11.Challenges for Cause — Arguments and Rulings
172 linesTHE COURT: Okay. I would imagine you've agreed on some.
MR. WEINREB: We have, your Honor.
THE COURT: Can we just run through those?
MR. WEINREB: So Number 4.
MS. CLARKE: Number 9.
THE COURT: I'm sorry?
MR. WEINREB: Number 9. Number 14.
THE COURT: We already --
MR. WEINREB: And Number 19.
THE COURT: Which one?
MR. WEINREB: 19.
MS. CLARKE: 15 was already off.
THE COURT: Let's just include for this purpose the list of ones that we already have -- was No. 20 one of those?
MR. WEINREB: Yes, your Honor.
MS. CLARKE: Number 22 was one of those. 26 was one of those.
THE COURT: Right.
MS. CLARKE: 30 was one of those. 31 was one of those.
THE COURT: Any others? Is that the list, I think?
MR. WEINREB: That's it.
THE COURT: So that's nine. Okay. So the first then as to which there's no agreement would be No. 6. Is there any --
MS. CLARKE: Number 6, we move to strike for cause. This was the juror, your Honor, that -- whose wife treated victims at the hospital. He said -- when asked, Could you set that aside -- she had a tough time. It was hard on her. When asked whether you could set that aside, he said, Well, possibly, but it's tough. And my wife had a tough time. Your question was: Could you be fair? And he said, It's tough. We don't see how he stays as a juror.
He also had a coworker at John Hancock that was there that day. He works for John Hancock. So he has connections, close connections, to the Marathon events.
MR. WEINREB: So the government objects. The working at John Hancock, he said, would not affect him. And he said his coworker, although was at the finish line, they had had no detail talk about it. The only issue would be that his wife was a nurse at MGH and treated some of the victims, but that is once removed from him. He was not someone who dealt with the victims or treated them. And although he did say that it hit her hard, he did not say he could not be fair and impartial. And then he followed up -- when the Court followed up on it, he said, The facts are the facts, indicating that in the end it would be the evidence that would persuade him and not his wife's experience.
We do, however, think that he should be brought back for a different purpose, which is that he was questioned before we had our colloquy about how to phrase the Morgan question, and we would like him brought back just for the purpose of just asking him that question.
THE COURT: Okay. I think I'm going to strike him at the defense request. It's the combination of his wife's experience and his affiliation with John Hancock, who is not just any business in the Back Bay. It's the sponsor of the Marathon. I think, as much as he may be sincere in his intentions, going home every night, particularly when some of the victim evidence is produced, I think will be too much of a -- potentially too much of an influence on him, and I don't think we should take that risk. So I'll excuse him for that reason. It won't be necessary to bring him back.
MR. BRUCK: The next is 7,
[REDACTED]
THE COURT: On the use of the name, I don't know that it matters -- is anybody going to get daily copy other than you lawyers? When it's broadcast -- that's why I don't want the names used because it's being broadcast to the public. If you want to stay with the numbers, that's fine here, too.
Let me just say that -- keep in mind that there may be some other identifying -- piece of information that will easily identify someone. For example, I thought of and rejected the idea of asking the Tedeschi's supervisor where his store was because it would be easy for somebody to go to Braintree and find the store if that's where it is. I don't know where it is. Keep in mind that there are other facts that could identify someone for somebody who was interested in tracking them down. So -- all right. 7.
MR. BRUCK: Number 7 seems like a pretty clear hardship combined with he and his wife run a small deli. She is five-and-a-half-months pregnant. That leaves three and a half months if she goes full term. And they're running this business together. So you've got two problems. You've got the economic problem of how she's going to do this by herself, and he's going to be worried about it. And then she's going to have a baby during the period in which we are projecting this case could still be lasting. I can't imagine how the Court or anybody is going to want to deal with that problem. And so it just seems pretty clear to us that that is a real hardship, on top of which we have the problem with his rap sheet, and he would need to come back. But we don't think he needs to come back because we think it's clear that he really isn't -- it isn't fair to ask him to serve, not in the next three and a half months.
MR. WEINREB: Your Honor, we would prefer to bring him back for several reasons. With respect to the hardship, he may, in fact, have a genuine hardship claim, but he wrote on his questionnaire that he didn't. Then when he came in, he did explain about his job as a cook. But my recollection is that, after saying that his fiance was five-and-a-half-months pregnant, he said that the hours he would be gone would be -- typical for her would be five hours a day. It was a quite confusing answer that I think could -- we could benefit from asking him a little more detail about it.
He also said, I'm not one to form an opinion until I hear the facts for myself, which recommends him as a juror. And if he's not got a disqualifying hardship, then there's no other basis for excusing him. And we think he's entitled to his chance to serve and if he's willing --
THE COURT: He didn't bring it up at the beginning, but I do think it is a genuine hardship. He seems to me to be in the self-employed category. And regardless of what attention he may have to devote to his wife and new child or child to be, I think his not being able to attend the business is a bigger hardship. I tend to -- I think everybody does -- tend him -- I put him in the same category, I guess, as the commission fellow who's working as the damage estimator. I think they're pretty similar. So I think I will excuse him.
You know, it is a little unexplained why he didn't say it in the first place. Maybe it was optimism. I don't know. But I think it's -- I think -- another way of saying it, I think we're going to have trouble with him later if we try to force the issue on him.
9 you've agreed on. 10.
MR. BRUCK: Number 10 is the Bidlack -- okay. Go ahead.
MR. WEINREB: Your Honor, the government moves to strike No. 10. Number 10 made clear that he is categorically opposed to the death penalty except under one circumstance that will never come to pass, which is that the walls of all the prisons fall down. He said that he would be denied tenure if he voted for the death penalty. And he said that it would be a hardship for his students because he's irreplaceable.
If he is not disqualified under Witherspoon as being unable to impose the death penalty, then he is surely substantially impaired in his ability to do so.
MR. BRUCK: Number 10, we feel that the government's case may very well satisfy his criteria, that the government proposes -- forecasts evidence about -- that the prison system could not adequately protect innocent life from this defendant in several ways, one having to do with terrorism generally and the other having to do with actual conditions in prison. I think this is a juror who has a very high standard for what it would take to impose the death penalty, but that is not disqualifying under Witherspoon and Witt. And so we don't think that he should be excused on that ground.
MR. WEINREB: Your Honor, if I may respond just to clarify, the government has not alleged as an aggravating factor in this case that the defendant presents a risk of future dangerousness. We did, however, notice to the defendant, if the defense asserts as a mitigating factor that the defendant poses no risk of future harm, then the government would seek to offer rebuttal evidence. So it remains unclear what the jury will be hearing if there is a penalty phase on that subject.
THE COURT: I think he should be excused. His views are, I think, very seriously and -- very seriously considered in an academically sophisticated way. But I think he is -- as a practical matter, the condition that he sets for being able to vote for it is so remote and if not impossible that I think it may satisfy his philosophical understanding of the appropriateness of the death penalty. But as a practical matter, I think it's a signal that he would be unable to conscientiously consider it and at least be substantially impaired in that respect.
11.
MS. CLARKE: Number 11 is a defense motion to strike. This was the man that I would refer to as grumpy, but you could call him -- that I would refer to as grumpy. You could call him angry. He has a hardship that's pretty substantial. He would stand to lose $20,000 by not being able to be at work. I think the Court asked him, Can you do this off hours? And he said, No, I need to be available during the day. Is that the right guy? Yes.
And on top of his hardship, which seemed fairly substantial, he appears to be, to us, to be substantially impaired with regard to the penalty decisions. He was fairly straightforward and harsh in his answers, Justice is justice. A small percentage of the population needs to be put down. Life is only equal to 20 years. We break the rules, we can't -- you can't be allowed to live with the rest of us. He was -- appeared substantially impaired in the death penalty, and that combination seems to us to remove him.
MR. WEINREB: We object, your Honor. He said that he was a software engineer contractor who worked at home and, therefore, could do his job at times other than 9 to 5. Although he said he needed to be available during the day, he said he could be available remotely via email or phone, and he will have breaks during the day and a lunch hour, plus times before and after the trial -- the trial will end at 4 -- when he can be in touch with the people who may need to get in touch with him. In that sense, he's not unlike many other people. Presumably during the day, in his normal days, there are times when he has other things that he needs to do, and he stays in touch via these ways that he mentioned.
The fact that he will lose money if he serves on the jury is not in itself a hardship unless he says that it is going to be -- he said he would take a financial hit, and, of course, that's a hardship for anybody. But to be a hardship in the legal sense, I think it has to be more than the kind of sacrifice that everyone makes when they serve on a jury.
With respect to being substantially impaired, he clearly was and is -- he is a person who firmly supports the death penalty and is unafraid and unhesitant to say so. But that's different from saying that he could not meaningfully consider mitigating factors and impose a sentence of life without parole if the facts justified them. When he was asked those questions pointblank, he unhesitatingly said that he could. And that is not evidence of substantial impairment. It's evidence of the opposite.
THE COURT: Well, again, I think I'm going to excuse him as well. I do think he's probably in the self-employed category. The fact that somebody, particularly software people, work remotely doesn't necessarily mean they work out of normal work hours because of -- not because of their own work habits but because of the people they're dealing with. So I think he's that.
I also have to say that some of the way he phrased things in the questionnaire and his demeanor here today suggested a kind of oppositional attitude that I think would be problematic in unknown ways. And I think that we're better off not having that issue.
Number 14, we've already dealt with.
Next would be No. 15. We've already dealt, I think, with her as well, right?
COURT CLERK: Yup.
MR. WEINREB: Yes.
THE COURT: She didn't get mentioned on the list there.
Number 16.
MR. WEINREB: Your Honor, the government moves to strike No. 16. We have a serious concern about his candor, particularly with respect to his work situation. He wrote on his questionnaire that his employment is that he's a limo driver. But when he came into court, he clarified that he is unemployed -- he clarified that because he suffered a work injury, he's on disability and, therefore, considers himself unemployed. And so his limo driving, which pays him money, he described as an avocation, something that he just does -- how did he put it? Almost like a hobby. And that seems to be an interesting spin on the fact, if not an outright misrepresentation of it.
[REDACTED]I think we have a different view of the limo driver question. He was pretty upfront with that, too. If you look at Question 26, he says, "Limo driver." And then 27, "Unemployed due to auto accident," ending in 2014 -- 2013 to 2014.
So his credibility didn't seem to us to be at issue. We did not see anything in his answers on the questionnaire or the questioning the Court did that would give rise to a cause challenge.
THE COURT: Well, I guess -- I think it's a bit of a close question. I guess I am a little troubled, like the government, with his candor. The question is pretty easy to read. And I think, when he started to read it, he realized it
[REDACTED]And there is the question of his candor with respect to his driving and whether he's skating close to the edge with his working when maybe he shouldn't be kind of thing. So it's -- it's a close question, but I think I'll excuse him.
19 is already done. 20 is done. 21. No?
MR. WEINREB: No.
THE COURT: He wins the prize. 22 is excused. 23.
MR. WEINREB: Your Honor, the government moves to strike 23. She unequivocally stated her opposition to the death penalty and said she could not impose it in any case. And, in addition, she has a genuine hardship.
THE COURT: For the defense?
MR. BRUCK: Her opposition to the death penalty, I thought, the Court really cleared up. At one point she said, Well, if it was my children, and you followed up with what about other children, at which point she said it would be hard, which is where she started.
THE COURT: I don't think that's this -- that was another juror. This is Juror 23.
MR. BRUCK: It is.
THE COURT: I think the person who answered that way was Juror 27.
MR. BRUCK: No. They both discussed children.
MS. CLARKE: 23, I think, was the one that was not asked the follow-up question.
MR. WEINREB: Juror 23 said, I could not say yes, he could get the death penalty. I myself personally would never, ever be able to say that with anybody. I'm against the death penalty. It would have to be as personal as my child.
THE COURT: Okay. She mentioned the child.
MS. CLARKE: Maybe we should look at the transcript?
MR. WEINREB: I'm confident that the one who said --
MS. CLARKE: The one that corrected was 27, not 23?
MR. WEINREB: Correct.
THE COURT: I actually thought on the basis -- when I reviewed her questionnaire, I thought she was in the zone, and I was struck by her retreat from that today. So I think I'm in agreement with the government on this. She became more adamant about her opposition than I expected her to be from the way she had answered the questions on the questionnaire.
MR. BRUCK: Just so the record is clear as to our position -- it took me awhile to find my notes. But when you asked, How about somebody else's child? she said, I wouldn't want to do it. That's where it was left. And that is, we think, not disqualifying.
THE COURT: That is consistent with her answer to Question 88 where she said, I couldn't emotionally handle having that judgment be in part by me. But I saw that when I looked at the questionnaire, but then I also saw that she was in the middle of the range and that she -- on both 89 and 90, and I thought maybe that put her back in the zone. But I think she reaffirmed her inability to do it on Question 88.
It's not brought up, I guess, but she also has the hardship issue of possibly losing her health benefits, which is a significant hardship. I don't understand that, I have to say. She said she talked with the employer about it. She has at least a major controversy on her hands even if three years from now she could win a lawsuit. So I think that's a separate reason. She does -- as I recall, her husband was a contractor, probably doesn't carry insurance because it's expensive for them, and she's getting it through her employer. I think that's something that shouldn't be risked. So I'll excuse No. 23.
MS. CLARKE: 26, we had agreed to.
THE COURT: 27.
MS. CLARKE: 27, no motion.
MR. WEINREB: Your Honor, the government moves to strike No. 27 primarily on the grounds that she is substantially impaired in her ability to impose the death penalty. She is against the death penalty and said on her questionnaire that she probably -- when asked if she could impose it, she said probably not.
When the Court probed and sought to try to uncover circumstances in which she could impose it, the only example she could come up with was only if her own children had been victims. And I think it's quite telling that, in saying that, it was obvious, looking at her, that she almost began to cry. She became very emotional. And it suggests that, when applying her reason, she finds she could not impose the death penalty. It's equivalent to saying, The only way I could impose it is if I did it on an emotional basis, as an emotional basis and not one based on consideration of aggravating and mitigating factors.
Also, I think it's quite significant that she does post-conviction criminal cases. That's her whole career, is advocating on behalf of criminal defendants and looking for ways to spare them from whatever penalty they may have received. Her husband does the same thing in addition to other things. And it is -- given those combination of factors, it is, I think, clear -- given those combination of factors and based on her demeanor, the way that she answered the questions in court, I think it's clear that she -- even if she does not fall into the category of somebody who could not under any circumstances impose a death penalty that she falls into the definition of substantial impairment that is discussed in the cases, mainly someone who is not categorically opposed to the death penalty but states that they could only impose it under very special or unusual circumstances such as -- I could name all the examples that the Supreme Court has given, but they're cited in papers we previously submitted.
MR. BRUCK: We thought, by the end of your examination, that it was clear that she is qualified. She is somebody that does not support the death penalty, and she regards it with a tremendous seriousness. That is not disqualifying in any way, shape or form. Because she's a lawyer, she knows how real this is, and it's not abstract. But that's not disqualifying either and neither is the fact that she advocates for individuals who have been convicted.
We think that she is clearly -- the words she used is that she is open to persuasion. That is exactly the frame of mind that a juror should have. And we think that she is qualified.
THE COURT: She does -- putting aside the death penalty issue, her career is something that I'm wondering about, and that is, I would think that perhaps a plausible cause for excuse might be cited by the defense if there was an assistant district attorney who prosecuted murder cases who was on the list. I mean, she does have a professional commitment to one side of the criminal prosecution. Nothing at all wrong with that. But it might have a kind of inherent bias that's hard to detect particularly with someone who is composed as she is and familiar with the standards that apply. So I think that's what troubles me more than the death penalty question. I think it's her career orientation that would be skewing, I think, even if she thought she was not. So I think it's a concern. It's kind of having a partisan for one side of the criminal case generally conceived. So I think, for that reason, I'll strike her.
28.
MS. CLARKE: One moment. If you give us -- didn't we agree on 28?
MR. WEINREB: Yes, we did.
THE COURT: To strike 28?
MR. WEINREB: Yeah.
THE COURT: That's it, I think.
MR. WEINREB: No.
THE COURT: I'm sorry. 32.
MR. BRUCK: Yes. The defense has a motion to disqualify [REDACTED]. If I can just get to my notes. First, there was a rather confusing health picture. He is going back to work after what sounded like unsuccessful treatment for or not entirely successful attempt to recover from insomnia, which is a right serious health problem for a juror in a three- or four-month trial. He -- I have to say he did seem exceptionally eager to serve. This is a juror who we would have liked to have been asked that question flat out, which is one of our requested voir dire questions: Do you want to be on this jury? We have expressed all along in this process our concern about people who really want to be on this jury for reasons having to do with an agenda. I'm not accusing him of that. The point is that the -- one of the goals of this process, which we think may have not succeeded in this instance, is to identify those people when they're there.
We also think that he is effectively, in all likelihood, a juror who will not consider mitigation. His -- and will automatically impose the death penalty. His responses were very unilluminating, and we don't think that the Morgan inquiry was sufficient to determine whether or not, in a case of intentional murder, where there was no self-defense and no insanity and no heat of passion and all the sorts of irrelevant factors that jurors sometimes think are -- would be sentencing considerations at the penalty phase -- we know they're not but the jurors don't know that. And it very well, given the questions that were asked and weren't asked, if found guilty, I could support the death penalty, is his questionnaire answer.
We really think that this is a juror who would not consider mitigation, would not meaningfully consider imposing a life sentence. And at a minimum, we can't say from his answers whether I'm right or wrong about that. We just -- his answer was basically, I would go with your instructions. Well, your instructions aren't going to tell him what to do, but he doesn't know that. And that's why we just don't think he's qualified. He's too far on the death side of the scale, and there's too much mystery about his actual views still after voir dire.
MR. WEINREB: Your Honor, we object. What Mr. Bruck has cited is pure speculation, speculation about his potential impairment from insomnia, which he claims he no longer had. He said he had gotten better and is ready to go back to work. If he's not selected for this jury, that's what he's going to do. He gave no indication whatsoever that he was unable to consider a life sentence or substantially impaired in any way, just pure seemingly hunch on Mr. Bruck's part.
He seemed, in his answers to the Court, to be candid, open. He bore all the characteristics that jurors are told in trials to pay attention to when evaluating somebody's credibility. He didn't hesitate. He didn't duck any of the questions. There's nothing inconsistent about them, nothing inconsistent about what he said in court and what was on his questionnaire. He was quite firm that he had not made up his mind, that he would listen to the evidence, that that was the most important thing, were the facts in the case, and that he would decide it based on the evidence and on the instructions the Court gave him.
There's simply -- Mr. Bruck seems to be saying that those answers themselves somehow create a suspicion that he's unable or unwilling to do the very things that he's sworn under oath that he's able to. That can't be a fair inference.
THE COURT: Yeah. I would deny this strike request. I think his answers were satisfactory. I didn't detect anything in the manner of his answering that led me to think he was being insincere. You can't always tell, obviously. He seemed rather ingenuous as opposed to disingenuous. And I found his answers credible. So I would not excuse him for cause.
MS. CLARKE: Your Honor, could I take the Court back to [REDACTED]just for one moment? That's the government strike that was just granted, the lawyer. We have no basis in this record that she handles murder cases. I don't know whether that would influence one way or the other.
THE COURT: I used that as an example, perhaps illy chosen, of the opposite side just to kind of make the point. I wouldn't -- the point is a larger one of affiliation with prosecution and defense rather than specifically about the nature of the crime charged.
MS. CLARKE: I personally have a very good friend who hung a jury, 11 votes for not guilty, and this person held out for guilty and hung a -- that's criminal defense lawyer friend. So I'm not sure that either side should be tarred and feathered with what their practice is. It brings experiences, but it doesn't necessarily bring a bias towards guilt or innocence or a penalty or not. I would get struck because of my death penalty views, but she should not.
THE COURT: Okay. I think it will stand.
We have -- Jim McAlear is here to perhaps explain this a little bit. We had a couple of, I guess, calls from two jurors who were scheduled to be here this afternoon and then got told to come tomorrow morning. They both have schedule issues because they thought they would be free tomorrow morning. They're both at 11 a.m. The first is -- I presume you've reviewed the questionnaires. The first is a radiologist from Children's Hospital. He has surgery on a patient tomorrow at 11.
MS. CLARKE: Which number is that?
THE COURT: He's 52. I believe -- did you talk to him directly or --
JAMES MCALEAR: One of my staff members said that he's completely willing to come if he could be first on the list. It would be, like, 9 a.m.
MR. WEINREB: We have no objection.
THE COURT: We get to him after -- assuming we can start at 9:00, which we were delayed for a couple of reasons today. But we'd get to him around 9:20 or so. If he's able to go back to the hospital and participate, if there's no objection, we'll take him first.
The other is No. 48, who has a -- as far as the note is concerned, an unspecified doctor's appointment. He is the patient.
COURT CLERK: He claims -- I don't have a copy of the questionnaires anymore, but he claims he wrote it on his questionnaire that he had health issues, and this is one of the things that --
THE COURT: We could simply take him off the list for tomorrow, and at some point, like the woman we talked about the other day -- No. 15, was it, I think -- alter -- just plug them in at some point where we can make that arrangement with some other panel.
MR. WEINREB: We have no objection.
THE COURT: They would be out of sequence at some point.
MS. CLARKE: If you want to give us a couple minutes to look at the questionnaire, maybe we could talk about that.
MR. WEINREB: Based on health problems, maybe.
THE COURT: I didn't bring mine with me. If you have yours there -- if you're doing that, look at both of them.
MS. CLARKE: Both? Not the doctor?
THE COURT: Yes. Look at the doctor.
MR. CHAKRAVARTY: Your Honor, as long as Mr. McAlear is here, if the parties continue to discuss potential agreed-upon strikes, when is the latest that we can make that information known to the Court such that those jurors -- prospective jurors would not have to come in, or would your Honor just prefer they come in and we do what we did today?
THE COURT: They can get called off the night before, can't they?
JAMES MCALEAR: Yes.
THE COURT: If it's a business day?
JAMES MCALEAR: Yes.
THE COURT: You answer the question.
JAMES MCALEAR: With records to --
THE COURT: Maybe you can be more specific. What's -- what would be the objective?
MR. CHAKRAVARTY: When the parties have more time and tonight when we go back through the questionnaires, for example, for tomorrow or maybe for Tuesday, there may be some more that we can agree upon, having some visibility into how the process is going from today's experience, such that we might be able to add additional ones even as early as tomorrow but, more realistically, for two days hence.
THE COURT: Let's talk about Tuesday. We'll see again tomorrow how things go. I think -- you know, this was the first panel that we did. There was some start-up -- getting used to the process and so on. I expect the pace will more or less pick up. And if we get started at 9, my hope is that our experience tomorrow will confirm that we could put two panels on again on Tuesday. We'll see. But -- anyway. If we can't, we won't. But I think maybe that's a possibility if things move tomorrow.
MR. WEINREB: I guess the question is, if the jurors are scheduled for the following day, if we inform Mr. McAlear by close of business the day before?
THE COURT: So the Tuesday is a problem -- I guess we could do it anyway. Could we post it -- even though Monday is a holiday, could we post it Monday evening?
JAMES MCALEAR: Yeah.
THE COURT: There's a question of whether we want to do that.
JAMES MCALEAR: That's what I --
THE COURT: Our procedure to this point has been to be opaque about who is getting excused partly because of a literal reading of the decorum order makes them, if excused, free to talk to the press. And so I think we wanted to keep everybody unexcused, even the most obviously excusable, until we were ready to announce the jury.
MR. WEINREB: We agree with that approach.
THE COURT: So that counsels for bringing them in so people don't figure out that they've been excused.
MR. WEINREB: Very well.
MS. CLARKE: Your Honor, we'll agree on --
THE COURT: We can do the same thing, and that is, with respect to those, we can sort of abbreviate some of the inquiry. But we can conduct enough so that they will feel that they're being treated exactly the same as those as to whom there is no agreement.
MR. BRUCK: As for No. 52, we're prepared to agree to his being excused. I think the government will also agree. And under the circumstances, given that he is a surgeon with surgeries scheduled, I think we probably should make an exception.
THE COURT: We can tell him that we will reschedule him and not tell him that he's been excused, and he'll just never get rescheduled. If you want to do that with the other one too -- I don't know what the situation is with the other one.
MS. CLARKE: No, not on the other one.
THE COURT: Okay.
MS. CLARKE: At least not this week.
THE COURT: We'll plug him in someplace where we can --
MS. CLARKE: If we could. Maybe just tell him to come on Tuesday.
THE COURT: We could do that. You want to do that?
MR. WEINREB: That's fine.
THE COURT: We'll tell him to come on Tuesday.
MS. CLARKE: So what do we have tomorrow?
THE COURT: I'm sorry?
MS. CLARKE: What do we have tomorrow?
THE COURT: The next 20 that we were planning to do this afternoon.
MR. BRUCK: Nineteen now.
MS. CLARKE: Eighteen.
JAMES MCALEAR: You want me to add two?
THE COURT: No. Let's just leave it as is. We'll regroup and get the lists back on their regular track next week.
I don't know if -- we had some trouble with the transmission to the other room today. I hope that's fixed. So the media was upset about that because they couldn't see things. They're also upset that they can't be here.
MR. BRUCK: If they were here, they'd feel differently.
THE COURT: We've had both verbal and emailed complaints about that. My own view is that, where the proceedings are made available for their coverage audially and videoly (ph), that there is no First Amendment denial of access by not being physically in the room. This is the First Amendment version of the Sixth Amendment problem.
So -- and I think, where there is an interest, a legitimate administration-of-justice interest in trying to protect the jury selection process, I think an accommodation which gives them information access without physical access -- so they don't see everything. They're complaining they can't see all the participants, including the jurors, and so on and so forth.
But I -- this is my unstudied opinion that reasonable accommodations can be made to protect the process so long as the press has some ability to cover it and can report to the public generally what's going on. Press probably has a different view of that. I'd rather not get into litigation over it.
One proposal was made that they have a pool reporter in the room so there wouldn't be a crowd, but there would be an individual. So I mention that to you. Why don't you think about that overnight. We can have one or two people. It might take the issue off the table if we did something like that. You can consider what harm it would do.
MR. WEINREB: Your Honor, we actually proposed a pool reporter in our submission to the Court. However, I think at the time that we submitted that we weren't aware yet that this would be the arrangement with the tables in the middle and that there would be no opportunity to have a husher or anything going during the times when we needed to make the proceedings more private. So I don't know if there is --
THE COURT: Yeah. It's a logistical problem. We could do it with some difficulty, everybody moving around and so on. So that is a bit of an issue. So that might counsel against it, so -- we can discuss it again in the morning.
MS. CLARKE: Judge, there are two things pending to file follow-up questions for jurors -- what? 41 through 80.
THE COURT: I think --
MS. CLARKE: 81 through 120.
THE COURT: Wait a minute.
MS. CLARKE: We've only submitted through --
MR. CHAKRAVARTY: We submitted two.
THE COURT: We have, from last night, what would have been tomorrow's two panels, right?
MS. CLARKE: So could we submit on Tuesday the 81 through 120 as opposed to --
THE COURT: I don't see why not if that's okay. We won't get -- yeah, I think that's okay.
MS. CLARKE: And the other thing is we have agreed to, based on the questionnaire, on Panel C and D, due on Tuesday.
MR. WEINREB: That's correct.
MS. CLARKE: Should we still --
THE COURT: When do we exhaust Panel --
MR. WEINREB: We won't exhaust A and B --
THE COURT: For awhile.
MR. WEINREB: A and B is almost 400-plus.
THE COURT: Grossly, it was. It's 320 something, I think.
MR. WEINREB: 320. I'm trying to think --
THE COURT: What were you saying about C and D?
MS. CLARKE: Right now we're on schedule to agree to them on Tuesday by noon.
THE COURT: No. I don't think you would have to do that. We'll set a date at some point, but let's get deeper into Panel A and B.
MS. CLARKE: So you'll set a date on 81 through 120, and you'll set a date on the rest.
MR. CHAKRAVARTY: Tuesday.
MR. WEINREB: Tuesday, close of business.
MS. CLARKE: Perfect. Perfect, your Honor.
MS. CONRAD: One more thing, as far as the transcripts, we're getting daily parts on the voir dire, parts where the audio is turned off, I don't know if it was considered sealed.
THE COURT: It will be considered a sidebar.
MS. CONRAD: We can still get a transcript of that as far as the daily?
THE COURT: I believe so. It's the equivalent of a sidebar if we were in the open court setting. The parties will still have access to it.
Okay. Thank you all. See you tomorrow.
One last thing, I just see lying on the table here -- this is Juror No. 22's letter from his boss saying it would be trouble. Does anybody care what I do with it?
MS. CLARKE: We agreed to a strike on him.
THE COURT: That's what I mean.
MR. WEINREB: The government has no --
THE COURT: Dispose of it?
MS. CLARKE: Mail it back to the boss.
(Whereupon, at 4:56 p.m. the trial recessed.)