4.Juror Challenges and Jury-Selection Procedures
129 lines(Discussion at sidebar and out of the hearing of the public:)
THE COURT: So I think 412 and 435 were dealt with as we went along. I think that brings us to 441.
MS. CLARKE: No motion.
MR. WEINREB: No motion.
MR. BRUCK: That was no motion.
THE COURT: No motion?
444.
MR. WEINREB: Your Honor, that's a government motion.
MR. BRUCK: There's no argument.
MS. CLARKE: Without argument.
THE COURT: 447?
MR. WEINREB: Same thing, government motion.
MS. CLARKE: Same thing.
THE COURT: All right. 448?
MS. CLARKE: That's a defense motion, your Honor. That's the Red Sox fan who --
THE COURT: Yes. The estate manager.
MS. CLARKE: There's three areas of concern that we wanted to express to the Court. First, I think she seemed like a very good person. I actually liked her, seemed very honest. But there are three sorts of impairments that we think disqualify her.
First, there's the level of emotion that she attaches to the events. She said, "I cried." "I felt numb." "I felt guilty." "Why did you feel guilty?" "I wasn't there." Now, Ms. Conrad was doing the questioning and was not allowed by the Court to follow up on what that actually meant and how she was actually affected, but there was, beyond most of the people that have qualified, a lot of somehow emotional reaction to the events. And particularly when she said, "I felt guilty that I wasn't there. I cried and I felt numb," that caused us a great deal of concern about her level of attachment or reaction.
The second thing that is of concern is really not being allowed to get into her death penalty views. I know there was a lot of discussion about whether she was for or against the death penalty, and when we got into the -- she talked about, "Yes, I don't want somebody who is reliving the crime" -- "I think they should get the death penalty and I don't think others should." It was very confusing. And when Ms. Conrad tried to pin her down on "Are you talking about premeditated, intentional murder?" there was an objection about that, and whether or not that had a legal meaning or a practical meaning, and Ms. Conrad said something about, "Well, a planned murder" and that got stopped. So we were never really allowed to get into what she was thinking about her view on the death penalty.
But the third and final real problem was the final question by Ms. Conrad, was the mitigation impairment question. And she said, "No, I can't consider the defendant's background, character, other things about the defendant's life." And nobody followed up on that. That was just simply a, "No, I can't consider those things." So the combination, seems to us, disqualifies her.
MR. WEINREB: Your Honor, the government opposes the motion. With respect to her level of emotion, I mean, the Court was able to see her, and I don't think that she showed a level of emotion that was particularly striking. What she said was that -- she was asked how she felt when she first heard about what had happened, and she said that initially she felt numb and that at a later point, thinking back on it, she cried.
But I mean, this was a shocking event to many people. And to initially -- to have your initial reaction to feel numb and to shed some tears over the death of some people is nothing that disqualifies somebody from jury service and, indeed, I think recommends them for jury service. It shows that they're human and they have the capacity for empathy.
There was nothing particularly about this event versus any murder that one might hear about on the news, like what happened in Newtown or anywhere else, that this juror might have had the same reaction to, so I don't see how that disqualifies her as a juror.
I disagree with Ms. Clarke about her assessment that the Court blocked thorough questioning about her views on the death penalty. I thought that that was explored pretty well with her. I mean, she may not have been the most articulate or precise in making distinctions about things, but through examples that she herself offered and through follow-up questions, she freely gave examples of aggravating factors that would influence her and others where she felt other factors would be mitigating factors. She at one point talked about lack of a motive as being a mitigating factor, she talked about certain kinds of things as being aggravating factors, and almost unwittingly gave examples of exactly what jurors in death penalty cases are supposed to do, which was consider all the different factors. And that was the theme of her discussion about it.
And then finally, I dispute this -- the claim that she said that she could not consider any mitigating factors. That is not at all what Ms. Conrad asked at the end. What she asked specifically was in the case of a premeditated murder, could you take account of the defendant's background. And "background" is a very broad term. It embraces not only some things that might be legitimate mitigating factors but things that may be specifically excluded as mitigating -- as factors, like the defendant's race, his religion, his ethnicity and other things that also fall in the category of background. And nobody blocked any follow-up on that. Ms. Conrad thought that she had nailed this juror and that that was going to disqualify her, and she immediately said, "No further questions," and the juror was excused.
That one answer, I think especially to a very broad and ambiguous question, I do not think can undo or negate all the very clear answers she gave previous to that, that she is somebody who could weigh aggravating and mitigating factors and decide each case on its facts.
MS. CLARKE: If I might, just a couple of points. On the question of getting under premeditated or planned, I think it was the juror who used the word "premeditated." What Ms. Conrad was trying to do was find out what she meant by "premeditated." And we got kind of off -- and I understand -- is there a legal definition or a human definition.
The other thing, on the last question, my recollection of what Ms. Conrad asked was, "Would you be able to consider things about the defendant himself, like his background?" And she said, "No." So the record's pretty unambiguous on the mitigation impairment of this juror.
THE COURT: Just on that last point, the record might or might not be unambiguous, but it's unconvincing as well. We are constantly running into the phenomenon of laypeople who have not thought very deeply about these matters necessarily at all being asked to give rather precise answers, sometimes being asked in terms that we understand in a way that they may or may not understand it the same way. And I think to try to be too literal in the interpretation of the jurors' answers is a mistake. I mean, this is an assessment of whether a juror can be open as necessary to -- in the penalty phase either possibility, and my overall assessment of her is that she can be.
She seems like a very self-confident, experienced person if she ran the estate that she described, and, you know, supervising a staff and so on and so forth. She seemed to me to be the kind of person that can do what she's tasked to do. And of course when we get to things like terms of art, she will have very specific instructions about what that means under the circumstances. And a word like "background," for example, would be explained in much greater specificity as to what can be considered and not considered. And of course that will be done in the light of what has been produced in the course of the trial that can be characterized as aggravating or mitigating, and the instructions will make a great deal more sense.
So what I'm looking for is somebody who I expect will respond correctly to those kinds of instructions on that body of evidence, and I think she can do that. So I would deny the strike.
452?
MR. BRUCK: No motion.
MR. WEINREB: No motion.
THE COURT: No motion? Okay. The afternoon was not productive, I think.
(Laughter.)
MS. CLARKE: It's all agreed, I think.
THE COURT: Anybody disagree with that?
MS. CLARKE: Well, productive.
THE COURT: It was interesting. We met some nice people, but...
MS. CLARKE: Okay.
THE COURT: So I think we have -- let's see. That's one, two, three?
MS. CLARKE: That's right.
THE COURT: Now, everybody's doing their best, but, again, we shrank down to a smaller number. And I don't discourage you from agreeing on the eliminations; I just would like to maybe make a little more progress. So I'm thinking of increasing the number to 25 for our pool for Tuesday. It will shrink to 15 and we'll be able to handle it, is my --
MS. CLARKE: That's the first time we won't be able to screen --
THE COURT: Well, I don't know.
Let me just call your attention to two -- I'm told there are two -- I had proposed some and I know the parties had agreed on some, and there were a couple of ones that I guess the parties do not agree with my proposal. And I just urge you to take a second look at it. 489 and 501. Actually, I think I left my note upstairs. I believe one is a -- it looks like a production-line laborer, if I'm thinking of the right one, and the other, I think, was an auto mechanic. I mean, they kind of fit in what we've been doing. There might be other issues; I don't remember. But just take another look at 489 and 501.
MS. CLARKE: 501 was a union member, so we didn't know whether he got paid or not.
THE COURT: Oh, because he was a tile guy, a bricklayer.
JAMES MCALEAR: Tile finisher.
THE COURT: Yeah, it was the bricklayers union. I know that because my grandfather was in the bricklayers union.
MS. CLARKE: Do they pay?
THE COURT: Not in those days.
(Laughter.)
MR. WEINREB: Sometimes the confusion with these arises because there's no claim of hardship.
THE COURT: Yeah. Yes, I was thinking about that. Although it's sort of appearing to me over the time that was our original marker, was that if they claimed it and it appeared to be valid in 26, it was an easy way to do it. I have developed a sense that people early on, being good citizens, said "no" to 10, and then as things got on, they got more accustomed -- I've seen a couple of them, I'm sure you did too, that we see the comment in the 70 series, 74 we'll see a comment, or in the 98 range they'll add it, but they won't go back and amend Question 10. So I'm not sure 10 is as reliable a marker as we may have thought.
So anyway --
MR. WEINREB: We'll take another look.
THE COURT: -- take another look at those two.
MS. CLARKE: Didn't we have another labor member or two that did get paid?
THE COURT: I remember the thought occurring to me with a teacher -- I think she was excused anyway -- when she said her contract provided something. And it occurred to me it was at a collective-bargaining agreement or an individual contract. But I don't think we ever answered that question. I think there are -- there are laborers who kind of work through the union.
MS. CLARKE: Right, and they get paid.
THE COURT: The carpenters, for example, have that kind of arrangement. But anyway...
MR. WEINREB: So, your Honor, before you came in, so Mr. McAlear gave us the next 20 and then the next 10 after that. And we will get together over the weekend and see if we can agree on any more. And it would be useful if you could also review them --
THE COURT: I will.
MR. WEINREB: -- over the weekend.
And then Mr. McAlear said if we get him the results by Monday, he can backfill.
THE COURT: We can adjust accordingly. That's fine.
MR. WEINREB: So should we email -- how should we communicate? Should we email them to Jim or --
THE COURT: Yeah, we'll go through Jim. That's the easiest way.
MS. CLARKE: Right now that would take us through 504 if we're calling in 25 to look at?
JAMES MCALEAR: Yup.
MS. CLARKE: And that's including 501 and 489, so...
THE COURT: Right. So that's adjustable too.
Let me also comment that the last fellow had multiple issues.
MR. WEINREB: We've discussed that he should have been -- he slipped through the cracks.
THE COURT: Yeah, that was a waste of time.
MR. WEINREB: That was a waste of time. We all agree with that. We'll take the hit for that.
MS. CLARKE: They're taking it. Sometimes we do.
THE COURT: The people on the sensitive issues, the 77- and the 88-plus series, that's fine. We'll talk to all those people. But if there's somebody who has a cousin who was killed in Iraq and was affected by it or whatever, that's something that maybe we can...
A couple of just-while-I-have-you items. In addition to the Globe's motion to alter the arrangements, which we were about to -- I think we haven't filed it yet. We're about to file it, a disposition. They also filed a motion for access to the legal rulings on the things that we're doing here.
The time has passed for any response from the parties. I gather there is no response from the parties. We'll act on that. I just wanted to confirm that, that we don't have to wait for anything on that?
MR. WEINREB: No.
THE COURT: Okay. We're getting close, I think, to completing this. If we don't get any more winter storms, we should be in pretty good shape.
MS. CLARKE: That's a big "if" right now.
THE COURT: I know. Well, fortunately this one is well-placed. It's right in the middle of the weekend. But there is talk of something perhaps later in the week. But I think we're getting pretty close.
So the time has come to start thinking beyond that, and one thing -- and I'm not asking for answers now. I just want to -- what I'm beginning to think about is once we have finished the jury empanelment, which can include the peremptory process, whatever we decide on that, whether it will be necessary to take some time to address any motions in limine that need to be resolved before openings and the beginning of evidence, and if we do, how much time we have to do for that.
We're getting inquiries from the press regularly. Most people are not as interested in this process as they will be in the actual beginning of the case. And there are people who will travel to get here. And so we're constantly -- we're not -- but the people downstairs are constantly getting inquiries. And so partly out of just good relations we would like to keep them up to speed a little bit without -- we won't tell them what we can't tell them.
So I just am interested in what you may be thinking about that. My thought is we might be able to -- once we figure out -- we'll still have to finish this because we have to know when the time breaks. But when we've done that, we may be able to pick a date and tell them this is the date we will swear the jury in, begin the case. So that's something to think of.
MS. CLARKE: Judge, we filed a while back a -- sort of in the -- it looked like a status report/in limine evidentiary issues, and we tried to set forth in that the ones we thought needed to be ruled on before openings.
THE COURT: Okay. If that needs updating --
MS. CLARKE: We can look at that again. And I think the government just responded to that.
MR. WEINREB: I think it may have been overtaken by events, and there are now more things to add to it, so...
MS. CLARKE: We should look at that.
MR. WEINREB: Yeah. Maybe the parties also can exchange lists of what we think are sort of the critical ones to be addressed before opening statements.
THE COURT: Well, that's it. I mean, stepping back from this case, every time we begin a case we get motions in limine. And I may think that it's -- about 20 percent of them are worth ruling on before the case begins. A lot of them you have to wait and see how things are developing in the case. They're often contingent on developments in the case. Some clearly have to be done because somebody wants to say something about it in the opening.
So I'm interested in that group more than the ongoing group. We can deal with those as we need to.
MR. WEINREB: Sure.
THE COURT: So I don't know whether -- again, at some point we should consider once the jury empanelment process is over what sealed matters might be opened. We've had a lot of sealed things just to protect the process. There will be some things that I think will have to remain under seal until the conclusion of the case so they don't affect the trial, but there may be other things not in that category and we could deal with that.
For example, I would think that the transcripts of the voir dire would remain sealed through the trial because I think the cases say -- the First Amendment cases I think permit that. But I don't think it would be wise to have the voir dire transcript of a sitting juror available for publication. I think it will be an invitation to mischief, personal matters, things like that.
And finally on that -- thinking forward, I know that for the preliminary instructions both back in January and now what I'm doing today you got together and made some proposals. I don't know if you're going to have similar proposals for opening instructions of the case itself. My practice in a run-of-the-mill case is not to give substantive instructions at the beginning of the case; it's really an outline of how we'll proceed and a little bit about the rules of evidence and why they'll see people objecting and me ruling and things like that. I mean, you've probably heard me do it. But I don't know if you have anything more specific about that.
It is the case in a run-of-the-mill case that I would read the relevant language of the indictment at the beginning of the case, you know, the man's charged with being a felon in possession of a handgun or something like that.
MS. CLARKE: We might have to add a day to the start, then.
THE COURT: But I don't intend to read this indictment. And I don't know whether you can think of an appropriate substitute that you would like to propose, that's all.
I guess for purposes of the record -- is this the list I'm supposed to read? I have to ask the boss.
(Laughter.)
THE COURT: Is this it?
COURT STAFF: That's one of them, yeah.
THE COURT: Do I have another one? Oh, this one? This too? Yeah, okay. Just so it's on the record as to ones that have not been qualified for service, we'll start with today's -- well, other than -- I think we'll do it -- it doesn't include what we have here, right? What we just did this afternoon. I think we'll --
MS. CLARKE: Write it up?
THE COURT: -- write it up. I just want to be sure.
MS. CLARKE: Judge, I have one thing while we're here too. The Court indicated that there would -- its common practice is no back-strikes. Could the Court just again tell us what your plan is for striking?
THE COURT: So you fill --
MS. CLARKE: Except they won't be here.
THE COURT: Well, whatever.
MS. CLARKE: Yes. You fill a piece of paper or you fill a box.
THE COURT: Right. So there's -- let's just talk about 12 first, because then we can talk separately about the alternates.
MS. CLARKE: Sure.
THE COURT: You have 12 jurors. It comes peremptory time, both parties would come up. The government would go first and say, 2, 4, 6, 8.
MR. BRUCK: And the 12 jurors are the first 12 qualified in order?
THE COURT: Yes, in order. Correct. We don't rejumble them once -- so I guess they'll follow this numerically. So consider them Seats 1 through 12, 2, 4, 6, 8. And then the defense goes 3, 5, 7, 9. All those people are excused, those seats are refilled in order.
MS. CLARKE: The seats aren't refilled until both parties have struck?
THE COURT: Correct. Right.
And so that was eight seats. So eight new people come into the box in those seats. The four who were not struck are done. They're on the jury. The eight new seats are subject to further strikes.
The second round the defense goes first, picks theirs, followed by government.
MS. CLARKE: Out of the eight?
THE COURT: Out of the eight.
So if seven are excused, seven new people come in. It goes back, first the government, then the defense. Now you've got three people left. And it keeps narrowing like that.
MS. CONRAD: Any limitation on the number of strikes?
THE COURT: No.
MS. CONRAD: Not two, two, two?
THE COURT: No, no, just do them all at once.
MS. CLARKE: Out of the 12?
THE COURT: And do as many as you want. You can strike all 12 if you wanted.
Now, that brings up the question of how to deal with alternates in this case. In a run-of-the-mill case we would have 12 and two alternates, and it's easy to track the alternates. And as I said, my practice is just to advise everybody they will be the last two people seated and they could be in seats 3 and 11. We don't put them off to the side or anything like that. And a principal reason for that is they don't know who they are. There would be a few more here.
I was thinking about it in terms of what's allowed, which is 20 for the 12, plus three for the six alternates for each side, and that's 23. You could interpret that as meaning you get 20 to use on the first 12 and you only have three to use on the other six. That's a little -- I think more cumbersome, and if the parties don't object I'd just give you 23 and you use them however you want.
I think there's some advantage to the parties in that latter approach because you can front-end a little bit more if you have to import one of the alternate ones to get somebody in the original 12 before we've gotten to the last six. You may, you know, be better off. You may get 21 for them rather than 20 if you don't -- if you do the accounting that way. So maybe -- but I think it would be easier to do it that way.
But if you think we have to count separately, I guess we can do that. We can say, Okay. We haven't gotten to the last six jurors yet. You only have 20, you're done, or something like that. I don't know. You can think about that. I don't know that there's any rule that affects that, but we could adjust it.
MR. WEINREB: So --
Did you have something?
MS. CLARKE: No, I was just trying to understand the process.
MR. WEINREB: So, your Honor, unless the Court is wedded to that particular system, we would like to propose a different system largely because that system does not seem to be well adapted to this particular situation where each side has so many strikes, 23 strikes. You only have 12 people in the box. And it also seems to have -- frankly, from our point of view, waste a lot of the work that the parties have put into trying to identify who we think would be the best jurors in the case because it puts a tremendous amount of emphasis on the people who are numbered 1, 2, 3, 4 versus people who may be more suitable as jurors further back in the pool.
And we propose a system where the parties just take turns striking two people from the pool at a time until we're all done with our peremptories, and that way --
THE COURT: You mean just on the master list?
MR. WEINREB: Just on the list of the 70 or however many are qualified. Right, and then they'll --
THE COURT: Starting at the beginning?
MR. WEINREB: No, just anywhere in the pool. Because the -- at this point we're going to know who they all are. We'll be able to identify them by number very easily.
THE COURT: So your first strike could be Number 70?
MR. WEINREB: Exactly. Well, except Number 70 would have no chance of being sat if --
THE COURT: All right. Number 64.
Well, I'm not so sure of that. That's why we have Number 70 --
MR. WEINREB: But at some point we'll have the pool.
THE COURT: Right.
MR. WEINREB: And that way it also seems fairer, frankly, because otherwise the -- again, the government's in the position of having to go first and potentially strike any number of people who we don't particularly object to just because we don't know -- without -- normally you know you're going to get to use up all your peremptories because you don't have very many to begin with. Here you would be risking forfeiting a lot of --
THE COURT: I think that's right. I think there's a possibility, if we did it the way I've outlined it, that neither side would use all their peremptories.
MR. WEINREB: But the parties are allocated this number of peremptories for a reason, and I assume the reason is that when it comes to a case like this, there was the belief that the parities are entitled to have more say in who they think the jurors ought to be and have more chance to strike people who they believe really don't fit the qualifications of a juror in a death penalty case.
And so we're not really going to have as much of an opportunity to get the benefit of what Congress gave if we have to do it this way versus the other way.
THE COURT: Well --
MR. BRUCK: We think we're fine with the Court's proposal, but we would like to think about it over the weekend.
THE COURT: Yeah, think about it. It's new to me too. I don't know. I can't react to it. Will I entertain it? Yes. Will I do it? I don't know.
(Laughter.)
THE COURT: I'm not sure.
MS. CLARKE: Unsure. Maybe. Ask me tomorrow.
MR. BRUCK: The question is: Will you ever be able to say?
MS. CLARKE: Thank you very much.
THE COURT: Okay. Thanks.
(The Court exits the courtroom and the proceedings adjourned at 4:15 p.m.)