4.Individual Voir Dire — Impartiality and Capital Punishment
193 lines(In open court:)
THE COURT: Good morning. Juror No. 9.
I just want to follow up on some of the questions you've given us on the questionnaire. First of all, have you followed the instructions I gave when you were last here to avoid any discussion of the case or any exposure to the media accounts since that time?
JUROR: Yes, I did. I never saw anything on the news.
THE COURT: You haven't talked with people about it?
JUROR: No.
THE COURT: You are employed as a custodian in a court facility?
JUROR: Chelsea.
THE COURT: Chelsea District Court?
JUROR: Yeah.
THE COURT: What are you duties?
JUROR: Maintenance. I maintain buildings, clean outside, inside the buildings, change light bulbs, and snow removal.
THE COURT: You've done that for some years?
JUROR: Almost ten, February 15th, 14th.
THE COURT: You don't use social media?
JUROR: No, I don't. Like going on computers and stuff?
THE COURT: Yeah, Facebook.
JUROR: No, no Facebook.
THE COURT: Anything like that?
JUROR: No.
THE COURT: Twitter, anything like that?
JUROR: No.
THE COURT: Email? Do you email people?
JUROR: Actually, no. I have email, but I don't email anyone.
THE COURT: With respect to the internet, do you use the internet?
JUROR: Yeah, I use the internet. I use YouTube. Mostly do -- I look up TV shows.
THE COURT: I want you to look at Question 77 on Page 20.
JUROR: All right.
THE COURT: Okay. This is a question that asked a number of subquestions really about whether you have opinions about things based on your -- pertaining to this case based on your reading things or seeing things in the media or perhaps talking with other people and so on and so forth about it. You have said that you have an opinion about the defendant's guilt in the case.
JUROR: Yeah.
THE COURT: The government has the obligation to prove a defendant guilty by evidence presented at the trial and prove it beyond a reasonable doubt. While you may have some information about the matter, it will be necessary for you to consider the evidence at trial and decide whether, on that evidence, the defendant is guilty or not. Would you be able to do that honestly and fairly, or would you be, do you think, perhaps, committed to sticking with an opinion you had on the way in?
JUROR: You know, I feel he's guilty, though, because, you know, before this, all the news and everything, before watching it for, like, a couple of days --
THE COURT: Right.
JUROR: Yeah.
THE COURT: So you think, no matter what you heard at trial, you would stick with that view?
JUROR: Yes, guilty.
THE COURT: Okay. With respect to a possible penalty, you said that you thought he should not get the death penalty?
JUROR: Imprisonment.
THE COURT: Again, is that something that you are committed to on the basis of what you know now, and would you be able to change it either way if you heard something at trial that affected you?
JUROR: More towards leaning towards being life without the possibility of parole, though. I'm more with that.
THE COURT: Okay. So you don't think that you would be open to other considerations? You would stick --
JUROR: Death penalty?
THE COURT: Death penalty, for example.
JUROR: No, I don't think I could consider it.
THE COURT: If you look at Question 90, we gave a number of options as to what your views were. And that said -- the one you selected -- it's on Page 24.
JUROR: Do I have it? Yup, okay.
THE COURT: So there are a number of options. You circled Option B, which said, "I am opposed to the death penalty and would have a difficult time voting to impose it even if the facts supported it." That's a little bit different from what you just said. You said that you would never do it.
So the question is: Would you be open to the death penalty as a possible punishment on the facts and overcome any difficult time that you might have in doing that? Or is it your view that you're so firm in your view about the death penalty that you would not be open to the possibility of imposing it?
JUROR: Yeah.
THE COURT: Which? Tell me --
JUROR: I wouldn't -- without the possibility, I suppose. I probably -- I probably should have looked at it a little bit better. Sorry about that.
THE COURT: Tell me again. Tell me what your position would be. Would it be something that, even if you had a difficult time doing it, you would be open to doing, or is it that you are so committed against the death penalty that you would not be able to do it?
JUROR: Committed against it. I should have wrote that down. I'm sorry about that.
THE COURT: Okay. Thank you. I'll have you step out.
JUROR: Is that it?
JUROR: Good morning.
THE COURT: Juror No. 10. So we have your questionnaire. You have the original in front of you for reference, if necessary.
JUROR: Okay. Thank you.
THE COURT: Tell us about your experience in Taiwan.
JUROR: I was there doing research on a Fulbright scholarship, and I was learning Chinese and doing some further research for my Ph.D.
THE COURT: When was that? When?
JUROR: When? 2009 into 2010, nine months.
THE COURT: Your wife is, you say, a research scientist?
JUROR: Yes.
THE COURT: Can you give us some idea what her field is?
JUROR: She studies biomineralism at the Forsyth Institute in Kendall Square.
THE COURT: What is that?
JUROR: How teeth grow.
THE COURT: Okay. You have a sister who is a judge?
JUROR: Yes.
THE COURT: What sort of court does she sit in?
JUROR: Utilities. She makes decisions on utilities in Pennsylvania.
THE COURT: A regulatory --
JUROR: I believe so.
THE COURT: -- department?
JUROR: Yes.
THE COURT: When you say "utilities," you mean power utilities, things like that?
JUROR: Yes.
THE COURT: And you're a professor of theology at Saint Anselm?
JUROR: Yes.
THE COURT: Do you use social media?
JUROR: Email.
THE COURT: Only?
JUROR: Yes.
THE COURT: No Twitter or Facebook or anything like that?
JUROR: No.
THE COURT: What is 350.org?
JUROR: It's a concern about climate change.
THE COURT: Are you active in the organization?
JUROR: I went to a demonstration in Taiwan.
THE COURT: When you were there?
JUROR: When I was there, yes.
THE COURT: Since then?
JUROR: Since then, no. My career keeps me quite busy.
THE COURT: We asked a number of questions about attitudes towards various participants in a trial like that, prosecutors, defense lawyers, law enforcement. And in response to the question about law enforcement officers, you said, "I have witnessed small abuses of authority." Can you tell us what you had in mind?
JUROR: Yes. An officer throwing on his lights so he can make a left-hand turn into a convenience store.
THE COURT: Does that leave you with any attitudes or feelings towards law enforcement officers generally that would interfere with your ability to fairly judge testimony, for example, from a law enforcement person here?
JUROR: Well, since most of the law enforcement officials are federal officials, and these days, in the news, there's been a lot of criticism of how a lot of the evidence is gathered. So, yeah, I'm slightly suspicious of the Federal Bureau of Investigation.
THE COURT: Would that interfere with your ability to fairly judge evidence from that source?
JUROR: I think not. I think, in terms of making judgments, the bigger question has to do with the death penalty.
THE COURT: We're coming to that.
JUROR: Okay.
THE COURT: Go ahead. With respect to assessing the testimony of law -- we had a specific question actually which asked you that. I raise it because of your answer to the other question. Actually, if you want to look at it, it's Page 12. It's Question No. 36, which asked whether you would be able to evaluate the testimony of a law enforcement officer the same as you would any other witness or whether the person's status as a -- or the fact of the employment as a law enforcement officer would itself be a factor in your assessing credibility or incredibility, either way?
JUROR: No, I don't think we need to make a bigger deal of this. I would give a bias in favor of the testimony -- of the witness.
THE COURT: You would or wouldn't?
JUROR: Would.
THE COURT: You would favor law enforcement testimony?
JUROR: I'm saying I would assume that it would be an officer in good standing who has -- I assume that you've already vented -- or vetted the evidence as to how it was gathered and that it's all legal evidence that he would be commenting on.
THE COURT: Well, witnesses come in, take the stand, are asked questions and give answers.
JUROR: Yes.
THE COURT: The jurors ultimately will evaluate those answers. They'll find some true and reliable, and they might find others maybe not true, maybe less reliable. For every witness, where there's a controverted fact, you may have to make those kinds of judgments.
The question is: Would you give categorical consideration to the fact the person was, for example, an FBI agent in deciding those issues, or would that -- you be able to assess that evidence using the same tools of assessment that you would use on any witness? Would you treat them differently, I guess, is the question.
JUROR: I would not categorically discount an FBI agent's testimony.
THE COURT: Would you automatically credit it?
JUROR: No.
THE COURT: Would you look at Page 17 and Question 60 --
JUROR: Uh-huh.
THE COURT: -- which asks whether the government acts unfairly towards Muslims here or in other parts of the world. You gave a rather extended answer.
JUROR: Yes.
THE COURT: How, if at all, do you think that your view in this respect would affect your evaluation of the evidence in this prosecution? Would it affect it greatly, not at all, somewhere in the middle --
JUROR: I'm --
THE COURT: -- irrelevant?
JUROR: I'm going to be asking questions of the evidence, but my assumption is, is that the counselors will discuss whether -- and you will decide whether evidence is admissible, whether it was rightfully gathered or if it was illegally gathered and so forth.
THE COURT: Is that your concern, about the abuse of obtaining information essentially?
JUROR: Yes.
THE COURT: Look at Page 20 and Question 17. This asks about --
JUROR: What question?
THE COURT: 77. Did I say 17? 77.
JUROR: Okay.
THE COURT: This asks about whether you've formed an opinion as to various matters: whether the defendant was guilty, whether he's not guilty, whether he should receive the death penalty, whether he should receive -- should not receive the death penalty. And for all of those you said "unsure," and you wrote questions in the margin. "What are the charges?" "What is the alternative?", and so on. Can you tell us what you were thinking when you answered the question?
JUROR: Well, it's only until latter pages that I realized that he's accused of 17 different charges. In order to answer these questions, I would have to know specifically what those charges are and so forth. So I can't answer a question regarding his guilt or the decisions that come from his guilt or innocence unless I know what the charges are.
THE COURT: Okay.
JUROR: Is he guilty? What's the charge? What if he's not guilty? What's the charge?
THE COURT: To answer that question --
JUROR: I want to know what the charges are.
THE COURT: And the evidence, I presume, that is presented with respect to that charge?
JUROR: Yes.
THE COURT: Do you understand the government has the burden to prove any charge beyond a reasonable doubt by the evidence?
JUROR: Yes.
THE COURT: You would be able to apply that standard?
JUROR: Yes.
THE COURT: Hold the government to that proof?
JUROR: Yes.
THE COURT: And with respect to the penalty possibilities, which are C and D of that question --
JUROR: Yes.
THE COURT: -- again -- well, why don't you tell me.
JUROR: At this point, my question is: What's the alternative? At this point, and perhaps later in the questionnaire, it was quite clear that the alternative is life imprisonment without release. I will not vote for the death penalty with that option.
THE COURT: Under any circumstance?
JUROR: Under any circumstances.
THE COURT: You've actually posited one circumstance, but it's probably an unlikely one, that is, the failure of the prison system.
JUROR: Should the walls come down and we need to protect innocent lives, then one could enforce the death penalty. But our prison system, I think, is generally reliable, and I think the public will be safe from any further harm from a potential killer.
THE COURT: If you look at Page 23, the question -- so Question 88 gave your kind of summary opinion which is similar to what you just said, I guess?
JUROR: Yes.
THE COURT: Question 89, you circled -- on the scale of 1 to 10, you circled No. 2. One might have thought, given your answer to 88, you might have circled No. 1. Is there some reason why you chose 2 instead of 1?
JUROR: "Please circle one number that indicates your opinion about the death penalty." A "1" reflects a belief that a death penalty should never be imposed. I said, "My opinion is not that it should never be imposed but should never be imposed when a modern prison system is available." That's the "2."
THE COURT: Okay. All right.
JUROR: I'm very suspicious of questions that use "always," "never," "any," these sorts of things.
THE COURT: Turn the page to the next question, 90. You circled "E," which said you could vote for -- you're in favor of the death penalty but could vote for life imprisonment. That seems inconsistent.
JUROR: I'm in favor of the death penalty, but I could vote for a sentence of life imprisonment without the possibility of release if I believed that the sentence was called for by the facts and the law in the case.
As I read that, as I said, that the death penalty is a possibility but only if that -- there's some possibility of a person not being contained. I'm trying to use your answers that you provide to your questions. So I think by now my position is pretty clear.
THE COURT: When you say you're in favor of the death penalty, you are to the limited extent you described, is that it?
JUROR: In theory, I'm open to it. In practice --
THE COURT: If there's a prison system that's adequate, then you would not be; am I correctly understanding you?
JUROR: That's correct, yeah.
THE COURT: But that is more or less absolute. There's no --
JUROR: That's what we're getting to. There's no way in modern America today and starting over the course of this trial that I'm going to vote for the death penalty. I will not.
THE COURT: Question 94, we asked about what -- how people might react to your service.
JUROR: Yes.
THE COURT: You said you might be denied tenure. Why would you think that would happen?
JUROR: Because --
THE COURT: Somebody said something to you about that?
JUROR: I'm a Catholic theologian. The position of the Catholic church, it's not dogma, but it's, as taught by John Paul II, who's just been sainted, that the position is, as I just described, that the innocent lives need to be protected and that the death penalty should only be used in instances to protect the innocent. So if somehow my colleagues think that I voted for the death penalty -- which my understanding is, you need a full jury, correct, to get the death penalty? Then they would wonder what I know about Catholic social ethics.
Related to my profession -- again, I think I wrote somewhere in here that, you know, there's no inconvenience to me serving on a jury, and that's true. But if I may plead for my students, we're well into the semester, and I'm teaching courses that only I can teach. If I'm called to jury duty, this would create a very difficult situation for a great many people at my institution.
THE COURT: Okay. Thank you. You may step out.
JUROR: Thank you.
THE COURT: Does anyone need a break?
MR. WEINREB: That's five.
THE COURT: Why don't we take a short break.
MR. WEINREB: Uh-huh.
(Recess taken at 11:28 a.m.)
(The Court entered the room at 11:44 a.m.)
(SIDEBAR CONFERENCE AS FOLLOWS:
MR. WEINREB: Your Honor, we were --
THE COURT: Is the audio on or off?
MR. WEINREB: It's off. I believe he starts it when you're ready, your Honor.
THE COURT: Keep it off for a minute.
MR. WEINREB: We were just going to propose that, for doing the strikes, we keep it off as it's normally done.
THE COURT: Right. We had talked about talking about it after each five. I'm concerned about the time. We have another panel. So I'm just wondering if we should reconsider that. Would it be adequate for everybody sort of take note of their positions, and we can do it all at once once we've been through all the jurors?
MR. WEINREB: All today's jurors?
THE COURT: All -- no, no, just -- even after the first 20.
MR. WEINREB: That's fine by the government.
THE COURT: I think I'd like to just keep going.
MS. CLARKE: We'll be going until 6:00 tonight if -- I'm not complaining.
MR. WEINREB: That's fine.
THE COURT: We'll proceed with the next juror.
MR. WEINREB: Actually, your Honor, before we proceed with the next juror -- this can be on the record.
THE COURT: Okay. Go ahead.