4.Juror Challenges — Juror 427 Struck; Jurors 425 and 429 Retained

MR. BRUCK: Is this correct?

Yes, that's correct. No argument. Yes, we have no bananas.

MR. BRUCK: The defense has a motion on this juror. This is based on the cumulative amount of indications of potential bias. I want to begin by saying this is a juror who was eager to serve and wanted to be a good juror and was with the program as far as what one needs to do or needs to feel, and I think she seems sincere in wanting to be a good juror, but there's just too much.

To begin with, she formed an opinion of guilt, which she candidly acknowledged both in her form and in her questioning, from the TV. When she spoke in her own words, she was clearly someone who had to be convinced otherwise by the defense. She said, "I'm not saying you can't tell me anything that will change my mind. I respect the process enough to listen to all sides, but there still is that back-of-my-mind sort of feeling that he is guilty." That's the juror, you know, unprompted.

She said that -- of course she has a good friend who was at the bombing who went through what sounds like a very nightmarish experience with her ten-year-old son. This juror found out about it that very night, or that day, very quickly, and then the next day they were all together and she got the whole story. She described the experience as devastating for her and for her son. She described her, as I said, a very good friend.

Now, this juror -- the jury is going to learn all about Martin Richard, an eight-year-old boy, two years different than this little boy, complete with quite dreadful autopsy photos. We just have to be realistic about how this juror is going to be thinking about her friend and her friend's child.

And she was somewhat candid about that. She said, "I would say yes, there are some emotional feelings" -- this was in response to will this affect the way you sit in this case; would it affect your judgment? "I want to be honest" -- this, again, is how the juror is talking when she's not being, you know, encouraged to give any particular answer -- "I mean, I guess as the trial goes on the emotion could come up in such a way that maybe it could," that is, affect her judgment. "Maybe the emotion behind it would be hard to get around." That's another direct quote from this juror.

So there's all of that. And that's pretty intense, and it goes to the kind of crime that she gave as an example, unbidden, of a death penalty case, that is a crime against a child, she was talking about sex abuse and so on. That's where she goes when she's thinking about a capital case. And this is very personal and very intense, and I think you could see that.

Then she had friends at work, colleagues say, "Fry him." That is when they knew she got her jury summons; this isn't back at the time or the year and a half since then. So there is that setting.

There is the in-law, the police officer witness. The government says, Well, we're not going to call him, which is the more jurors we talk to, the shorter the witness list is going to be. I hope there's someone left. But this witness --

MR. BRUCK: It's succeeding beyond your wildest imagination.

Be that as it may, the question here isn't what she thinks about the witness, but she's already heard his testimony. She told us the succinctly breathless description secondhand from this witness, how he was driving around and it was scary. So it's a little late. And granted, we don't know exactly what she's heard or exactly what effect it had, but it's -- you know, it's a witness to the case, if not a witness who will be called for her to -- in a way, it almost might be better if he is called because at least then she will hear the real testimony rather than the secondhand version.

And then there's something which is a little odd. I mean, it's not odd, but it's only come up with this one juror, and that is that she volunteered -- she gave an example of a case where she would impose the death penalty and a case where she wouldn't. The case in which she wouldn't was a little disturbing because it was the Andrea Yates case, which was a woman who was profoundly mentally ill and in the end was acquitted by reason of insanity after being retried. And that's someone she saw as a candidate for life imprisonment. Her candidate for the death penalty was Susan Smith, who I think, as the Court is aware, was represented by Ms. Clarke and by me.

MR. BRUCK: As a matter of fact, we were younger. But be it all as it may, if that was the only problem with this juror, then it would be something to worry about. We don't think it would be disqualifying all by itself, but it is something to worry about.

The other thing, and there's no reason to get into the weeds of that case, but she parroted the media story of the Susan Smith case and why Susan Smith murdered her children, which absolutely fell apart at trial, was not proven, were not the real facts. But 20 years later, as a juror who said she would not form an opinion in this case based on the media, is still reciting the erroneous media version of the Susan Smith case. Now, that's not to malign her in any way. It's simply to reflect on the realities of the effect of media coverage. And we're a lot closer to the Boston Marathon bombing and this witness's exposure to the Boston Marathon bombing than to the Susan Smith case.

Mr. Weinreb said yesterday we have 1350 jurors, why on earth would we take a chance on this one? There's no need to do it. We just think there's too much there.

MR. BRUCK: The defense has a motion on this juror on two grounds: One is, of course, he was a bank manager who found it necessary to close all six branches of which he has authority on the day of the shelter in place as well as staying at home all of that day, and also that his bank organized a dinner that he attended for first responders, I'm assume many of whom will be witnesses in this case.

You know, this is the sort of connection that if it were not this case and a juror came forward with these two connections, I don't think anyone would think twice about thinking he was too connected to the offense to serve as a juror, and the only reason why he would be seriously considered is there's so many other people with greater connections. But the facts are what they are, and we think that his life has been too impacted professionally and he's been too exposed by people who are likely to be -- and he's already taken part in honoring people who are likely to be prosecution witnesses, although he couldn't have been expected to know their names.

So for those two reasons, we think he should be disqualified.