?
JUROR: Yeah, I don't think about the case, you know. It's not of interest to me, so I didn't -- the case itself is not something of interest where I would hear it on the radio and stop and listen or do something or on the TV. So, yes, when the questionnaire came out, and I had to fill this out...
MS. CLARKE: Right. Not so much the case but the death penalty as a social issue, a political issue.
JUROR: Oh, as a social issue? No, I don't give too much thought about it.
MS. CLARKE: So January 5th was really the first time you had been asked what are your views about --
JUROR: Directly asked, yes. Like, what do you, [REDACTED], feel about this? What would you do in this case? Yeah.
MS. CLARKE: Well, you live in Massachusetts, which is a state that does not have --
JUROR: -- have the death penalty. Correct.
MS. CLARKE: And how do you feel about that?
JUROR: That's what the people want, that's what the legislators vote for, so that's the law. I'm not upset about it, or it doesn't bother me one way or the other.
MS. CLARKE: One way or another. Since January 5th, and I think Mr. Mellin alluded to it, have you given more thought to your position on the death penalty? Not with regard to the case, but your position about the death penalty, period.
JUROR: No. It's right where -- the neutral area where I am. It just depends on the evidence. I could go one way or the other depending on the evidence on any case, so long as the evidence warrants one way or the other.
MS. CLARKE: And I guess you realize that it's an individual sort of reasoned moral judgment --
JUROR: Correct.
MS. CLARKE: -- that each individual gets to make. And I guess what we're all sort of trying to get at is, are you able to make the decision one way or the other?
JUROR: Yes.
MS. CLARKE: Without hesitation?
JUROR: Without hesitation, yes.
MS. CLARKE: Your kids are all school age?
JUROR: Correct.
MS. CLARKE: And did you talk to them about the bombing and what that meant?
JUROR: No. No.
MS. CLARKE: Did they come home and say, "Dad, what is that all about?"
MR. MELLIN: Objection.
THE COURT: Yeah, I think the answer is sufficient.
MS. CLARKE: Did it get discussed in your class?
JUROR: God, I can't remember. Did it? Not that I recall because it was over vacation; we came back. I don't -- I mean, there was talk of it in the teachers', of course, lounge, but I don't remember it being addressed in any of the classes that I co-teach in.
MS. CLARKE: Not a topic that the teachers would bring up and sort of address?
JUROR: No. No, we didn't talk about it.
MS. CLARKE: In your world history, do you cover any Russia, Chechnya, Kyrgyzstan, Kazakhstan, that sort of area of the world?
JUROR: World History 2, no. World History 2 -- we might in World History 2, when we get into World War I and World War II.
MS. CLARKE: Any of the Chechen wars?
JUROR: No.
MS. CLARKE: That's just not a topic that's --
JUROR: -- popular in our curriculum? No, it's not in there.
MS. CLARKE: Can I have just one moment, Judge?
(Counsel confer off the record.)
MS. CLARKE: I guess I have one more follow-up question, if I can.
JUROR: Sure.
MS. CONRAD: It's my understanding that most of the schools had events supporting the One Fund or doing something with regard to the marathon. Did your kids' schools do that or your -- the school where you teach?
JUROR: Not -- I don't think we did it at Lexington. I can't recall them doing that or seeing any of the students or going around in homeroom with any of that. And the only thing my kids had at their school in Littleton is UNICEF that they do drives for.
MS. CLARKE: But nothing --
JUROR: I don't remember anything with the One Fund or anything like that.
MS. CLARKE: Thank you.
JUROR: You're welcome.
THE COURT: All right, sir. Thank you very much.
JUROR: Oh, thank you.
(The juror exits the courtroom.)
MR. WEINREB: Before we call the next witness, can I raise one quick thing? It's not sidebar.
THE COURT: Okay.
MR. WEINREB: I just want to point out the objection -- Mr. Mellin asked a question to which there was an objection by Ms. Clarke that it was a stakeout question because it asked about this case in particular, but I believe the question he asked was nearly verbatim Question No. 95. And regardless of how we may characterize it now, 95 and 96 were agreed-upon questions by the parties. And I think, at least to those two questions, any objection should be deemed waived or we can't follow up on them.
THE COURT: Okay. I don't remember the phrasing of the question, but --
MS. CLARKE: That's not how I heard it.
THE COURT: -- we have been asking 95 and 96 consistently. Any question that was tracking that would be okay.
427.
COURT CLERK: Juror No. 427.
THE COURT: Can I just have a minute before --
COURT CLERK: Hold on.
THE COURT: I guess let's make this a quick sidebar, I think.
MR. DOREAU: Audio off.
(Discussion at sidebar and out of the hearing of the jury:)
THE COURT: This was one that was proposed jointly, I think, by the parties this morning, and I took a look at it. The reason that it was suggested to me for the parties' view, which may or may not be right, was that in Question 85 the juror recognized somebody on the witness list.
If that was the reason, I just wanted to discuss that a little. It seems to me that it's not necessarily a binary yes-or-no question. It may well depend on who the witness is, how likely the witness is to testify, how close the relationship is and so on. So I think it deserves examination when that's the only one. We had a second one, I think it was 428, who knew a witness but also had a hardship, and I thought the hardship was sufficient.
But -- so going forward, I would like to maybe, mostly from the government, know the likelihood of such a person actually being a witness in the trial, and then we can explore how close the relationship is and whether it would have an effect and so on and so forth. So I just wanted to make that comment before we go.
MR. WEINREB: Yes.
MS. CLARKE: For this one, Bill, 895 is [REDACTED].
THE COURT: A Boston police officer?
MR. MELLIN: I don't believe he's going to be a witness.
MR. WEINREB: I'm not sure.
THE COURT: So if that was --
MS. CLARKE: We should come together more often.
THE COURT: We can whittle down the witness list.
MR. WEINREB: I also agree that whether an affirmative answer to Question 85 should -- disqualifies a juror or not should depend on the factors the Court articulated.
THE COURT: Right. I wanted to, I guess, provide that guidance. That's my view. And if that -- we haven't really seen very many who recognize people on the witness list. I would say half a dozen at most. So it's not going to be a big problem, but I just wanted to explain why I wanted this held in the --
MS. CLARKE: We have got another one coming up at the end of the day.
THE COURT: Oh, we do? Well, we'll get --
MS. CONRAD: They know a victim.
MS. CLARKE: No, 437 knows a pretty major witness.
THE COURT: Okay. Well, I'll look at that.
Okay. We're ready to go back on live.
COURT CLERK: Back on, Phil.
MR. DOREAU: Audio on.