7.Cause Challenges — Jurors 534, 536, 537 and 538
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MR. CHAKRAVARTY: No motion, your Honor.
MS. CLARKE: No motion.
THE COURT: I believe we addressed 520 and 529. Wait a minute. I was just talking about the people we saw.
MS. CLARKE: 520 and 529.
THE COURT: Right. Those are both we interrupted, right?
That brings us to 533.
MR. CHAKRAVARTY: No motion.
MS. CLARKE: No motion.
THE COURT: 534.
MR. BRUCK: Defense has a motion on 534, your Honor. And this is based on a cumulative number of contacts and involvements in these events and the online evidence. This is the juror who, effective on the first anniversary -- this is the Bitcoin expert. Of course, we learned today that his office was within sight of the bombing. His coworkers -- he was gone that day, but his coworkers saw smoke rising, saw the police response, none of which was hinted at by his questionnaire. Question 80, "...you or, to the best of your knowledge, a family member or close friend witnessed the Marathon bombing explosions or the response to them in person, please describe who was there." Now, maybe the people he works with aren't described as close friends, but it seemed like that was an opportunity to say, yes, my coworkers saw the explosion and the response to them. He did not.
We then have his Twitter feed. He retweeted on the 19th, the day of the shelter in place -- and I'll hand these back to the Court in a moment -- a whole series of tweets from the Boston Police Department, "pray for Boston," various Twitter hashtags and, also authored his own Twitter, original tweet, on April 19th, "One bomber dead, another on the run, one MIT policeman dead, transit system shut down. Please stay inside. Please stay safe." Not that there's anything wrong with any of this, but this is just not the picture of the intensity of involvement that this juror conveyed. And even if he had conveyed it forthrightly, there's a lot. He sheltered in place. His family all stayed home on the 19th.
He did not disclose on his form -- he mentioned on 82 various Boston Strong merchandise and items that he owned but did not mention the one that's maybe the most significant, which is that he went to his own church's benefit not for Boston Strong or the One Fund generally but for the Martin family -- for the Richard family in particular, which is a more emotionally close form of support. Again, I mean, there's not anything in the world wrong with all this. It's just that there's a danger of sort of approaching a new normal for this case about, if this was any ordinary case and a juror came along with these connections, I don't think anyone would think twice about saying, no, it's -- let's put him aside. Might be a good juror for another case but not this one.
This was his Facebook profile picture, not just on this page. This is his Facebook face to the world beginning on the first anniversary and extending all the way until the day after he filled out these forms, at which point he changed his Facebook profile picture to this, a Charlie Hebdo, which he explained. Once again, nothing in the world wrong with any of this.
THE COURT: Do you know what it was before he put up the "B Strong"?
MR. BRUCK: Before Boston Strong?
THE COURT: Before that.
MR. BRUCK: It appears to have been -- it appears to have been a high school picture of himself.
So we have the Twitter material; we have the Facebook material; the fact that he both -- his coworkers. He describes the phone calls. You know, the fact that he's away from town on April 15th in some ways exacerbates, I think, the emotional impact because he had a lot of people he was worried about, including his children, his wife, and his parents; a lot of worried phone calls. He's, almost two and a half years later, very calm in talking about it, but I think we all picture what it was like for him at that time. And we can really picture it by seeing the emotional tenor of his Twitter account four days later during the manhunt. We add all of this together, and there's just too much.
I think he's also -- he gave the impression of somebody who's very interested in serving and has probably the financial latitude and the situation where he could take the time and do it. He can work at night and work on weekends. He'd like to be on this jury, and I think that was reflected in the somewhat modified disclosure that he made. All things considered, we think this juror should be disqualified.
MS. PELLEGRINI: Your Honor, the government opposes the motion. I note that Mr. Bruck starts with what he calls the cumulative effect of, you know, the -- where his building is located, what coworkers might have seen. And I think that the new danger that we're facing here is motions to strike by insinuation. I notice that, when he asked all the questions, he never followed up with how did that affect you? So we're left with always to guess, to speculate, and to surmise exactly what, if any, alleged emotional impact this might have. We're also left to guess how that would affect his ability to serve as a fair and impartial juror.
I think this juror presented himself as intelligent, well-informed. He mentioned to the Court that he tweets episodically, and that seems to be evident in his Facebook and his Twitter accounts.
I also note that the -- it's not a Boston Strong. That's a Boston Red Sox logo. That "B" is the Boston Red Sox. There's been a lot of co-opting by various organizations of the phrase. Although this was another juror, I note that somebody used it, you know, Boston Strong, when somebody passed away. So it's taken on a lot of meanings and not one where necessarily we have to sort of add to the issue of whether or not this person could be fair and impartial.
There is nothing about his answers to the questions that normally grab our attention, which are his ability to put aside what he already knows and to look at the evidence that's presented in court. This was a juror who said he understood the spectrum of evidence and the questions that would be asked of him.
And there was nothing that was sort of closed off or emotionally damaged in any way, nor was there anything secretive or duplicitous in any of his answers. His answers to the Court, if the Court will recall, were quite straightforward, and he explained right away what those items were. Without prompting, he brought up some of the things that he had posted.
So, overall, we think this is the type of person who is not impaired in any way and should be able to remain at least as a provisionally qualified juror.
MR. BRUCK: One last thing about this is that -- I should have mentioned also, he professed to have no opinion at all about the death penalty in this case. Upon questioning from me in the end, he wouldn't quite admit to having an opinion, but he described this case as the sort of case in which he thought the death penalty might well be appropriate, aspects that are from the facts of this case. I think to have to sort of pull that out from him is another indication that weighs against disqualifying him.
THE COURT: I don't think he should be excused for cause. I think he did present -- let me just say, I think we're assessing here not the presence or absence of particular factors, but we're assessing human beings. We're assessing the jurors. And so the presentation, of course, is very important. And I thought he presented as a very intelligent, thoughtful person and actually coming close to exactly what you want in a juror.
I accept that he is as open-minded as a lot of humanity on these matters. I don't think any of the matters that you've referred to impeaches that condition sufficiently. I do think that that's -- I agree with the government. That's maybe just my own impression but that the logo is much more a Red Sox logo than it is a Marathon-related logo. So I think he's acceptable.
MR. BRUCK: We would ask that the eight pages of material that I've handed to the Court be marked as an exhibit.
THE COURT: Is this the totality of it?
MR. BRUCK: It is.
THE COURT: Fine. Let me just say on that, I mean, he was -- apparently, from what I have seen customarily, was tweeting and retweeting during that week. And, of course, there are people who were doing a lot of paying attention during that week. And I don't think, as a general matter, although it could be in a particular case, but as a general matter, is not disabling. And I don't think it is in this particular case.
Okay. Number 536.
MR. BRUCK: The defense has a motion on this juror. This is the juror who initially made himself out to be a 10; and then after some very laborious discussion and rediscussion and explaining how the system worked gave some answers that suggested that maybe he really wasn't a 10.
In the end, I don't think the Court can be confident that this juror wouldn't impose the death penalty in every case of intentional murder. His support for the death penalty appeared to have a -- some religious doctrinal basis. He talked about principalities and sort of biblical language in explaining why he would favor it. And he said some things that remain rather confusing about how he wouldn't judge -- he wouldn't judge people, and yet principalities have the right to carry this out or he would support that.
He reminded me a little bit of a -- he called to mind a term that the Court used yesterday, which is an uninstructable. This juror may have been a little brighter than the juror you found to be uninstructable, I think, yesterday, but the same objection obtains.
And then just adding to the totality of the circumstances, he has a seven-year-old son. He has a wife that works at Brigham, Brigham and Women's. He has a brother-in-law who's experienced P.T.S.D. in Iraq and who doesn't talk about it, which is hardly the sort of thing that gives one confidence that it doesn't weigh on that family, his wife's family, all of these -- the inconsistency of these -- of this juror's responses and the -- and the difficulty of getting a clear picture.
He applied for the FBI and then seemed to be a little bit anxious to minimize whatever allegiance or, you know, enthusiasm he might have had about going to work for the FBI.
He's a juror who clearly really, really, really wants to be on this jury. We did get that strong impression. I think all of his answers need to be viewed through that filter. This is a concern that all of us have had. I know the Court surely has from the very beginning, jurors who -- it's nice to have people wanting to serve, but this high-profile case is in a special category, and I think special vigilance is required. So it's a wide array of factors, but, on balance, we think this juror should be disqualified.
MR. CHAKRAVARTY: The government opposes and disagrees with Mr. Bruck's characterization of the juror. There's no doubt that this juror was talkative. He's earnest. I think, like some jurors we've seen over time, they want to be as honest as they can. It is a nerve-racking situation, so they think out loud.
This juror clearly had a misunderstanding, especially of the Question 89, I believe, as to what the construct was in a death penalty case. And what Mr. Bruck calls a laborious process was really one time the Court instructing and then later, when the government asked, further clarifying that, in fact, he's not pro death penalty at all. He simply would impose it if the law said that this is a circumstance in which it is appropriate to impose. I think he changed it to -- his answer to, like, a 5 or a 6, which puts him basically as somebody who's capable of implementing the death penalty but also equally open.
And I think the danger in confusing his lack of understanding of the process and conflating that with, as Mr. Bruck characterizes it, a desire to get on simply because he was explaining himself for longer, I think that's easily dispelled when you change the frame of reference in which he looked at that question. If he understood the question then, it would have been a very simple process to get through to where the remaining issues lie, which, as far as I can tell, Mr. Bruck's remaining issues with this juror is that he applied to the FBI, something that he freely admitted. He admitted going further in the process than the parties may have known. And he explained why, in a very logical way, why he withdrew from that change of career in his life. And he also explained why he applied to the FBI. He had skills to offer, the same reason why many of us apply for government, to -- those are not disqualifying factors.
The other thing that Mr. Bruck points to, aside from his answer on the death penalty question, was the fact that he had some religious overtone to the genesis of his death penalty views. And if -- you know, if I used that argument to challenge one of Mr. Bruck's offered jurors, then I think that the problem with that argument would be patently clear. And here, at worst, the religious genesis of his views was, I ought to follow the law when in the principality of being in a secular court.
All of those objectively are factors which suggest that this is a person who is going to try to do the right thing, who's going to follow his conscience, that he believes in other factors that should weigh on his opinion aside from -- meaning his personal beliefs in order to exercise the discretion necessary to give either life imprisonment or the death penalty and that he was open about what his biases were. He had that ability to self-assess.
Going to the point of whether this is a guy who was really trying to talk his way into getting onto the jury, I suggest, No. 1, somebody with young children is not necessarily going to want to be in that situation. Somebody whose wife is a presumably busy nurse is not going to want to be in that situation. And somebody who, when asked about it in the questionnaire as to what was your reaction, his reaction wasn't, Oh, I can't wait to do this. It was, I was confused about whether I was a federal court summons with a state summons. Then when he realized now that he's in court, he doesn't have a problem with it. That's not the answer someone would say if they were trying to sneak onto the jury by being down the road, middle of the road. So for all those reasons, we think he's a qualified juror.
THE COURT: The strike is denied. He projected a different sort of personality a little bit. I don't think it was disqualifying. I actually would reach the opposite conclusion about instructability. I think he took instruction here in front of us and adjusted his thinking accordingly.
I am satisfied that he misunderstood Question 89 when he read it or -- I'm not sure he misunderstood the question. He misunderstood what the legal framework would be when he had to face a question like that in the course of a full trial. And he had an assumption about the law that he was then told was not the correct understanding, and he changed it. So I think that's fine.
Some of the other matters, I don't -- I don't think his FBI experience is significant one way or the other. I mean, he hasn't been -- I'm not sure, if he had actually served in the FBI for a few years, that would matter. I mean, you would have to go beyond that to see if it would produce a disabling bias in favor of the government. But from his experience, it didn't seem to be. He seems to think he made the right decision by going where he went. So I think he's acceptable.
537.
MR. CHAKRAVARTY: Your Honor, that's the government's motion. 537, the government's basis is that she's substantially impaired from implementing the death penalty. This juror was not only pleasant and thoughtful and had clearly thought about the death penalty question in particular, but she was intelligent and articulate. And she had clearly made the decision and reconciled that she should not be an absolutist on the death penalty. All of the examination was consistent with that. The way she altered her answers on the questionnaire was consistent with the idea that she did not, as a philosophical matter, think that it was appropriate to never say never. It was -- it was appropriate not to say never.
But, in practice, actually implementing this thing, was not only something she was candid about in saying no to Question 95 on the questionnaire and then altering it to suggest that, well, I'm not sure that I could ever come to that decision to do it; but if I did, then I'm not sure whether I could actually make -- cast the vote, pull the lever, so to speak.
But sitting in front of us, it was clear that this was a -- taking its emotional toll on her. And while making that decision would take an emotional toll on anybody when they're in that position, here, simply to, in her words, make the decision to take a life, would be one that, I think -- certainly, it does not give the government any confidence that she would be willing to do it. In her words, when I asked her the questions, "was probably not."
When I think it was Miss Clarke led her down the primrose path, as any good series of leading questions might do, got her to, you know, check the boxes. I think that, as we've seen with other jurors, simply saying -- there's no magic words in this process. It's the sense of the juror. And this juror seems firmly committed to -- and it's not her idea that the death penalty is not an appropriate punishment that the government objects to. It's, again, as I think yesterday or the day before, there was another juror, who it was simply the ability for this juror to make that -- to pull that lever. And unlike a previous juror -- yeah, so Mr. Jacks is reminding me what some of the quotes were. She said -- she explicitly said that she would have trouble voting for the death penalty for anyone, not just in this case, and that it was wrong to take a human life. Those are exactly the type of impairments that will prevent her from casting that vote even when she has consciously arrived at the decision that it might be the appropriate conclusion to a case. For those reasons, we think that she is substantially impaired.
MR. BRUCK: Well, your Honor, we very much disagree. This juror was very similar to other jurors who have been qualified. I agree with Mr. Chakravarty that she is extremely thoughtful and has given this a great deal of thought. And we saw that reflected in her answers and in a little bit of a struggle that she was going through to be completely candid and forthright with the Court. And each side can cite sort of highlights and low lights. But in the end, I don't think Miss Clarke would have led her down any path. She knew exactly what this was about. By the time it came to the end of the questioning, she knew what the issue was. She knew what she could or couldn't do. And she said repeatedly that she could vote for the death penalty if that was what she concluded was appropriate and that while it would be a very high bar, which, of course, is not disqualifying -- it is supposed to be a high bar -- she could vote for it or she could find that it was appropriate. That's all that's required.
The government is, of course, welcome to use a peremptory on her, but I don't think she can be treated as impaired or disqualified under Wainwright v. Witt. This is the kind of intelligent, thoughtful juror that I think we should be welcoming into this process.
THE COURT: She certainly is intelligent and thoughtful. I would have to conclude she's substantially impaired though, I think, on the basis of her answers and her deportment here.
She is similar to some others we've had. I can think of maybe two or three that have both been qualified and disqualified because this is a very fine assessment here when somebody says I don't like it but maybe I could. Sometimes that's a -- that can satisfy us that that person can do it. Sometimes you continue to be left with doubt, that the words are there but the heart isn't and so on.
I actually think she was so thoughtful that she was -- in her original answer to Question 95 was sort of parsing it in a way that she kind of ruled it an invalid question because it asked for her to presume the answer in a sense. I think she may be returned to presuming the answer in the end, and that is, the middle clause, that you have decided that it was the appropriate punishment. It wasn't so much that she -- my sense, that she couldn't act on that if that's what she concluded. Her hesitancy was whether she would ever really conclude that in anything other than a theoretical sense. I don't take from her that she genuinely was prepared to, in practice, entertain both possibilities there. So -- all right.
438.
MR. BRUCK: The defense has a motion. This is the juror whose wife grew up and whose wife's brothers grew up with Officer Rick Donahue. And I don't know that extensive argument is required on this. This is not merely a witness in the case. This is a count. Count 19 of the Indictment is the shooting of, as the juror knew, by friendly fire, as the saying goes, which very -- would -- came very close to being a murder. That is, he almost died.
And the juror was familiar with many of the details. It's clear that his family followed this before the encounter at the pool when it was -- because he talked about how it wasn't known whether he was going to live or die. Then, of course, they meet at the country club, and he acknowledged that it's entirely possible they will again when this trial is over or at some point in the future.
This is way too close a connection to such an important witness and such an important victim in the case that we clearly think this juror should -- should be disqualified.
MR. CHAKRAVARTY: You know, the government is cognizant of the concern with Mr. Donahue, but what was abundantly clear is that this juror doesn't know even today much more than has been publicly known in the community at large, in fact, maybe a lot less than has been known. He also has attributed the causation of Mr. Donahue's injuries to friendly fire, not to the defendant, I think an important characteristic. But the key fact is he doesn't even recall meeting Mr. -- the witness, or the victim, Donahue. It was a chance encounter at the pool in which he recognizes that they share some -- the circles in which they travel happen to intersect. And that could be true for other witnesses as well.
But the key in assessing that and one of the reasons why we go through this interview process and don't just rely on the questionnaire is to assess the juror's reaction. And that's where this recovering lawyer, reformed lawyer, I think the Court said, he was not only analytical about it. He was completely unemotional. It was, yeah, this is a -- I'm being honest with the Court in terms of what the connection is, but this connection does not inform his view of the case in the sense of -- I think he said he doesn't know much about the case. He gave his candid opinion about what he would think if he weren't a lawyer and didn't think of having the framework with which to assess the evidence.
And then when applying the law, he made clear, I think to the satisfaction of the government, who, you know, he's a lawyer. There's some healthy skepticism on both sides as to, you know, where he might play out. But he, both in his answers and his deportment, I think is the Court's phrase, he answered those in a way that seemed sincere, that there were no extraneous influences on his assessment of the evidence in the case. For that reason, we think that the Donahue connection is certainly not disqualifying.
THE COURT: I think, as we've established by previous rulings, there are connections and there are connections. And some are more concerning than others and others are more trivial.
I think this is a problem that should excuse him from service in this case. From what I hear, his family uses the club, expects to probably use it next summer. And I think there's a danger that he would be worrying about encounters, even if they're few and chance, having served and rendered a verdict that might or might not be satisfactory to the family. So I think he should be excused for that reason. Otherwise, I found him -- he would be well-qualified as a juror but not in this case.
I think the last two we dealt with as they came up. So I think we have 517, 533, 534, and 536.
So now we talked about trying to -- we get started at 11:30 tomorrow. The question rises on how many we should try to put into the hopper.
MS. CLARKE: Not 25.
THE COURT: I agree. I was thinking somewhere between 12 and 15, something like that.
MR. CHAKRAVARTY: That's fine.
THE COURT: When I proposed those numbers, the practice has been developing that there will be some attrition, so I propose it with that expectation/hope. So it might leave us with eight or nine or something like that, which I think we could handle with a late start. You want to vote between 12 and 15?
MR. CHAKRAVARTY: We'll go for 15. Don't force us to agree.
THE COURT: Sometimes I have a chance to look ahead, and I can see that you'll need a higher number to get the net you're looking for and sometimes you don't. I just have no clue. I don't know if anybody has looked ahead to see whether there's going to be an attriting (ph) sample.
MR. BRUCK: It's going to be a long day. I think the vote might be for 12 on this side.
THE COURT: Twelve is fine. I think 12 given other stresses.
MS. CLARKE: The Court has given us four to look at.
THE COURT: From yesterday, yes. I believe they're in there. As I think I said from your master list, the two-sided list with the boxes, I think I've exceeded all of those through this group anyway, but I think that's been pretty much --
MR. CHAKRAVARTY: The government agrees with the Court's recommendations so --
MS. CLARKE: And we do, too.
THE COURT: So we'll take those out. I don't think I brought that with me. 556, 558, 568, 573. Okay.
(Whereupon upon, at 4:57 p.m. the trial recessed.)