6.Voir Dire — Jurors 536, 537, 538, 547 and 548
761 linesTHE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Since you were last here, have you been able to avoid any discussion of the substance of the case with people?
JUROR: Yes.
THE COURT: And as much as possible to avoid any media accounts of the case?
JUROR: As much as I could, yes.
THE COURT: When you see it, you put it aside?
JUROR: Yes.
THE COURT: Okay. Make yourself comfortable.
JUROR: Okay.
THE COURT: So that's the questionnaire that you filled out when you were here.
JUROR: Okay.
THE COURT: And I just want to follow up on some of the answers that you gave us.
JUROR: Okay.
THE COURT: You are a manager of information systems for a large company?
JUROR: Yes. Correct, General Dynamics Information Technology.
THE COURT: How long have you been doing that?
JUROR: I've been doing that since May of 2002.
THE COURT: What does it involve?
JUROR: Basically, I put solutions for all enterprise systems, and that can span between divisions and so forth, human resource systems, financial systems, and give the business a means of accessing information through those solutions.
THE COURT: You have employees you supervise?
JUROR: I do.
THE COURT: About how many?
JUROR: I have five.
THE COURT: We asked about social media. You use Facebook and Twitter a few times a week?
JUROR: Yeah, just a few times. It's mainly to stay in touch with family.
THE COURT: Any business use?
JUROR: No, no. It's not recommended.
THE COURT: I know. You had a brother-in-law who was deployed in Iraq for a while?
JUROR: Correct.
THE COURT: When was that?
JUROR: That was -- I want to say 2006? I can't remember off the top of my head. But it was during that time. Deployed for almost a full year.
THE COURT: Was he in combat, do you know, actual combat?
JUROR: He was. He's military police, and he was in combat.
THE COURT: He shared his experiences with you?
JUROR: Not so much. He had some kind of posttraumatic trauma over there, so didn't really talk much about it, just kind of wanted to get back into the family routine, so -- and we didn't push for answers or questions to be answered.
THE COURT: And is he your wife's brother?
JUROR: Yes.
THE COURT: Any physical injury apart from whatever psychological issues?
JUROR: No.
THE COURT: You applied to be an FBI agent once?
JUROR: I did. I did. No, it's just an interest. One of the things I -- I was watching FBI Files and I wanted to look into cyber crimes. And so I was in information technology at that point in time. There were heightened terrorist attacks through systems. And it just intrigued me, so I pursued it, and I ended up pulling back after two years.
THE COURT: Oh, were you -- I took it to be an application, but you actually worked for --
JUROR: I did. I went to Philadelphia. And the decision was made -- I thought I could decide what city I was going to reside in, and that wasn't the case. You couldn't stay in the city you process in, which was Boston. And I listed ten, and they told me that I wouldn't end up in the ten that I selected, so... And then because I had my family here, I decided to pull back.
THE COURT: Okay. Let me ask you to turn to page 20.
JUROR: Sure.
THE COURT: Question 77.
JUROR: Sure.
THE COURT: And if it's convenient, you can take the clip off of the packet there.
JUROR: Oh, thank you.
THE COURT: 77 up at the top.
JUROR: Yeah.
THE COURT: It's a multipart question, and we asked whether -- based on things you'd seen or read or learned about, whether you had formed an opinion about whether the defendant was guilty or not and whether he should receive the death penalty or not. Up to Part A you said, yes, you had formed an opinion that he was guilty.
JUROR: That's correct.
THE COURT: And as to the death penalty questions, C and D, you said you were unsure?
JUROR: That's correct.
THE COURT: Then in the next part of the question we said if you answered yes to any of these questions, as you did to Part A, would you be able or unable to set aside your opinion and base your decision about guilt or punishment based solely on the evidence presented to you in court, and you selected "able."
JUROR: Yes.
THE COURT: Can you tell us about that?
JUROR: Sure. You know, basically, as we're all -- we kind of form opinions, and we know that, I think things have to be substantiated of course. So with evidence you make a good judgment call. I'm thinking based on the knowledge I have at the moment, my opinion, it's not substantiated. So I'm just making a formal opinion. You asked me to make an opinion; I stated it.
Now, if evidence is provided and the case is overwhelming, the evidence for guilt and the sentence is penalty [sic], then that's something I have to consider. So I'm able to do that.
THE COURT: Okay. We'll come back to the penalty question.
JUROR: Sure.
THE COURT: I want to focus on the question of guilt. And it's understandable --
JUROR: Sure.
THE COURT: -- given the amount of publicity this case and events under it have generated that people have formed impressions and opinions.
JUROR: Yes.
THE COURT: You understand that in a criminal prosecution a person is -- who's accused of a crime is presumed to be not guilty, or innocent, of the crime unless the government proves that he's guilty by the evidence at trial, and proves that beyond a reasonable doubt.
JUROR: Sure.
THE COURT: A defendant in a criminal case never has any obligation to prove that he's not guilty. The default position is that he's not guilty, and the government must move the jury off that default into a position where it could find him guilty based on the evidence.
Would you have any difficulty in faithfully applying those principles if you were a juror in the case?
JUROR: No. At this point, again, I'm only basing an opinion based on what I've assimilated from the media and so forth. But if I'm presented with the situation in which evidence is provided, then I'm making a judgment call based on facts. So right now it's just opinions.
THE COURT: So if -- with respect to any of the charges, if after evaluating the evidence in the trial you were not convinced beyond a reasonable doubt that the defendant was guilty of that offense, would you be able to find him not guilty?
JUROR: Yes. And just to give you examples of why I'm stating my opinions, if I'm watching things in the media, you know, prior to attending here and knowing that I'm going to be a participant here -- if I'm watching things in the media and seeing individuals elude the police, you make a formal opinion based on what you're seeing and those events. So that's all I'm saying. I'm just being honest.
THE COURT: Uh-huh. We appreciate that.
We asked a series of questions, 80 through 82, about whether you or people close to you had witnessed the events or been personally affected in some way, and you indicated that that was not the case.
JUROR: Not to my knowledge.
THE COURT: And you haven't participated in any of what we might call support activities, Boston Strong T-shirts or One Fund or anything like that?
JUROR: No, I haven't.
THE COURT: Let's come back to the questions of the death penalty.
JUROR: Is that 77 again?
THE COURT: No, this is on page 23.
JUROR: Oh, 23.
THE COURT: We asked a series of questions directed at the death penalty beginning with Question 88.
JUROR: I'm there.
THE COURT: And 88 was a general question: If you have any views about the death penalty in general, what are they? You said you don't have an issue with the death penalty if the prosecution has presented evidence that is beyond a reasonable doubt.
You heard this morning that I described that the case may have two phases, that the first phase is to determine whether the defendant is guilty or not of a particular crime, including a capital crime which could carry the death penalty. If he is convicted of a capital crime, then the question of the imposition of the death penalty or not is put to the jury in what we call the penalty phase. That's unusual to -- that's not the usual criminal practice. Ordinarily, if someone is convicted of a crime, the judge would impose the sentence. But in a death penalty cases, the jury has that responsibility.
JUROR: Okay. I'm aware.
THE COURT: So that when you get to the penalty consideration, you have a person who has been found guilty by the jury of the capital crime, okay, beyond a reasonable doubt. So I just wanted to make sure you were focused on that.
JUROR: Sure.
THE COURT: There are things that -- in order to impose the death penalty, some conclusions have to be proved to the jury beyond a reasonable doubt in the penalty phase as well. But you understand the propositions, the questions are different in a guilt phase, that is whether he's guilty of the offense or not as a matter of fact, than in the penalty phase, where the question is given that he is guilty of this offense, what should the punishment be.
Do you understand that distinction?
JUROR: Yes, I do.
THE COURT: Okay. Does that lead you to change or modify or reaffirm the answer that you gave in Question 88?
JUROR: Well, again, it does. I mean, again, I have an opinion. I have a belief the death penalty -- I'm not against the death penalty and I -- if the death penalty is presented in the case and the guilt is there for capital punishment and we have to assess a punishment, then I am not against the death penalty if that's what it comes down to. So it's just I don't want to state I'm not against it, if it's presented to me and that is an option. And, again, based on the information that's provided, evidence, I would make a decision whether or not.
THE COURT: Right. Well, of course the question goes in the other direction as well.
JUROR: Sure.
THE COURT: And that is, if a person is convicted of a capital crime by the jury, would you have the tendency to think that it should follow that he would get the death penalty? In other words, it would be almost automatic that he would be given the death penalty if he was guilty of that crime.
JUROR: Yes. I mean, if it's hand in hand, the situation is if we found guilt, then basically it requires a death penalty. Is that what you're asking me?
THE COURT: If you would think that because he was guilty of the offense, then the question about whether the death penalty should be imposed was answered.
JUROR: So, yes, I would have to say "yes."
THE COURT: Okay. That would mean that you wouldn't be able to consider the penalty phase evidence and balance those aggravating --
JUROR: I may be misunderstanding the question, then. I just want to make sure I'm clear.
THE COURT: The penalty phase, as I say, commences only after a person has been convicted beyond a reasonable doubt of a crime that is sufficiently serious that the death penalty is a possibility.
JUROR: Okay.
THE COURT: All right?
JUROR: Yes.
THE COURT: The death penalty -- whether the death penalty is imposed is a separate matter of judgment than whether the person is guilty of the offense.
JUROR: Okay.
THE COURT: Are you with me?
JUROR: Understood.
THE COURT: Okay. In the penalty phase, the jury will be focused only on what is the right punishment for the crime we've already found him guilty of.
JUROR: Okay.
THE COURT: Okay?
And so the question is whether you would, because he was guilty, think that there was a preordained answer to that question --
JUROR: Oh, I see.
THE COURT: -- and that the answer was the death penalty, or whether you would be able to pay attention to the evidence in the penalty phase on both sides, evaluate it, and make a choice, rational choice, between one course or the other based on your evaluation of the evidence.
JUROR: Yes, I should --
THE COURT: Do you understand?
JUROR: Yes. So basically I understand it's not automatic, and what we're saying is we have two phases. So one phase to consider the guilt, and then the penalty. And am I able to then listen to statements on whether to deserve [sic] the penalty of death or not? Yes, I think I can sit through that and make an impartial decision.
THE COURT: Yeah. The question isn't whether the death penalty is automatic as a matter of law; it's not.
JUROR: It's not.
THE COURT: Because the jury has to make that. The question is: Might it be automatic in your mind?
JUROR: Yeah.
THE COURT: That's the question.
JUROR: It's not. Sorry. I know it took a little bit to get there but...
THE COURT: Well, and one of the reasons I wanted to be sure of that, because if you look at Question 89, literally -- 89, where the numerical scale -- we asked you to put yourself on a scale. 10, if you look at the question, says, "Reflects a belief that the death penalty should be imposed whenever the defendant has been convicted of an intentional murder," and that is the sort of automatic imposition.
JUROR: I understand. And not having knowledge of kind of the judicial system and how that works, I'm thinking if I found someone guilty of a crime and the penalty is death, then I thought it was automatic. But in this case, understanding there's a two-phase to it, I would have to make the same judgment call, meaning impartial, right, on the second phase of that.
THE COURT: Okay. Let's look at the question on the next page, Number 90.
JUROR: Sure.
THE COURT: Rather than selecting a number on a scale, we asked you to look at the series of propositions and see if there was one that you thought expressed your view.
JUROR: Uh-huh.
THE COURT: I want you to take a minute to just read the whole question so you have the context.
JUROR: (Complies.)
THE COURT: Okay? You selected E, which is you're in favor of the death penalty but could vote for a sentence of life imprisonment without the possibility of release if you believed that sentence was called for by the facts and the law in the case.
JUROR: Yes.
THE COURT: Is that a fair summary of your --
JUROR: It is.
THE COURT: So that means, I guess, you could -- if you thought life imprisonment was the appropriate penalty you would -- after assessing the evidence you would go in that direction?
JUROR: That's correct.
THE COURT: And vice versa?
JUROR: Correct.
THE COURT: Follow-up?
MR. CHAKRAVARTY: Just very briefly. Good afternoon. My name is Aloke Chakravarty. I'm one of the prosecutors.
JUROR: Nice to meet you.
MR. CHAKRAVARTY: I'm going to test your patience a little bit and just belabor just this last issue that the judge was clarifying.
JUROR: Okay.
MR. CHAKRAVARTY: The fact that there's -- it's a bifurcated process, essentially, the guilt decision being separate from the penalty, which is a different analysis.
JUROR: Uh-huh.
MR. CHAKRAVARTY: The judge instructed you earlier today that there are aggravating factors and mitigating factors, and some of those mitigating factors could be characteristics about the defendant.
JUROR: Sure.
MR. CHAKRAVARTY: That might not be about the crime but about the defendant. So is that the kind of thing that you would keep your mind open to in the penalty phase?
JUROR: Yeah. I guess not having gone through something like this, I think I have to keep open to all -- you know, basically any option, right, any decision or any evidence or even witnesses at that point, right? I'm trying to be fair; I'm trying to be impartial. So I'm basically trying to make an assessment based on the information that's coming in. Right now I lack the knowledge. I've never gone through this process before. So I'm able to be receptive to these things and participate as much as I can. I don't know if that answers your question.
MR. CHAKRAVARTY: It does. I'm just following up on that, though.
JUROR: Sure.
MR. CHAKRAVARTY: It's one thing to be open to some things --
JUROR: Understood.
MR. CHAKRAVARTY: -- and it's another thing to genuinely be able to consider and withhold making a decision until you've seen kind of what that entire sum of evidence is.
And do you have a bias one way or the other as we sit here today?
JUROR: No, I don't. I don't. I mean, again, it's what's been presented to me to date, right? So if something else is presented -- it's a matter of persuading me to -- one way or the other, and that can only be done by providing, you know, facts and evidence and, I guess, information.
MR. CHAKRAVARTY: And just to clarify that Question 89 which is on page 23, you circled the 10, which was the extreme, and the judge asked you about whether by that you meant that you would automatically impose the death penalty. And after clarification it sounded like you -- can you explain why you circled a 10 there if it --
JUROR: Sure. Again, not understanding the full judicial process, I'm thinking if someone's been found guilty of a capital crime and the penalty is death, then I am strongly in favor for that. If it's automatic. I didn't know it was a two-phase process, right? So...
MR. CHAKRAVARTY: So you thought the law required that?
JUROR: Yeah, exactly. That's why I said earlier it's required, and I find out it's not.
MR. CHAKRAVARTY: Okay. So now with that clarification, where would you say you are on this?
JUROR: I would say I'm in probably the 5 or 6 range.
MR. CHAKRAVARTY: Thank you.
JUROR: Okay. You're welcome.
MS. CONRAD: Good afternoon, sir. My name is Miriam Conrad. Excuse me. Can you hear me okay?
JUROR: I can.
MS. CONRAD: I'm one of Mr. Tsarnaev's lawyers. And I apologize for my voice.
JUROR: No problem.
MS. CONRAD: Can I just ask you: On page 6, Question 13, you indicated that your wife is a nurse?
JUROR: She is.
MS. CONRAD: And where is she a nurse?
JUROR: She's a nurse at the Brigham and Women's Hospital.
MS. CONRAD: And was she a nurse there at the time of the marathon bombing event?
JUROR: She is. She's been employed there for 17 years.
MS. CONRAD: And in what unit was she?
JUROR: She's in the postpartum.
MS. CONRAD: Okay. Was she in that unit at that time?
JUROR: I can't recall. I don't -- honestly, placing it back to that time frame, she was employed there. She is a nurse there. I just can't recall as far as the timeline if she was there the day of.
MS. CONRAD: She was there the day of?
JUROR: No, no, I can't recall the day of if she was working or not.
MS. CONRAD: But I'm sure you're aware that a number of victims and survivors of the bombing went to the Brigham and Women's for treatment?
JUROR: Yes, I am.
MS. CONRAD: Do you know if she was involved in treating any of those victims?
JUROR: Not to my knowledge, honestly.
MS. CONRAD: Do you know if she was exposed or saw any of them or any of the activity?
JUROR: Yeah, sure. In the hospital they actually have protocols to make everyone aware of the situation, so she was aware of what was going on.
MS. CONRAD: And did she talk about that?
JUROR: There was not much to talk about. She was just put on alert as most hospitals do during emergency times.
MS. CONRAD: And do you know if she participated in any activities relating to the marathon bombing or Brigham and Women's involvement in that?
JUROR: Again, not to my knowledge and nothing that she shared with me.
MS. CONRAD: Are you friends with her on Facebook?
JUROR: With my wife?
MS. CONRAD: Yes.
JUROR: Yes, I am.
MS. CONRAD: And are you aware that she recently changed her profile picture to Brigham and Women's Strong?
JUROR: Yes, I am aware, due to the recent death of a doctor.
MS. CONRAD: So that wasn't related to the marathon bombing?
JUROR: Oh, no, no, no.
MS. CONRAD: Okay. Thank you very much for clarifying that.
JUROR: You're welcome.
MS. CONRAD: And you actually were an FBI agent, right?
JUROR: No, never. I was just an applicant.
MS. CONRAD: Oh, I'm sorry. I thought you went to Philadelphia.
JUROR: On interviews. I never completed the process.
MS. CONRAD: I see. I'm sorry. I totally misunderstood.
JUROR: I'm sorry.
MS. CONRAD: So you never went through the training process?
JUROR: No, never went to Quantico.
MS. CONRAD: And can you tell us a little bit more about why you were interested in working for the FBI? You mentioned an interest in terrorism and cyber crime?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: Go ahead.
JUROR: Basically, as I said, my interest came from just watching the FBI Files. I was really interested. Being in information systems, you tend to be someone who deals with a lot of challenges on a day to day, right? No one calls IT when everything is working. So I just -- I found interest in that.
And one day actually I went onto their website. They said they were looking for IT personnel, you know, to help during those cyber attacks. And I submitted my application. And because of my background -- I'm also bilingual, so I speak Spanish. And so they actually put me on the fast track. So within a couple of months I was already in Philadelphia interviewing.
MS. CONRAD: Now, is that an opportunity that you think you might try to pursue in the future?
JUROR: No. I have, you know, small ones now, and so my focus is providing for them. And I'm kind of stable in my professional career right now.
MS. CONRAD: And you have two sons. Is that correct?
JUROR: I do.
MS. CONRAD: And one of them is eight years old?
JUROR: Yes, the youngest.
MS. CONRAD: And I'm sure you're aware that the crimes charged in this case include the death of an eight-year-old boy?
JUROR: Yes.
MS. CONRAD: And how do you think the fact that you have two sons, young sons, of your own would affect your ability to be impartial in this case?
MS. PELLEGRINI: Objection.
MS. CONRAD: That's exactly the question we talked about.
THE COURT: Go ahead. Go ahead.
MS. CONRAD: Thank you.
JUROR: Should I answer?
THE COURT: Yes.
JUROR: I think, you know, as a dad losing a child, I mean, there's definitely some emotional, you know, issues that one would go through, and I can relate to those issues. I think one of the things is, you know, I'm here. I'm imperfect myself. I can't condemn others. But I'm willing to sit and understand situations. So -- and basically I'm just trying to relate my beliefs.
My beliefs is I don't condemn others; I can only participate in situations in which I've been provided some, how can I say? I won't say "authority," but given a privilege to do so. I think I can be impartial to understand situations. And I may be going around the question because I feel that -- I don't know. Sorry. I'm trying to answer it. I'm trying to not come out too -- how can I explain it? I'm trying to put my thoughts together. I'm sorry.
MS. CONRAD: Why don't you just take a minute and think it through --
JUROR: Sure.
MS. CONRAD: -- because really, you know, what I'm asking is I understand and appreciate how much you want to be impartial and keep an open mind --
JUROR: Sure.
MS. CONRAD: -- but we're only human.
JUROR: Exactly.
MS. CONRAD: And we're really just asking you, because you know better than we do, how you think you would feel.
JUROR: Sure.
MS. CONRAD: Recognizing it's difficult to predict, how you think you would feel listening to testimony and seeing images that depict the death of an eight-year-old boy.
JUROR: Sure.
MR. CHAKRAVARTY: Objection, your Honor. The initial question was about how it would affect his --
THE COURT: Well, that's all right. Answer the question just put.
JUROR: Sure. So sorry.
Well, again, I think there -- being human, I think there's an emotional aspect to that. And I think that having a family can, you know, have an impact on my decision. I hope that answers your question.
MS. CONRAD: It does. Thank you.
And can you turn to page -- I think I lost my page. It's Question 92, and I think it's on page 25.
JUROR: Sure.
MS. CONRAD: Sorry about that. Can you just explain that to me?
JUROR: Sure. Oh, I'm sorry. I kind of figured that that was going to be one. It was a little cryptic. But basically, my beliefs -- I'm of Christian belief, right? So I don't think that there's -- I can condemn someone else or judge someone else. I'm imperfect myself.
MS. CONRAD: I'm sorry. Can or cannot?
JUROR: I'm sorry?
MS. CONRAD: I couldn't hear you.
JUROR: Oh, I said I cannot. But again, as part of my beliefs, we are asked to, you know, again, enforce our laws of principality. So if there is a law in which I am required to make a decision, again, I abide by those laws. So just being a resident of those principalities.
MS. CONRAD: So I'm not quite sure how that relates to your views on the death penalty. If you could just expand on that.
JUROR: Sure. I mean, again, my personal belief, I'm neither strongly in favor or against it, right? So I can make a decision based -- if it's been granted to me to participate in such a situation where I have to determine someone's penalty, whether it's death or not. So I'm abiding by the laws in which I reside in, right?
MS. CONRAD: So going back to Question 89 on page 23 for a minute, that gave sort of a range from 1 to 10 --
JUROR: Uh-huh.
MS. CONRAD: -- of positions with respect to the death penalty. And you chose the one that was most strongly in favor of the death penalty.
JUROR: Uh-huh.
MS. CONRAD: So I'm really just trying to gauge -- I get that you thought that it was automatic.
JUROR: Right.
MS. CONRAD: But, for example, why you chose 10 instead of 9 or 8.
JUROR: Again, assuming that if someone's been found guilty of a capital crime, then guilt to me would be that -- that it would be automatic to sentence to the death penalty. So I basically said if -- based on the evidence that's been provided I found the person guilty, then I would assume that that would be automatic death penalty.
MS. CONRAD: But your own personal views.
JUROR: Uh-huh.
MS. CONRAD: I mean, this is really more a question of, you know, philosophy or policy as opposed to something that you would do in a particular case, at least in this question, as I read it. So looking at the question that way --
JUROR: Well, this one wasn't about belief, right?
MS. CONRAD: I'm sorry?
JUROR: Oh, sorry. 89?
MS. CONRAD: Just take your time, please, and read it over.
JUROR: Okay.
(Pause.)
MS. CONRAD: So looking at it more as a question of philosophy or policy --
JUROR: Sure.
MS. CONRAD: -- where do you think your views would tend to --
JUROR: I think I restated it in my understanding, and I said a 5 or 6 now that the question has been clarified for me.
MS. CONRAD: Okay. And do you think that if the defendant -- if a defendant were convicted of killing a child, would you be able to consider facts beyond -- about the defendant himself before deciding about the death penalty or would you think that the death penalty would be the appropriate punishment?
JUROR: Well, this goes back to understanding aggravation and mitigation, right? So if the mitigation is something that I'm called to listen to, then I would have to base it on that information coming in.
MS. CONRAD: And finally, you mentioned that your brother-in-law had been in combat in Iraq?
JUROR: Yes.
MS. CONRAD: And do you know if he saw any deaths or injuries?
JUROR: As I said, he didn't share any of that with us and we didn't probe just because we didn't want to add to the trauma.
MS. CONRAD: So if there were to be evidence in this case that a motive for the bombings was military action in Afghanistan and Iraq, would your brother-in-law's service in those arenas affect your ability to consider the evidence fairly and impartially?
JUROR: Again, it's experiences that bring me here, right, and makes me participate as part of the jury. So I think they all play a part -- as far as what decision, I don't know. I don't understand the information that's coming in right now, so -- what I mean, that's going to be presented to me. But I can -- with confidence I can say that I can assess things and be somewhat analytical and, you know, distinguish that.
I just don't know -- it's hard for me never participating in that to say it's not going to have an emotional effect on me or it is. So I can just say I can try to be as impartial as possible, but I think being human, there are certain aspects where it plays on your emotions as well, so...
MS. CONRAD: Thank you very much.
JUROR: You're welcome.
THE COURT: Thank you, sir. I appreciate it.
JUROR: All set?
THE COURT: Yes. Just leave that there.
JUROR: Okay. Have a nice day.
(The juror exits the courtroom.)
THE COURT: All right. We'll take a break. Maybe 2:15 at this point? Does that sound all right?
UNIDENTIFIED ATTORNEY: Sure.
(The Court exits the courtroom and there is a recess in the proceedings at 1:25 p.m.)
COURT CLERK: Juror No. 537.
COURT CLERK: Juror No. 537.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Have you been able to avoid discussion of the substance of the case with people?
JUROR: Pretty much. Some people are -- ask a lot of questions, and I try to politely put them off.
THE COURT: Okay. Media reports as well, you tried to avoid?
JUROR: Uh-huh.
THE COURT: As best you could?
JUROR: Yes.
THE COURT: So there's the questionnaire that you had filled out. We're going to follow up on some of the information you gave us, all right?
JUROR: Okay.
THE COURT: Tell me a little bit about your work as a data shepherd. That's a term I hadn't heard. I kind of like it.
JUROR: Well, it's very difficult to describe what I do. I'm on a team at work that's responsible for the basically customer data for our company. And we're responsible for making sure it's at the right place, at the right time, and that the quality is pretty good. Since it's across multiple systems and multiple databases, we shepherd it around.
THE COURT: Is it a large company?
JUROR: It's large-ish. It's not huge. It's local.
THE COURT: Okay. Before that, you were a business systems consultant. Is this the same thing as data shepherding, dealing with business systems?
JUROR: Pretty much. For most of my work experience, I worked in kind of back-end applications, applications that support how a company does business. So financial applications, sales applications, that kind of thing.
THE COURT: Okay. We asked a little bit about use of social media. If you want to look on -- this is at the bottom of Page 10, Question 29. And you -- I guess you say you post family pictures, music videos you like, and other random things on Facebook a few times a month.
JUROR: Yes.
THE COURT: Basically. And then there's a sort of literary blog that you contribute to, is that it?
JUROR: It's a website.
THE COURT: Website. And you post there from time to time?
JUROR: Not so much recently but, yes, certainly in the past.
THE COURT: Then on the next page, at the top, in Question 30, you say you have Instagram, Twitter, and Tumblr accounts but you don't post. Do you follow other people's tweets?
JUROR: Somewhat. I'm not --
THE COURT: Sporadically?
JUROR: Yeah, sporadically, yeah. I don't have a smart phone, so I'm kind of disconnected to a lot of that.
THE COURT: So let me ask you to turn to Page 20, Question 77, which is a multipart question. We asked about whether you had formed an opinion about certain matters based on what you heard or read in the media and otherwise, including whether the defendant was guilty. You said, yes, you had an opinion. You had formed an opinion that he was guilty.
JUROR: Uh-huh.
THE COURT: And as to Part (c), which was whether you'd formed an opinion that he should receive the death penalty, you said "no"; and as to (d), that he should not receive the death penalty, you said "yes."
Then in the next section of the question, we said, "If you answered yes to any of these questions, would you be able or unable to set aside your opinion and base your decision on guilt and punishment solely on the evidence that will be presented to you in court?" And you checked the box that said "able."
JUROR: Uh-huh.
THE COURT: And then you added, "I believe I could base my decision about guilt on the evidence. However, I'm less certain that I could set aside my opinions about the death penalty."
JUROR: Yes.
THE COURT: So let's separate those two for a minute, okay?
JUROR: Okay.
THE COURT: Let's talk about the question of guilt or not.
JUROR: Uh-huh.
THE COURT: You said you have an opinion --
JUROR: Uh-huh.
THE COURT: -- now as to what you've seen in the media and wherever. I'm sure you know that, in a criminal prosecution, an accused is presumed to be innocent, or not guilty, unless the government proves the person guilty of the crime charged by evidence at the trial and convinces the jury beyond a reasonable doubt that the person has committed that crime. You're familiar with those principles?
JUROR: Yes.
THE COURT: You have to answer verbally so she can take down the answers.
JUROR: I'm sorry. Yes.
THE COURT: Would you have any difficulty in basing a decision, as a trial juror, solely on the evidence produced in the course of the trial rather than matters you'd heard before you were asked to be a juror or that you otherwise came to have information about from some other source?
JUROR: I think I would be able to make a decision based on the evidence at trial.
THE COURT: Okay. We'll come to the questions about the penalty in a minute, but there are a couple of other questions in the meantime. We asked about whether you or anybody close to you had, first of all, been directly affected by the explosions and so on, and you said "nobody." This is, again, if you want to look at the bottom. It's Question 80.
JUROR: Yes.
THE COURT: On the next page we asked whether there was some other effect that people experienced, like sheltering in place on the 19th, so on and so forth. I guess you said your husband, who works in Boston, had to do that.
JUROR: Yes.
THE COURT: Were you yourself affected?
JUROR: No, not with the shelter in place.
THE COURT: Was the effect on your husband a substantial one, an inconvenience or a serious inhibition?
JUROR: It was upsetting, but he -- it was what it was, I guess. He was not traumatized, I would say, by it. He was certainly concerned and upset but not --
THE COURT: Where were you that day?
JUROR: I was at work out in Natick.
THE COURT: So you weren't affected by the sheltering order?
JUROR: No.
THE COURT: Or request, whatever it was?
JUROR: No, I was not.
THE COURT: In the next question, we asked about various kinds of support activities people might have participated in. You think some members contributed to the One Fund, and you don't remember whether you did?
JUROR: I don't think -- I might have put money into a container or something at a business, but I don't -- I don't think I wrote a check or anything like that.
THE COURT: Question 83 on Page 22.
JUROR: These are out of order.
THE COURT: Yes. Mine were, too. 22 follows Page 9.
JUROR: Yes, I've got it.
THE COURT: You say -- so we asked about other connections, and you say your husband attended MIT as an undergrad.
JUROR: Yes.
THE COURT: You know that one of the victims of the crimes alleged here is an MIT police officer?
JUROR: Yes, I do.
THE COURT: Does your husband's MIT connection give you any concern about an effect on your impartiality in the case?
JUROR: No.
THE COURT: Is he an active alum?
JUROR: I believe he contributes but doesn't participate in alumni activities or anything like that.
THE COURT: I guess the rest of that answer is you indicate you used to work nearby some of the relevant locations.
JUROR: Yes. I used to work in Watertown.
THE COURT: Would that have any effect on your service as a juror in this case?
JUROR: No.
THE COURT: How long ago was that that you worked there?
JUROR: About seven years.
THE COURT: Now, on Page 23, beginning with Question 88, we asked a series of questions about the attitude toward the death penalty, so we'll go through some of these now, okay?
88 itself is a general question. If you had views in general about it, what are they? You say you struggle with it. You think -- you'd like to think that you're against taking a life for any reason but that you think that some acts may be so heinous that the death penalty should be considered, and you're not sure where to draw the line.
JUROR: Yes.
THE COURT: Anything you want to add or qualify there?
JUROR: No. I mean, I think if I were personally affected, I would probably -- I would feel more strongly. But just kind of a dispassionate observer, I am against the death penalty.
THE COURT: Okay. Let me ask if you'd turn to Page 24, Question 90. Here we set forth a variety of different formulations of what people might think about the death penalty and what they -- how they might respond to being considered to participate in its decision-making about it. Why don't you just take a minute to review the whole question. Then I will focus on the answer you gave. Okay?
JUROR: Uh-huh.
THE COURT: You selected (c), indicating you're opposed to the death penalty, but -- it goes on to say, "But I could vote to impose it if I believe that the facts and the law in a particular case called for it." Does that get your view, or do you have to amend that in any way?
JUROR: I fall between (b) and (c), I think. I have very few beliefs that are set in stone, so I don't like to make definitive statements about anything. But, as I have thought about this a lot, I probably tend more to (b) now than to (c), but it's between those two.
THE COURT: Okay. In referring to (b), I imagine you're looking at the portion of the statement that says you would have a difficult time voting for it.
JUROR: Yes.
THE COURT: I gather you wouldn't go so far as to say you have an impossible time doing it? You could never do it? That would be (a). I just draw your attention to (a). You could never --
JUROR: Yes. I really don't know. Since I haven't been in that situation, I can't say.
THE COURT: You may have learned something this morning that you didn't know before, and that is, I gave a little instruction --
JUROR: Exactly, yeah, yeah.
THE COURT: -- about the process. Of course, the process in a penalty phase occurs only after the jury has convicted a person of a capital offense that carries the possibility of the death penalty. So the jury has already decided this person is guilty of that offense.
JUROR: Uh-huh.
THE COURT: From there then the question is what is the appropriate punishment of the two available alternatives? And there will be evidence presumably from the government suggesting this is an aggravating circumstance that calls for a greater-than-usual punishment. There will be mitigation evidence from the defense to say a life sentence is perfectly appropriate and sufficient and so on and so forth. We ask jurors then to think about all of that, see what it means to them, and then make their choice. If you were in that situation, you know, hypothetically -- you don't know any of the evidence. You push yourself forward to that circumstance. Can you give us your self-assessment about whether you think you would be able to make either choice or whether you would be impaired in some way in making a choice for the death penalty because of your views?
JUROR: I think it would be very difficult to convince me to impose the death penalty. There would be a very high bar set for that.
THE COURT: Okay. Let me ask you to look at Page 25, at Question 95, at the bottom. It's a bit of an awkward question.
JUROR: Yes.
THE COURT: Because it asks you to first assume that you found it appropriate and then asks whether you could vote for it. I guess you're pointing out the contradiction -- the possible contradiction there.
JUROR: Uh-huh.
THE COURT: I think what it was getting at perhaps -- and I'd like you to think about it -- is the distinction between making an intellectual assessment and coming to a conclusion about appropriateness, for example, and then conscientiously, in your whole self in a sense, would you be able to follow through on that conclusion and actually vote for it?
JUROR: That's a good question. I don't know.
THE COURT: Okay. Follow-ups?
MR. CHAKRAVARTY: Thank you, your Honor. Because that was such a good question, I will choose to kind of go with it a little bit.
The penalty phase of the proceeding comes after a conviction, meaning the jury has agreed that the person has committed the crime. I'm not saying in this case. I'm saying in any case. Then, as the judge said earlier, there's a presentation of evidence that goes to the punishment and the aggravating factors as well as mitigating factors that may be presented. At no time does a juror ever have to vote for the death penalty.
JUROR: Uh-huh.
MR. CHAKRAVARTY: In that context, could you not just listen to the evidence but actually be persuaded to vote for the death penalty in that circumstance?
MS. CLARKE: I don't know if that's the question, your Honor, so I'd object.
THE COURT: I think it should be reformulated.
MR. CHAKRAVARTY: I'll break it down to a couple smaller questions. One is: Do you have a -- aside from your beliefs against the death penalty, you feel that you would go into that proceeding with a bias against giving the death penalty?
JUROR: I think, as I said before, it would have to be a fairly high bar for me to accept the death penalty. So if that's a bias, then I guess I would be biased.
MR. CHAKRAVARTY: So the judge also instructed you this morning about aggravating factors would have to be proved beyond a reasonable doubt.
JUROR: Right.
MR. CHAKRAVARTY: You say it's a high bar. Do you mean a bar higher than that?
MS. CLARKE: Judge, that's asking for a --
THE COURT: I agree. You don't have to answer it.
MR. CHAKRAVARTY: So assuming whatever that bar is is met and you've consciously come to that decision that that would be what the facts and the law call for in a particular case. You said in your questionnaire that -- first go to, I guess -- on Page 25 you wrote, "I'm not sure how I could decide the death penalty was the appropriate punishment but then not vote for it."
Understanding you have the right to vote for however you deem fit regardless of what the other jurors do -- think, again, given that circumstance, do you feel like there would be some restriction on your ability to act on that conscious decision?
MS. CLARKE: Judge, I'm not -- well, perhaps the juror can understand it, but I don't get the question.
THE COURT: You can answer that if you're able to.
JUROR: Are you asking, if I believe that the death penalty was the appropriate punishment, then I could -- I wouldn't have any qualm about voting for it.
MR. CHAKRAVARTY: Not a qualm. It's not about qualms. It's about whether that's something that would inhibit your ability to act on what you had decided.
MS. CLARKE: Well --
THE COURT: No. Go ahead. You can answer that.
JUROR: I guess not. If you phrase it like that, I can't think -- if I thought that that was the right thing to do, then that would be what I would vote. So --
MR. CHAKRAVARTY: So when you wrote on 95 that -- you check-marked the box "no" to whether you could conscientiously vote for the death penalty if you had decided that it was appropriate. How do you reconcile that with what you're telling us now?
JUROR: Well, I checked "no" and then I scribbled it out. And then I sort of said I'm not sure, and I don't really understand the question the way it's phrased.
MR. CHAKRAVARTY: Okay. That's actually helpful to clarify that you scribbled that out. All right.
So on -- going back a little bit to Question 77.
THE COURT: It's Page 23 -- no, I'm sorry, 20, 20. My mistake.
MR. CHAKRAVARTY: So Question 77, you wrote in that you were able to set aside your opinions on the issue of guilt, I think, is what the -- the judge asked you about. At the bottom you said, "I'm less certain that I could set aside my opinions about the death penalty." And so do I take from that that your opinions that you had indicated that Dzhokhar Tsarnaev should not receive the death penalty, you were less certain that you could set that aside?
JUROR: Correct.
MR. CHAKRAVARTY: And the body of information that you would have to make the decision about guilt -- excuse me, that you currently have about guilt or punishment, I assume, is the same body of information? Yet, you were able to set aside the opinion with regards to guilt, but you're not confident with regards to your ability to set it aside with regard to punishment?
JUROR: Correct, because -- well, I think, again, it gets back to the high bar. It would be -- I would have trouble voting for the death penalty for anyone, not just in this case.
MR. CHAKRAVARTY: Okay. So another way of trying to get at the same issue, is that trouble going to impair your ability to review the evidence of aggravation and mitigation and kind of make your own rules with regards to whether the death penalty should be imposed as opposed to follow the Court's instructions?
JUROR: I guess I really can't answer that because I don't know how -- I don't know how it works. I don't know how the instructions are given for the death penalty versus life imprisonment. So if there's a spectrum and the spectrum says if you -- if these questions are answered yes, then it has to be the death penalty, then that would be one thing. But I don't know how it works, so I really can't answer that, I don't think, probably to your satisfaction.
MR. CHAKRAVARTY: So --
THE COURT: Maybe I could just try to clarify that a little bit for you. Without getting into the intricacies too deeply, you heard me say there will be presentations by the government presumably of aggravating factors and by the defense of mitigating factors. There will be specific propositions that will be suggested that if you found it to be true, as a matter of fact, it could be accepted, for example, as an aggravating factor, it will be something that will be asserted as a factor about this case which makes this worse than other cases. So the government is essentially asking you consider the evidence and see if you find, as a matter of fact, that this factor is present in this case. You would have to find that beyond a reasonable doubt.
On the other side, the defense would propose propositions that, if found to be supported by the evidence, would tend to mitigate the penalty to be applied. And the jury would be asked to consider whether they found those things to be facts in the case. You heard me say, if a mitigating factor were found by the juror, that juror could consider that mitigating factor in making a determination.
It's not that there are rules that say, if the boxes are checked, you come out this way. There is some discipline in that each side will suggest a set of propositions to you, and you'll consider whether those have been proved or not. Then you'll consider the other side's propositions and whether those have been proved. Then you'll assess all of that. And in the end, the kind of summary question that's put to the jurors is, if you find aggravating factors and if you found or didn't find mitigating factors, is the weight of the aggravating factors sufficient for you to say this is a case for the death penalty or not? That's kind of a summary. Does that help?
JUROR: It does help. I don't know that it changes my answer at all. I think it's wrong to take a human life.
THE COURT: Take your time.
JUROR: But in some cases I understand why you would want the death penalty.
MR. CHAKRAVARTY: Give you a moment.
JUROR: No, I'm fine.
MR. CHAKRAVARTY: The last statement you said in passive voice, and you say that because -- I want to get beyond the theoretical. It's clear that you're leaving open the possibility intellectually that you could arrive at that decision. But, as a practical matter, could this be something that you ever see as something you would be capable of doing, of actually casting a vote to take somebody's life?
JUROR: Probably not. Seeing as if I were ever in a case or in a situation where I felt it were appropriate, I probably would not be on the jury because I would be too close to the situation in some way, shape or form.
MR. CHAKRAVARTY: Just one final question. It's a little bit -- hopefully, a little bit relieving from this.
JUROR: That's fine.
MR. CHAKRAVARTY: On Question 78, you said there had been a lot of discussion, and you were generally an open person and you had communicated your opinions to others about the case. If you could just clarify what kinds of opinions were these types of opinions?
JUROR: These kind of discussions that we're having right here and even before -- definitely before I was called for jury duty. Just something people talk about. So really just discussions about when the whole presumed innocent and the death penalty and just people discussing what their beliefs were and some of them saying, Oh, yeah, definitely on this side and others saying maybe not so much.
MR. CHAKRAVARTY: Thank you.
MS. CLARKE: Thank you. Good afternoon. My name is Judy Clarke. I'm one of the lawyers for Mr. Tsarnaev. And I'm going to go back to the death penalty if you don't mind.
JUROR: Okay.
MS. CLARKE: It's pretty clear that you've thought about it.
JUROR: I've thought about it a lot.
MS. CLARKE: And thought about it a lot. And I certainly appreciate that. It seems from your answer in 88 and 89 that you do envision a place for the death penalty in our society.
JUROR: I don't know in our society. I think in some societies but --
MS. CLARKE: Right. We happen to be the society that --
JUROR: Yes.
MS. CLARKE: Let me ask it this way: If you were in the legislature, I take it you would vote against it?
JUROR: Yes, I think I probably would.
MS. CLARKE: But you're not. And the Congress has given us the death penalty for certain federal offenses.
JUROR: Uh-huh.
MS. CLARKE: You understand that?
JUROR: Yes.
MS. CLARKE: I guess really the path I want to go down is you're aware that it's not disqualifying to be against the death penalty and sit on a capital jury.
JUROR: Uh-huh.
MS. CLARKE: Right?
JUROR: Yes.
MS. CLARKE: And that seems fair, to have people with both viewpoints --
MR. CHAKRAVARTY: Objection, your Honor.
MS. CLARKE: -- sitting on a capital jury.
MR. CHAKRAVARTY: Instructing on the law of qualification.
MS. CLARKE: Okay. I guess what all we ask of jurors in that situation is to listen to the evidence. You can do that?
JUROR: Uh-huh.
MS. CLARKE: I think she wants a yes.
JUROR: I'm sorry. Yes.
MS. CLARKE: You'll get us both in a lot of trouble.
Debate with our fellow jurors, you can do that?
JUROR: Yes.
MS. CLARKE: And, in fact, I think you said, with regard to guilt, you can make a decision based on the evidence at the trial.
JUROR: Yes.
MS. CLARKE: Even though you held an opinion that Mr. Tsarnaev is guilty.
JUROR: Yes.
MS. CLARKE: And I guess that's all we ask in the penalty phase, is that you listen to the evidence presented.
JUROR: Yes.
MS. CLARKE: Could you do that?
JUROR: Yes.
MS. CLARKE: Consider all of that evidence with your fellow jurors.
JUROR: Yes.
MS. CLARKE: Weigh the aggravating evidence against the mitigating evidence.
JUROR: Yes.
MS. CLARKE: And come to a decision.
JUROR: Yes.
MS. CLARKE: And then where the rubber meets the road is if you decided -- if you decided -- if your conscience -- if in your heart you decided, based on the weight of the evidence that the death penalty was the appropriate sentence -- that's your decision; you've made it -- could you follow through on that decision?
JUROR: Yes, I guess I could, but, again, I -- not having been there, I really can't say.
MS. CLARKE: You've never been there, but that's really --
JUROR: Yes.
MS. CLARKE: I guess we're trying to put you there --
JUROR: I know.
MS. CLARKE: -- as closely as we can without asking you if you're for the death penalty or against the death penalty in a particular case. If you make the decision in a particular case that it's the right thing to do, if your conscience tells you the death penalty is the right result, could you actually vote to impose it? And that's really the question.
JUROR: Yes, I believe I could.
MS. CLARKE: Okay. Thank you very much.
THE COURT: Okay. That's it. Thank you.
JUROR: Thank you. Just leave that there.
COURT CLERK: Juror No. 538.
COURT CLERK: Juror No. 538.
COURT CLERK: Sir, over here, please. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Thanks for your patience.
Have you been able to avoid discussing the substance of the case since you were last here with anyone?
JUROR: Yes.
THE COURT: And also, as much as possible, avoid contact with media reports about the case?
JUROR: Yes.
THE COURT: Okay, good.
That's the questionnaire that you filled out when you were here last. We're going to follow up on some of the information you gave us there.
JUROR: Okay.
THE COURT: So tell us about your current employment. You're the project manager for a contracting company.
JUROR: Correct.
THE COURT: What kind of work does the company do?
JUROR: The one across the street is an example.
THE COURT: You're responsible for that?
JUROR: Yup. Not personally but --
THE COURT: We won't hold it against you.
JUROR: Large scale, yeah.
THE COURT: What, in general terms, does the project manager do?
JUROR: So I'm on the preconstruction side, which is estimating and purchasing the different trades for the job. So I work with the owner early on to help them cost the job, estimate the job, as they try to put a deal together, and then eventually, once we go forward, I'll actually purchase the concrete, the steel, the different trades, and then kind of hand it off to the wonderful folks in the field who actually build the building.
THE COURT: Then you'll move on to your next project?
JUROR: Yes. They call it the preconstruction side.
THE COURT: Looks like from your form you're a reformed lawyer.
JUROR: Yes.
THE COURT: You were general counsel at the last company you were with, I guess.
JUROR: Assistant, yes.
THE COURT: Okay. Fair enough. Was it a conscious change, or was it one of those things that presented itself and --
JUROR: Architecture was my undergrad, and then I thought about doing construction law. That was the plan. And a good clerkship out of -- during law school turned into a full-time job for the next six years. And when that company sold, my wife and I had moved back here where she lives and we live now. And I knew of this company I work for now, and I made a career change.
THE COURT: Uh-huh, okay. Good. Your wife, you tell us, is a pediatrician?
JUROR: Yes.
THE COURT: Where is her practice generally?
JUROR: At Children's in town, in the city here.
THE COURT: As I'm sure you know, the events, the bombing and aftermath, when people were injured, a lot of the Boston hospitals were involved in that, including Children's, I believe. Did she have any involvement in it?
JUROR: No. She's a developmental pediatrician, so she's more office hour, nonemergency type issues.
THE COURT: Is her office at the Children's Hospital site, or is it at an off-campus?
JUROR: It's on the campus, on Longwood. It's -- but it's not in the hospital.
THE COURT: Was she -- do you know whether she was there the day of the Marathon?
JUROR: I do not recall to be quite honest. I feel like she was not because we would have discussed that, and it would have been a bigger issue. But I'm not a hundred percent sure on that. That's Patriots' Day. I believe I have that off, and I believe she had that off, too, so --
THE COURT: We asked -- this is at the top of Page 11, Question 30. We asked people about social media that they might use. You say you have a Twitter account that you use mostly for sports, is that it, tracking sports?
JUROR: I did for a while. It's kind of annoying, but, yes, I subscribe to a couple sports feeds, I guess.
THE COURT: I see. Okay. And Instagram, you say you have an account, but you don't use it?
JUROR: Yes. I'm told I should use it but I do not.
THE COURT: Let me ask you to turn to Page 20, Question 77. In this question we asked whether, based on things you'd seen or heard in the media or from other sources, you had formed opinions about various matters and as set forth in Subparts (a), (b), (c), and (d). And I guess, in the end, each of them you answered "unsure," although for (a) and (b) you first put "yes" and "no." And then you wrote in on the side, "assuming I had to make an opinion, then, yes." Could you exculpate that for us? Just (a) and (b) right now. We'll get to (c) and (d) later.
JUROR: I guess I was struggling with the fact that, if I'm trying to make a decision without going through a case or without knowing all the facts, without sitting through a trial, this would be my opinion based on the information I have, which is limited but it's media driven.
I'm also -- the struggle is, as a lawyer, not practicing but as a lawyer, I know there's a process and that you have to go through all that process. So when I was filling this out, I had to remember to put on different hats here and try to stick with what I believe in. And, one, if I had to just make a guess, this is what I would guess; and, two, I think there's a process to follow, and I think that, if you follow that process, that -- you know, that would be the correct result in my opinion.
THE COURT: Right. We're asking this question because it's understandable, given the amount of coverage that these events had, that people might have impressions or opinions about it. What we really want to get at is, even if that's the case, will a prospective juror be able to put aside any opinions that derive from that kind of information and be able to participate in the case receptive only to the evidence that's presented in the case and considering only that.
So we asked that in the second part of the question down below. If you had an opinion, would you be able or unable to set it aside and decide the case on the evidence presented in the court? You at the time checked "able," but then you added, "Yes, very important." So can you maybe address those issues?
JUROR: Yes. I think I can do the analysis because it's not no different -- it's not any different, but it's an analysis that, you know, I can set everything aside and take a set of facts that we're given, or at least we have to interpret ourselves, and the law that you will give us. I think I can apply that, you know, outside of biases I might have. If that's what you're asking, I can actually -- I think I can do that. I mean, that's the short of it.
THE COURT: You never practiced criminal law, I take it?
JUROR: No.
THE COURT: But I'm sure you had courses, at least a course in it, in college -- in law school, I mean. I'm sure you know that the burden on -- placed on the government in any criminal case is to prove a defendant's guilt beyond a reasonable doubt by the evidence at trial. Would you -- if you were a juror in this case, in assessing the evidence as to one of the charges, for example, if you found that the government's evidence had not convinced you beyond a reasonable doubt, would you be able to find the defendant not guilty of that charge?
JUROR: If they could not produce the evidence, then I would go by that. The evidence -- if they cannot produce it, then, yes, I'll apply the law you give us. And if that's the case, then, yes. But I assume everything is going to be brought forth. It's going to be a long trial. There's going to be a lot of evidence. I would have a lot more than I would have to answer some of the answers above where I was making a guess or an opinion based on limited information. So, yes.
THE COURT: We asked about -- in the next few questions, about the way people might have been affected by the events. In Question 81, you said you were aware of requests to be vigilant. First of all, where were you on the Friday -- that Friday? Were you at home or were you at work or --
JUROR: The Friday?
THE COURT: That was the shelter-in-place day.
JUROR: The day, that I recall, I was at work because I work in Winchester. It was close to -- you know, within reasonable distance of Watertown. And I remember getting a call from my mother saying, you know, Pay attention. Make sure -- I was aware of it. So that's what kind of stuck in my head as this is making national news. I'm very close to where this is all going on. And so either it was through a media report or through my mother telling me to be aware of your surroundings and what's going on.
THE COURT: Okay.
JUROR: It was quiet in the office that day, so I think a lot of people either weren't there because of what was going on or something else was causing them not to be at the office, but it was quiet that day.
THE COURT: The office is in Winchester; is that what you said?
JUROR: Yes.
THE COURT: Let me ask about Question 85. So you recognize one of the people on the witness list. That's the MBTA police officer who was injured in the events in Watertown, right?
JUROR: That's what I believe. I think, in the exhibit, it might have said Watertown officer, if I remember correctly. So I don't know which one it was, but I -- I thought it was MBTA.
MR. CHAKRAVARTY: That may be a typo. You're right. It's an MBTA police officer.
THE COURT: Tell us -- you say you met his wife.
JUROR: So he grew up in the town my wife grew up in. And they were both at a swimming pool in Winchester. And he was there with his wife, his -- I think he had one kid at least -- I'm not sure about two -- and then his folks or her folks. I didn't meet them but they were there. And my wife said hello, and she introduced me to his wife. I don't recall actually shaking his hands or being formally introduced to him. But he was sitting in a chair inches away. Our kids were playing in the pool along with some other kids. So that was the interaction.
THE COURT: When was this?
JUROR: Last summer, July probably, 2014, yeah.
THE COURT: Would that have any effect on you as a juror knowing that your wife knows his wife? Let me clarify that. Does she know him or his wife or both?
JUROR: I don't know if she knows Richard Donahue. She knows of him because, when his name was posted, you know, online -- in the media, she goes, That's a Winchester boy. I think my brothers -- because she has brothers that went to school at Winchester, and they -- I think my older -- her younger but the oldest one knows him. So we knew that at least her sibling knew him. And so she recognized the name. And so I think that's the extent. We've never done anything socially with them. I don't think we know of a phone number or anything, so --
THE COURT: I guess so the blunt question is: Would you --
JUROR: Would I --
THE COURT: Would you feel any obligation to vindicate him in some way?
JUROR: I don't feel any deep connection with him, so I don't feel an obligation to vindicate him. I think it would be easy to kind of pull that apart if there was something that -- inside of me that I don't realize that's holding me back. But I think I could peel that apart and analyze the facts.
THE COURT: Are you members of the club?
JUROR: Yes.
THE COURT: You go regularly, I presume?
JUROR: Yes.
THE COURT: Regularly enough anyway?
JUROR: Yeah. My kids go there all the time.
THE COURT: Sure. Do you know whether the Donahues are, or were they guests of somebody?
JUROR: I think their parents may be members. I don't -- I'm not sure. That's the only time I've seen them there, from my knowledge, but I think their parents may be.
THE COURT: Okay.
JUROR: Either his parents or her parents. I'm not sure which one.
THE COURT: Let's turn to Page 23. Beginning at Question 88, we asked a series of questions about the -- your attitudes towards the death penalty. Question 88 is a question whether you have any general views, and if so, what are they? You say you have no deep views, but you recognize the question requires some methodical and clean process. You say that the process can be, I guess, excessively lengthy if I understand what you're saying. Anything you want to change or add about that?
JUROR: You could probably write a lot more about this, but I was just -- again, I understand we need this process. We need to follow it. It's the law. Let's follow the law. But I also have a cynical side where I realize it's a lot of -- I wouldn't call anything -- I shouldn't call it waste, but it's a lot of time spent for something that, you know, if it doesn't happen, then it almost seems like, jeez, we spent all this time going through this process. We should have not gone for the death penalty type of -- or I guess what I'm trying to say is I realize that you need to go through this process, and so let's go through the process. But in that, it's going to be a lot of time. And many people, nonlawyers, people I work with, people, friends, you know, can joke and tease about how it's a waste of money. So you kind of feel that side, too, at times. So I don't know if it's a perfect answer there.
THE COURT: Look at 91 on the next page and what you wrote there.
JUROR: That's kind of what I was trying to say to some extent. I've never really been involved with any study of the death penalty, so I don't know that much about it to be honest. So I know that it's -- it's different depending on the different -- you know, the different states that have death penalty. I know we're in a federal court here. But I don't know that much about it, but I know that -- when you have a casual conversation, you often discuss -- things like this will pop up. What do you think about the death penalty?
So I think that -- I acknowledge that the time that is spent to do it, to actually go through with it, is quite significant, and it often seems like it's a waste. I'm also a person that believes that, if you have a law, you have to follow the law. And if you want to change that, you can go about changing the law, which we all know that process.
THE COURT: Okay. In 89, on Page 23, we asked you to put yourself on a numerical scale. You circled 5 and 6, which is sort of the middle.
JUROR: I've never really had any deep thought about it. If everything was perfectly decided and you never had anything decided incorrectly or, you know, the truth -- justice was always properly carried out, then I think there's times, yes, it's deserved. But it's the cost/benefit analysis. I think I mention somewhere in here at some point it seems like it may be a great cost.
THE COURT: But we're in the process.
JUROR: We're in the process, yeah.
THE COURT: Observation influence your decision-making, the fact that you have those cost/benefit views?
JUROR: I think it's pretty clear I can do the analysis and that's what matters. Ultimately, that's what governs the way I look at deciding these issues, is what is the law. Let's apply the law. I'm not beyond what the law is, so I'm -- there's the other route if you want to change the law so --
THE COURT: Look at Question 90 on Page 24. Rather than asking you to circle numbers, here we asked you to look at a number of statements and see if you found one that you thought represented your view. You selected (d). If you want to take a minute and review all the others to see if you'd make any different choice today.
JUROR: It's in the middle, which is kind of how I've been waffling back and forth the last ten minutes here. I don't have any deep-rooted belief either way, and I think that comes back to, you know, let's apply kind of the guidelines, if you want to call it, the law that you're required to apply.
THE COURT: You heard -- this morning I described in brief terms the so-called penalty phase where there would be proposed for your consideration aggravating factors and mitigating factors. And the jurors are asked to decide what of those had been established by the evidence and then to weigh them against each other and so on and see if the aggravating factors outweighed other considerations and, therefore, suggested the death penalty is an appropriate punishment; or, on the other hand, did not and the mitigating factors or just the balance itself was insufficient to make this the special case that calls for the death penalty. Would you be able to, after evaluating that, be prepared to decide in either direction?
JUROR: Yeah. And I assume you would provide the legal framework for us to work within, and we would apply the facts. So, yes, I mean, to me it's just another form of a legal question in law school. It's apply what's in front of you.
THE COURT: What I'm getting at is you never have to make any particular decision. It's your own decision to make based on your own assessment of the evidence. But the question I'm really asking is: Are you open to making a decision in either direction?
JUROR: Yeah. You have -- yes. And if truly things are favoring one side or the other, then I believe the evidence will be there, and it will prove out that way.
THE COURT: All right.
MR. CHAKRAVARTY: Just briefly. Good afternoon. My name is Aloke Chakravarty. I'm one of the prosecutors. Just a couple of questions.
JUROR: Okay.
MR. CHAKRAVARTY: Hopefully, a couple of questions. You know how lawyers are.
On the MBTA police officer issue, there's going to be testimony about what happened to him. There's likely to be testimony about what happened to him, perhaps even testimony from himself. Would your interaction with his family alter your assessment of that evidence? And would you be able to be fair and impartial in reviewing it?
JUROR: I could be fair and impartial.
MR. CHAKRAVARTY: Another fact that's likely to be exposed during the trial is that a child was killed during the trial. I notice that you have children yourself. Does that -- the fact that a child was killed, which is obviously an emotional thing for anybody, would that impair your ability to be fair and impartial with regards to reviewing the evidence and doing, as you said, following the law to make a decision?
JUROR: No. I think I can apply the analysis necessary. You have to strip away any potential biases you may have, and I think I can do that.
MR. CHAKRAVARTY: Then, finally, one question -- and if you want to answer this privately, be my guest, but I wasn't sure what you meant. Page 8, Question 19, I was hoping you could explain. We could perhaps go to sidebar.
THE COURT: Yeah. I think we should do that. We'll have a short sidebar.
(SIDEBAR CONFERENCE AS FOLLOWS:
THE COURT: Okay.
JUROR: So my --
MR. CHAKRAVARTY: I didn't understand what it meant.
[REDACTED]
MR. BRUCK: We have questions when the sidebar is over.
THE COURT: Right, of course. Sorry.
. . . END OF SIDEBAR CONFERENCE.)
MR. BRUCK: Good afternoon. My name is David Bruck, and I'm one of Jahar Tsarnaev's attorneys. And I just have a few questions, I don't think terribly many. About Rick Donahue and his family, do you know what his involvement in -- why he's a witness in the case or what his involvement in this whole story is?
JUROR: He was badly injured, is what I recall. And I believe it was from media. It was a shootout -- I believe it was a shootout, the night shootout, if I recall correctly.
MR. BRUCK: Anything else that comes to mind about the story?
JUROR: And I believe he was shot by friendly -- by another police officer, I believe.
MR. BRUCK: You remember -- did you read any of the coverage about his medical treatment and the whole --
JUROR: I didn't follow his medical treatment other than I would hear from my wife or from someone in the family, like, yeah, he's really in difficult shape and, you know even at one point I thought -- I heard he wasn't going to survive. They were really on edge. But -- it wasn't from my own reading of the media or anything. It was --
MR. BRUCK: Did your wife talk at all -- I'm recalling and just wonder if it rings a bell with you the role of a very young female doctor who is credited with saving his life, does any of that come back to you?
JUROR: Actually, no.
THE COURT: I didn't hear the answer.
MR. BRUCK: He doesn't recall.
JUROR: No, I don't recall that, no.
MR. BRUCK: I take it there's some possibility you would encounter -- you and your family would encounter his family in the future?
JUROR: Yes. If they go to the -- especially if they go to the swim club or we happen to take our kids swimming.
MR. BRUCK: Does the Donahue family live in Winchester as far as you know?
JUROR: Actually, I don't know that.
MR. CHAKRAVARTY: Objection, your Honor, as to where they live.
THE COURT: No. Go ahead. I think that's all right.
JUROR: I do not know.
MR. BRUCK: I want to ask you a few questions about the death penalty if that's okay. Were you living in Illinois at the time of the great debate back and forth about the death penalty in Illinois?
JUROR: What years are you speaking of?
MR. BRUCK: I guess it was late '90s and early --
JUROR: I was in Illinois until 2006 -- '08.
MR. BRUCK: Okay.
JUROR: So yes, yes.
MR. BRUCK: Do you remember when the governor had --
JUROR: There's a moratorium, I believe.
MR. BRUCK: -- a mass commutation?
JUROR: I didn't follow it that closely, but I remember -- is it Governor Thompson or is it Edgar? I'm sorry. I don't recall.
MR. BRUCK: Governor Ryan maybe?
JUROR: Was it Governor Ryan?
MR. BRUCK: Whatever.
JUROR: I don't recall. I don't recall.
MR. BRUCK: Did you have any feelings one way or the other about the debate in Illinois about the death penalty or the governor's actions?
JUROR: Nothing too deep, not to say that I don't get into deep discussion on certain things. I recall thinking I wonder if this guy is going to be recognized some day down the road as this was something he should have really -- you know, it was the right thing to do. I thought about that for a short time, but it didn't go any further than just kind of thinking while you're driving a car or something and just -- no discussion.
MR. BRUCK: Okay. I think you may have been living there when Illinois abolished the death penalty. Does that ring a bell at all?
JUROR: I don't recall when it was abolished, but I was in Chicago until 2006.
MR. BRUCK: Okay. Do you have a view about whether Illinois did the right thing or did the wrong thing?
MR. CHAKRAVARTY: Objection, your Honor.
THE COURT: No. Go ahead. He can answer that.
JUROR: I really don't have any -- a real deep view on the death penalty, unfortunately, not that I don't care, but I just really don't have a deep view to be honest.
MR. BRUCK: And as the judge told you, there are no right or wrong answers. There is a right answer to every question, but that is, how you really feel. So that's all we're interested in.
You talked about the ways in which this whole process could be a waste. I wonder whether -- if you were in a jury in a capital case, whether you would feel any tug to -- in favor of the death penalty so as not to have the whole huge effort be -- have been a waste of time?
JUROR: I don't think I'll feel the tug, but I know what you're saying. And my comment was more from a cynical side. I have many very practical friends that think they understand everything and have quick opinions on things and can summarize anything very quickly. You'll hear things like that, and sometimes you're like, Yeah, it could be a waste. But when it comes down to it, I think the process is more important. You know, the truth or the evidence will determine what -- which side prevails. So I feel like it's out there. It just needs to be presented, and we can make the decision. The cynical side that a person could acknowledge having would be that waste discussion, you know.
MR. BRUCK: Okay. You, quite a number of times, talked about you could do the analysis and sort of weigh where the facts came down. I wanted to be sure that we were clear on the process and on the way the decision ultimately gets made. The judge explained that, in the sentencing phase, you go into -- it's devoted entirely to the penalty. And there's aggravating factors presented and mitigating factors, and the jury does weigh facts and make factual findings. But did you also get from all that that in the end the decision is not a factual one. It's a discretionary one, where you could go either way depending on your sense of right or wrong, of what's fair, what's moral, what's necessary, not just what the facts are? Does that -- were you clear on that?
MR. CHAKRAVARTY: Objection to the form of the question.
THE COURT: No. Go ahead. He can answer that.
JUROR: I see where you're coming from. And because I've never been involved in that aspect, it wasn't entirely clear. But I think what I can do is, when I'm told you have -- work within this framework, I can work within that framework. And so it's not like, you know, Judge O'Toole is going to say X. Now you can do Y. He's going to tell you, I assume, you work within -- you need to determine whether this fact outweighs this fact, and then I can do that, you know, so -- is that kind of the way you're asking the question?
MR. BRUCK: He told you, in the end, you have to decide not just whether facts outweigh each other but whether the reasons for death sufficiently outweigh the reasons for life so, in your judgment, the death penalty is the correct outcome, which is very discretionary. You see what I mean? It's not just facts or even which fact outweighs which fact. It's which verdict is the right thing to do.
JUROR: I assume, before any of that decision-making would happen, I would -- the jurors would be given all the information on how we're supposed to analyze or weigh or whatever you want to call it, and then I would evaluate that and move forward. I haven't seen all that, so I don't know what that's going to be. So I don't know if you're asking me to know a little bit more about that process, which I do not know anything about.
MR. BRUCK: Right.
JUROR: So it's hard to -- it's hard to kind of answer that because I assume I'm going to be given some direction. Does that make sense?
MR. BRUCK: Well, I don't want to belabor this, but I've been hearing from your answers that you might expect more direction than the jury actually gets, and I want to be clear. In the end, the jury is told, Do what's right.
JUROR: If the judge would happen to say, Do what's right, and it was that vague, then I would have to come up with my own decision on what doing -- on what doing right is. So I don't think it's going to be that vague, though, but I don't know.
MR. BRUCK: Okay.
JUROR: So -- it's --
MR. BRUCK: Okay. I think that's all, but let me check for a second with my --
(Discussion held off the record.)
MR. BRUCK: That is all. Thank you very much. Appreciate it.
THE COURT: Thank you. Thank you very much. Appreciate it.
JUROR: Thank you.
COURT CLERK: Juror No. 547.
COURT CLERK: Juror 547.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
[REDACTED]
MR. BRUCK: The parties are satisfied, your Honor.
THE COURT: I want to explore some other things, I guess without the sidebar though.
. . . END OF SIDEBAR CONFERENCE.)
THE COURT: Let me just ask you, in Question 10 we set out the schedule in the case and so on. You know, recognizing that it's somewhat a burden for anybody to do, whether it would be especially difficult for you.
JUROR: It would be.
THE COURT: You wrote that you were concerned about the kids.
JUROR: Yes.
THE COURT: Tell us about that.
JUROR: I have no family out here, and my husband's mother is 73, and my whole family is from New York. My husband works construction during the day, and he works 3 to 11 at night so --
THE COURT: You're it?
JUROR: I'm it.
THE COURT: Thank you.
JUROR: Sorry. Thank you.
COURT CLERK: Juror No. 548.
COURT CLERK: Juror 548.
COURT CLERK: Ma'am, over here, please, if you would. Have a seat.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: Have you been able to avoid discussion of the substance of the case since you were last here?
JUROR: Yes.
THE COURT: And also, as much as you can, stay away from news stories about the case?
JUROR: Yes.
THE COURT: You have to answer because the court reporter is taking things down.
So you work at a law firm.
JUROR: Yes.
THE COURT: As an assistant legal assistant?
JUROR: Correct.
THE COURT: You say to a partner and two associates?
JUROR: Correct.
THE COURT: What kind of law do those lawyers practice?
JUROR: We mostly do employment and contracts, litigation but not criminal litigation.
THE COURT: That's what I was getting at. Particularly these lawyers that you work for, they don't do criminal?
JUROR: Right, correct.
THE COURT: We've got a little family information from you about family members. You have a sister who's a registered nurse in the area?
JUROR: Yes.
THE COURT: Is she affiliated with a hospital?
JUROR: She used to be Brigham and Women's, but she's somewhere in Chestnut Hill. I'm not sure. It's a private place where she works now.
THE COURT: When was she with Brigham and Women's, do you remember, what years?
JUROR: Probably up to last year.
THE COURT: Last year meaning 2014?
JUROR: Yes.
THE COURT: Was she -- so she was there in 2013?
JUROR: Yes.
THE COURT: So do you know what kind of work she did there, what department she was in?
JUROR: At one point she was in the emergency room, but I'm not sure.
THE COURT: As you may know, a number of the victims of the Marathon bombing were taken to the Brigham and Women's emergency room. Do you know whether she worked on any of those --
JUROR: No. She happened to be away during that period. She used to volunteer at the hospital tent at the finish line, but she was away. She wasn't there.
THE COURT: Was she away the whole week?
JUROR: Yes.
THE COURT: You have a sister who worked for the Department of Justice.
JUROR: Yes, correct.
THE COURT: Bureau of Prisons.
JUROR: Yes.
THE COURT: Does or did?
JUROR: She did. She used to work for the Sheridan Prison in Oregon, the federal prison.
THE COURT: Okay.
JUROR: Then she became assistant warden there. She was an attorney and then she was assistant warden, but she's no longer.
THE COURT: Is she -- has she retired, or is she working at something else?
JUROR: She's in her city government.
THE COURT: In Oregon?
JUROR: I think she was a commissioner. In Oregon, yup.
THE COURT: You told us that you had some prior jury service in Middlesex in a criminal case.
JUROR: Yes, quite a long time ago.
THE COURT: When was that?
JUROR: It was probably early 1980.
THE COURT: Oh, okay.
JUROR: '80s.
THE COURT: That's right. I see you say it was a while ago.
So let me ask you to turn to Page 20 if you would. If it's convenient for you to take the clip off, you might handle the paper -- it might be a little easier for you.
JUROR: Okay.
THE COURT: Question 77, at the top, we asked whether, based on things you'd seen or heard in the media or in other -- from other sources, you'd formed certain opinions in the case.
JUROR: Correct.
THE COURT: You answered that you had formed an opinion that the defendant was guilty.
JUROR: Correct.
THE COURT: And that he should receive the death penalty, (c).
JUROR: Yes, yes.
THE COURT: Okay. We then asked, "If you answered yes to any of the questions, would you be able or unable to set aside your opinion and base your decision about guilt and punishment solely on the evidence that would be presented in court?" And you checked "unable."
JUROR: Maybe -- I don't know if I understood the question.
THE COURT: Okay. Well, let's -- how about this: Let's forget what you said then and ask you the question now. You said that you have an opinion that he's guilty.
JUROR: Uh-huh.
THE COURT: Let's just focus on that one first, and we'll come to the other later. Notwithstanding the fact you have that opinion -- and it's understandable people have ideas from the amount of coverage that the events got -- would you be able or unable to set aside that opinion and base your decision about guilt based solely on the evidence presented to you in the court in the course of the trial?
JUROR: I see.
THE COURT: Would you be able to do that or unable to do that?
JUROR: I don't think I would be able to do that.
THE COURT: Okay. Can you tell us a little bit why you say that?
JUROR: If I have the opinion that he's guilty already, I don't -- I don't know if I could look at the evidence that they present and not still think that. I'm not sure.
THE COURT: Well, you understand in, general, that in our criminal justice system a person who's accused of a crime is presumed to be not guilty, or innocent, unless the government proves the person is guilty by the evidence at trial.
JUROR: Correct.
THE COURT: And the government's burden is to prove a person's guilt of the crime the person is charged with beyond a reasonable doubt based on that evidence.
JUROR: Correct.
THE COURT: What we ask jurors to do is, notwithstanding any other ideas they might have, to focus on the trial evidence and make their judgments about guilt or innocence based on that body of trial evidence. Sometimes jurors have ideas that are -- from other sources that are so strongly held that they can't put them aside and do that. I guess that's what we're asking you, where you think you fall in that --
JUROR: I don't think I could.
THE COURT: All right. Okay. Thank you.
4:15?
MS. CLARKE: That would be great.
MR. CHAKRAVARTY: Thank you.
(Recess taken at 3:47 p.m.)
(The Court entered the courtroom at 4:23 p.m.)