5.Cause Challenges — Juror 446 Retained; Juror 489 Excused
46 lines(Discussion at sidebar and out of the hearing of the public:)
THE COURT: Okay. 446?
MR. CHAKRAVARTY: Your Honor, the government has a motion.
Your Honor, the government contends that this juror is substantially impaired from imposing the death penalty. And unlike in some other cases where the issue of whether a person opposed to the death penalty can find some daylight in which some circumstances they can weigh mitigating and aggravating factors in order to arrive at a decision, that wasn't the issue with this juror. The issue with this juror was can this person under any circumstances impose the death penalty, not just intellectually arrive at the decision to impose the death penalty.
And the Court put it best when you explained it to her, that distinction, and she got it. She understood the emotional versus the -- excuse me -- the intellectual versus that emotional distinction. And her words were that she -- she couldn't deal with it. That was made evident, clear again when I asked her; it was made evident in the questionnaire in which she said, "I am not sure." She stuck by that answer. And she never gave any confidence that she would ever be able to impose it.
In fact, she came up with an example somewhat analogous in which she says, "I would like to think I would run into a burning building," but she's not sure that -- in this case she said she's not sure that she would. She was not sure she would make the decision to even do that.
And given that in the context of the juror being perhaps the most anxious juror we have seen, visibly shaking -- I would say anxious, perhaps even emotional -- that the absence of her ever saying that she could under any circumstances -- even when I think the defense tried to kind of open that possibility, her idea of she wanted to leave the door cracked open a little bit was a purely theoretical exercise.
And for that reason we say she's substantially impaired.
MR. BRUCK: We don't think this juror is close. She is a remarkably thoughtful juror and talked about the thought she'd given to this after coming to court. I thought the burning-building analogy was a really marvelous explanation for what is wrong with requiring people to tell us ahead of time what they're going to do.
She had a real understanding of what's involved in this case, unlike some other jurors we'd seen. And she said over and over again there could be circumstances where it could be appropriate. "I'd have to be really convinced." She's talking about doing it. "You'd have to make a powerful case. I'm opposed to the death penalty, but I would leave the door open."
In response to the Court, in response to the government, in response to the one question that Ms. Conrad asked, every time she said she would do it if it was a strong-enough case.
This is a juror who should not only not be disqualified but can't be under Wainwright v. Witt.
THE COURT: I think she's fine. I had, you know, some of the same impressions that Mr. Bruck just referred to in terms of her intelligence and thoughtfulness. I think there's a difference between being not sure and being not open to the prospect, and I think she is open to the prospect.
471 and 478 I think were agreed.
480?
MR. BRUCK: No motion.
THE COURT: No motion?
481?
MR. CHAKRAVARTY: That's a government motion. I don't know if you --
MR. BRUCK: No argument.
THE COURT: Okay. 482 I think we --
MS. CLARKE: Agreed.
THE COURT: -- excused.
487?
MR. BRUCK: No motion.
THE COURT: 489?
MR. BRUCK: The defense has a motion to disqualify this juror on two grounds. The first has to do with his economic situation. And I think it really bore out that the Court's intuition was correct but in a way that we haven't seen before, which is his very surprising indication that this small car dealership has basically offered to pay his way so that he can be a juror in this case, knowing which case it was.
That doesn't prove anything but it certainly raises a cloud of concern, that in effect given the notoriety of this case and the powerful feelings that it has aroused, that the people he works for have basically said: You be our juror. Go get him. We can't ever prove that. We don't know who they are. But it is so odd that a small dealership would basically pay a salary for someone who works on piecework so that he could be a juror for four months on a case of this nature.
So I think all by itself that is enough cause for concern to justify his disqualification. It's another one of those we have 1370 people, why take the chance.
But on top of that, this is a juror whose ability to consider -- meaningfully consider life imprisonment is substantially impaired. We don't say that he absolutely closed the door on it, but that's not the standard. This juror to begin with said if the person was convicted of all those crimes, then -- he said, "There's no use leaving him in prison if he's guilty of all those charges." He said several times he would impose the death penalty upon conviction.
The Court very, very patiently and repeatedly explained the process to him, at which point he did go to the sort of mantra of "I would consider all the evidence." But we never really got away from the concept that considering the evidence for him meant considering the evidence of guilt.
He said, "Well, if he was mentally ill," which again sounds like if he wasn't guilty by reason of insanity or pushed by people, that was as close as he ever came to saying he could consider mitigation. His idea of a case for life is where you could get information out of the person by questioning him. And then he even pulled that back by saying "but that wouldn't help the victims," or words to that effect.
This is just not a -- "If you are guilty of terrorism or killing people intentionally to cause chaos," was his example of when he would always impose the death penalty. Well, that's this case, or at least it seems to be his view of it.
The government's attempt to rehabilitate got him only as far as saying that he would listen to the evidence of mitigation; not that he would consider it. And that's as close as we ever came.
All of these things -- you know, again, you have to make a judgment call obviously based on conflicting and uncertain evidence. This is -- this juror is at the other end of the scale from the Juror 446 we just discussed in terms of his intelligence, his awareness of the -- of what is really at issue. And, you know, "Why leave him in jail if he's guilty?" This is the way this person thinks about it.
It is conceivable that despite everything that we've heard there lurks within this juror the ability to do his job at the penalty phase, but it has not been demonstrated with the reliability that this -- solemnity this issue requires.
You combine that with the somewhat odd circumstances by which he is financially able to serve, and on balance we think this juror should be disqualified.
MR. MELLIN: Your Honor, we completely disagree. As to the hardship, your Honor asked him numerous questions about his situation at the dealership. He explained the situation that they have. Mr. Bruck is asking the Court to ignore his answers about what he was told by his employer about whether or not he was being paid. He said he had talked to them; they said they would compensate him. So I don't really think there is any issue whatsoever unless we're going to now start to question the actual statements made by jurors based on what they are told by their employers.
Regarding the death penalty, he was clear in his questionnaire. Question 90, he selected D. "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 believed was called for by the facts and the law of the case." That was in his questionnaire. Again, on Questions 95 and 96, he said "yes" to both of those, indicating he was open to both punishments that might be appropriate.
It was obvious when he was first asked questions by your Honor he was confused about the process, which is not surprising given the fact that he's a layman who is a service technician at a VW dealership. He is not a lawyer and doesn't have these questions asked of him every single day. Once he was explained the process and reinstructed by your Honor about how the process works and the fact that there will be two phases, it was obvious at that point a light went off in his head, and it was clear that his answers from that point forward showed that he would be willing to carefully consider all of the evidence before he came to any conclusions.
He, in fact, listed two mitigators when answering one of the questions, two of the mitigators the defense will be looking at and asking the jury to consider in this case, mental health and whether someone else pushed him into it. Those are going to be precisely the themes they're going to harken upon in their penalty phase presentation. And this lay juror said, "These are the types of things that I could consider as mitigators."
So given that, your Honor, and his answers, I think it was very clear he would be able to consider the case-by-case analysis and decide the case based on all of the evidence.
THE COURT: I'm not satisfied that he's qualified for this case. I had the same concern about eagerness that Mr. Bruck was referring to, again, not an answer to that, but it's a concern. I have sort of a different -- maybe it's because of my role in the process -- a different concern about him, and that's whether he's instructable.
I don't know -- based on the way he answered the questions, coming firmly on both sides of the issue on occasion, I'm not sure he has the ability to follow the instructions that will be fairly complex in this case. So I don't think this is -- so I will grant the cause excuse for him.
I've forgotten on 490, whether we excused him.
MR. BRUCK: We did. I think all the remaining jurors were excused.
THE COURT: I remember the remaining three were, but I couldn't remember on him.
MR. BRUCK: Yeah, 490 we abandoned the questioning.
MR. MELLIN: He leaned towards death.
THE COURT: Right. Okay.
We will -- Jim and I are going to caucus about the next upcoming numbers. I will say this: I've looked through -- a little bit ahead here. There are a lot of problems, it seems to me. And I know you've been agreeing on things. I just -- we'll produce the range, but take a good look at it. First of all, I think -- I'm not sure what the exact numbers are. I think we started with 25 and we got down to 14 for today?
JAMES MCALEAR: We had 24, we got down to 16, down to 13 before we actually --
THE COURT: Yeah, that's what it was. So I think we're going to raise the gross and hopefully do a little bit better productivity-wise when it comes down to them because some of them -- just for example, I think in the next 20 or so, there are at least half a dozen 1A's. Now, that doesn't mean that we shouldn't ask them about it, but I think we should ask them first about it, and if they're not budgeable -- but I think it's -- there's a -- somebody like that -- there are some on the other side as well, you know, death penalty is the only thing for this fellow. Those people, again, we can spend a little time with them, but we shouldn't want to do a lot. And so I think we can be more productive with others who may be more in the zone and so on and so forth.
So I just say that because we'll give you the range, and take a look and see if maybe there's some agreement you can come to on people that's not worth bringing in.
Some people have multiple problems. We're running into a very interesting problem, which I'm sure you've noticed, is we have people who tend to, you know, look like they're sort of hostile to the defendant until you get to the last questions, and then they turn out that they can't pull the lever for death penalty, you know? So it's really an interesting straddle. They even say some aggressive things about him but then they say, "But of course I'm not going to sentence him to death."
Anyway, so I think we're going to shoot for a gross of 30 and see what we end up with. Maybe it will be closer to the 18 or 20 that we hope to actually get through.
MS. CLARKE: Judge, we had submitted jointly at least an initial cut.
THE COURT: Yes. And I -- for this group and into tomorrow's group, which I don't remember exactly where -- I think I went up to 520 in my -- looking forward.
JAMES MCALEAR: 523.
THE COURT: Okay. I'm not basically going to second-guess the joint reductions in this way most -- not out of principle but out of efficiency. In fact, I'm sacrificing some principle to do that.
(Laughter.)
MS. CLARKE: We appreciate your confidence in us.
THE COURT: But I would like you to perhaps consider some of mine as well. It turned out I was right for the wrong reason perhaps with 489. But anyway, okay.
MR. CHAKRAVARTY: Your Honor, one scheduling issue. I think you may have suggested what we're doing for Thursday. Is it eleven o'clock we planned to --
THE COURT: 11:30, I think.
MR. CHAKRAVARTY: 11:30?
MR. BRUCK: So that should be a slightly smaller group, I would think.
THE COURT: Yeah, we'll have to adjust for that, although we got started about eleven o'clock today. But we're going to have them on Thursday -- the jurors will come in at their regular time.
MS. CLARKE: They'll be ready and happy.
THE COURT: Right. I don't know.
But anyway -- so the delay -- as I understand it, the Court of Appeals proceeding should be over by quarter to eleven, probably, but we're lending them the equipment, and so it has to be disassembled and brought back down. So that's why we picked 11:30.
MS. PELLEGRINI: Your Honor, speaking of equipment on Thursday, I wasn't sure that the Court was aware I had spoken with Mr. Lyness that we're going to come in at eight-thirty just to set up, but then we'll move a monitor so we can test it on the system that will work.
THE COURT: Okay. I wasn't aware of it but --
MS. PELLEGRINI: Okay. Are you all right with that?
THE COURT: -- if you planned it through Paul, that's fine.
MS. PELLEGRINI: Great.
MS. CLARKE: So should we wait for you?
JAMES MCALEAR: You guys don't have to wait here. I'll meet with the judge, and I'll send the list as soon as I get back to my desk. That's probably the most efficient way.
(The Court exits the courtroom and the proceedings adjourned at 4:11 p.m.)