10.Individual Voir Dire — Professional Background and Capital-Punishment Views
350 lines(Discussion at sidebar and out of the hearing of the public:)
THE COURT: We have tried not to signal to people who might be excused without being examined that they could infer the outcome. And so we had one earlier today, this morning, brought in for a few questions just so it would appear that she was being examined like everyone else. So even with respect to 31, I think we may do that.
MS. CLARKE: Right.
THE COURT: But I understand that the parties are agreed on that.
And I guess I'm -- we can go back on the record, on the audio.
(In open court:)
THE COURT: With respect to this one, I guess if you -- we'll have her in.
(The juror enters the courtroom.)
COURT CLERK: 27.
THE COURT: Hi.
JUROR: Good afternoon, your Honor.
THE COURT: I'm going to follow up on some of the answers you gave us in the questionnaire.
JUROR: Okay.
THE COURT: And let me just ask: When we were last here I instructed everybody to avoid any discussion of the case with anybody. Have you been able to abide by that?
JUROR: Yes, your Honor.
THE COURT: And also to avoid any exposure to media stories?
JUROR: Yes, your Honor.
THE COURT: Okay.
Now, tell me about your professional employment.
JUROR: I'm self-employed, and I've been self-employed pretty much for the last 20 years, since graduating law school. At this time mostly I do postconviction work for the Committee for Public Counsel Services as a private bar advocate.
THE COURT: Okay. Appellate work. Is that what you said?
JUROR: Yes, your Honor.
THE COURT: In state courts, federal courts?
JUROR: State courts.
THE COURT: Are you a sole practitioner or --
JUROR: My law partner is my husband.
THE COURT: Okay. Just the two of you?
JUROR: Just the two of us.
THE COURT: And what is his area of practice?
JUROR: He does that and he also does -- he does postconviction work and he also does landlord-tenant stuff in the Boston Housing Court.
THE COURT: Okay. You expressed a concern in the questionnaire about the length of time this case might take and the impact on your practice, I guess.
JUROR: Yes.
THE COURT: Is there anything more you want to add to that or has your thinking about that changed at all?
JUROR: No, it's pretty consistent with this. It's just the two of us at home so... We have four children and we kind of juggle work and the kids and the practice. So it would impact that.
THE COURT: I guess it's a matter of degree.
JUROR: It is a matter of degree.
THE COURT: So can you tell us how much of a burden it would be? Would it be possible for you to live with it for the duration --
JUROR: I would have to work in the evenings because I don't think it would be financially possible for us to sustain -- you know, to pay our mortgage if we weren't both working, so...
THE COURT: Yeah. Is that feasible, keeping in mind, again, that we sort of reserve Fridays for people to have a chance to be in the office and catch up on some things. I know that's -- one day is not equal to five days, but a couple of months of evening work, is that a possibility?
JUROR: Yes, your Honor. I believe so. It would be difficult but I think it would be possible.
THE COURT: Tell me about your -- the other thing I wanted to ask you about in that question was you have a trip planned in February?
JUROR: It's a school field trip of sorts. We're going to the United Nations. My children are active in a group through school and there's going to be a field trip there. If court wasn't in session I would have -- I suppose I could join them in Manhattan that Friday if I...
THE COURT: Is it a weekend trip?
JUROR: No, it starts on Wednesday. It's a Wednesday, Thursday, Friday trip, returning late Friday night. So the kids will be excused from school.
THE COURT: Oh, I see.
JUROR: They're working with Ambassador Chowdhury on a project.
THE COURT: How much do you use social media, if at all?
JUROR: Not very much. I try to follow my kids somewhat. They...
THE COURT: Do they have Facebook accounts?
JUROR: Facebook isn't cool anymore.
THE COURT: Neither am I.
(Laughter.)
JUROR: I have a Facebook account which I don't really use. They use Instagram a lot posting pictures.
THE COURT: Okay.
JUROR: I don't use them too terribly much. I don't post terribly much but...
THE COURT: Okay. Twitter?
JUROR: I've never tweeted. Every once in a while I find that my high-schooler is getting some tweets on in school, which he should be working in school and not tweeting.
THE COURT: So on page 20, in Question 77, we asked prospective jurors about whether they had formed an opinion about this case both as to whether the defendant was guilty or not and, if so, whether -- what penalty might be imposed on him.
And so if you look at Question 77, the four subparts, and you answered "unsure" to each of them.
JUROR: Uh-huh.
THE COURT: Could you amplify on that, what your thinking was as you answered that question?
JUROR: I just think the government should be held to its burden of persuasion with respect to this case, with respect to every aspect of this case.
THE COURT: This is an area of the law you're quite familiar with, I gather?
JUROR: Yes, your Honor.
THE COURT: And you don't have any trouble -- even if you have some impressions from media accounts or anything, you don't have any trouble with making sure the government is put to its proof?
JUROR: I think the government should be put through its paces, yes.
THE COURT: With respect to the penalty, if the defendant is convicted of a capital offense --
JUROR: Yes, your Honor.
THE COURT: -- you said you were unsure in Question 77, and later on we asked some questions about your attitudes toward the death penalty. In Question 88 you said you were against it?
JUROR: Yes, your Honor.
THE COURT: And on the scale we gave you in 89, 1 through 10, you put yourself at the low end of the numbers, which was on the strongly opposed end of the spectrum, sort of, but you didn't put down 1, so I guess it leaves some reservation there. And then the last one I want to direct your attention to is the next page, page 90, where you chose B and said "I'm opposed to the death penalty and would have a difficult time voting for it even if the facts supported it," but you didn't say, which might be a more absolutist opinion, you could never under any circumstances do it.
So I want to know where you are on that end of the spectrum. Could you conceive of factual circumstances in a case that would lead you to conclude that contrary to your general drift or attitude that the particular case for certain reasons calls for an exception to your general opposition and would support your -- would have your support for a death penalty under those circumstances?
JUROR: I could.
THE COURT: You could?
JUROR: I could.
THE COURT: Could you give an example of something like that?
JUROR: If my children were involved.
THE COURT: Okay. Would it have to be something personal to you?
JUROR: I don't know.
THE COURT: So what we ask any juror, obviously, is to evaluate the particular evidence in the case and make a conscientious decision about that, the issues in that case. We ask sort of that question in 95 and 96. And 95 asked whether if you thought -- if he was found guilty, could you conscientiously vote for the death penalty, and we asked the other side of that question in 96 on the next page, if you found he was guilty could you conscientiously consider voting for life imprisonment.
As to the second one you said yes, as to the first one you said you're not sure, probably not.
JUROR: Probably not.
THE COURT: Okay.
JUROR: I would be disinclined to.
THE COURT: Okay. But nonetheless, there could be circumstances that would lead you to do it. Is that what you're telling me?
JUROR: I would leave myself open to persuasion but I would be disinclined to.
THE COURT: Okay. Thank you.
JUROR: Thank you.
(The juror is excused.)
(Pause.)
(The juror entered the courtroom.)
THE COURT: Hi.
JUROR: Hi. How are you?
THE COURT: Good. Thank you for being patient.
JUROR: Anytime.
THE COURT: First, just as a preliminary, we -- when you were last here we instructed the potential jurors to avoid any discussion of the merits of the case or -- and to avoid any media exposure about the case. Have you been able to abide by those?
JUROR: I have, your Honor.
THE COURT: Okay. You are, yourself, an attorney?
JUROR: I am.
THE COURT: But not practicing right now. Is that it?
JUROR: Correct.
THE COURT: Tell us about what your practice was and what you're doing now.
JUROR: Okay. So when I got out of law school, I actually served as a law clerk for the superior court. So that year I was a law clerk to Judge Doerfer and Judge Larkin.
THE COURT: Was that here in Suffolk?
JUROR: Superior court, yup.
THE COURT: I was on the superior court at the time.
JUROR: Yeah, I think you might have been in the program where you had your own law clerk.
So then what I did was I went to Hanify & King for four years -- what was Hanify & King -- and then I went to Gadsby Hannah where I became a partner. During that time I was in a business litigation role essentially. Then I went to Tufts Health Plan approximately 2003 and my role was associate general counsel.
About four years ago I transitioned out of the legal position to a business role. So for about a year and a half I worked for our chief operating officer doing business analysis and now I'm actually directing our client services department.
THE COURT: Okay. So have you ever practiced criminal law?
JUROR: So I never practiced it. I did have an internship my second year of law school working for the JAG Corps, and I did work with a defense attorney but never practiced criminal law.
THE COURT: You had -- prior to your current marriage you were married to someone who's a lawyer?
JUROR: Yes.
THE COURT: And did he have a criminal practice?
JUROR: No.
THE COURT: You're concerned about the length of the trial. Can you tell us about that a little bit?
JUROR: Yeah. I mean, not from a professional standpoint, but my concern -- and I don't know whether this constitutes a hardship. But I have two boys, ages 10 and 11, and, you know, typically I spend February and April vacation with them. And we do have a trip planned for April. But, you know, I understand the importance of this obligation.
THE COURT: Tell us about whether and how much you use social media.
JUROR: So the only social media that I belong to, if that's even the right word, is Facebook, and I probably check it a few times a day. I rarely post. I'm not a social media person really.
THE COURT: Your father was a Milton police officer?
JUROR: Correct.
THE COURT: And he's been retired for some years?
JUROR: Yes; 17 years now.
THE COURT: Yeah. Obviously in a criminal case there are law enforcement witnesses and so on. Would you have any partiality toward them because of your father's career?
JUROR: I don't think so, your Honor.
THE COURT: I'd like you to turn to page 20 in the questionnaire and look at Question 77. In that question we asked prospective jurors about whether they had formed any opinions about, first, whether the defendant was guilty or not; and, secondly, if so, what the penalty might be. You answered to each of the four subparts that you were unsure.
Could you elaborate on that?
JUROR: Oh, so I probably -- if -- the question is "have you formed an opinion." I don't have an opinion one way or the other.
THE COURT: Okay. So notwithstanding what you may have seen in the media coverage and so on, you have reserved judgment. Is that a fair summary of what your position is?
JUROR: That's a fair summary.
THE COURT: As a lawyer you understand, of course, that the government has to prove a defendant guilty beyond a reasonable doubt at trial, and would you --
JUROR: I do.
THE COURT: -- follow instructions to that effect and be sure that if you eventually were to vote for guilty it was because you were convinced by the trial evidence beyond a reasonable doubt?
JUROR: Yes.
THE COURT: Tell us about the other -- the C and D parts. Well, actually, let me do this and turn to page 23. We asked there a series of questions about the death penalty and attitudes toward it. Question 88 we asked about your general views of the death penalty, and you said "neutral." And I guess you reflected that in the next question where we ask you to put it on a scale from "strongly opposed" to "strongly in favor," and you picked 5, which is in the middle of the scale.
So do those questions fairly represent your view about --
JUROR: They do.
THE COURT: And then if you'd turn to the next page, you chose among -- again, a scale of options, letter D, which says you're not for or against it; you could vote for it or you could vote for life in prison instead, whichever you thought was called for?
JUROR: Correct. I continue to believe in that.
THE COURT: So you would consider the evidence in the case, and if there was a penalty phase and you considered the aggravating factors and any mitigating factors, you would take all that into account and make some conclusion, and it could be in favor of the death penalty and it could be in favor of life in prison?
JUROR: I would, your Honor.
THE COURT: Is that fair?
JUROR: That's fair.
THE COURT: Okay. Thank you.
JUROR: Thank you.
(The juror is excused.)
MS. CLARKE: One follow-up. And there are a handful that listen to Matty in the Morning on the radio station, and the guy on that radio station has been -- his son was in the pool. I don't know whether he was excused.
MR. WEINREB: It wasn't Matty in the Morning himself.
MS. CONRAD: It's actually Matty in the Morning has [REDACTED].
MR. WEINREB: He was excused.
MS. CONRAD: He was excused?
Well, at any rate, this is relevant to what they listen to. There was a lot of discussion if [REDACTED]should try to get on the jury so that he could make the second cut and get close to the defendant and go after the defendant, and we actually have a recording of this discussion which included them saying things like, Well, gee, maybe we shouldn't be saying this on the radio, maybe we'll get in trouble.
THE COURT: So you want me to ask her about her listening to Matty in the Morning. Is that it?
MS. CONRAD: If she's heard any discussion on that show about this jury selection.
THE COURT: Okay.
MR. BRUCK: In fairness, I should say, this was done in a humorous way --
THE COURT: Right. Right. It sounds like --
MR. BRUCK: -- but it was not funny.
THE COURT: I mean, I'm just hearing the description of -- I understand that too.
MS. CONRAD: Attempted at humor.
THE COURT: It sounds like a wiseguy crack.
MR. BRUCK: It was a whole extended spiel.
THE COURT: Yeah.
(The juror returns to the courtroom.)
THE COURT: One follow-up. We asked about what radio or -- shows or things, internet shows you might listen to. You said you listen to Matty in the Morning on the weekday commute.
JUROR: Yes.
THE COURT: Apparently I don't, okay? I'm hearing it from somebody else. But there had been some comments on that program about this case. Did you hear any of them?
JUROR: No, I haven't been listening to it since your Honor gave me the order.
THE COURT: All right. Thank you. That's all we wanted to know.
(The juror is excused.)
MS. CONRAD: The discussion occurred first before the questionnaires were filled out when that juror got summonsed and then after, so depending on it could have been either --
(The juror enters the courtroom.)
THE COURT: Hi.
JUROR: How are you doing?
THE COURT: Thank you for your patience.
JUROR: No problem.
THE COURT: When you were last here I instructed all the jurors to avoid any discussion of the case or any exposure to media about it.
JUROR: Yeah.
THE COURT: Have you been able to follow that instruction?
JUROR: I have.
THE COURT: We're following up on some of the questions -- answers that you gave in the questionnaire, so it may be helpful to refer to it from time to time. That's your questionnaire right there.
My first questions are about whether you have any -- you would have any difficulties participating as a juror, and I want to look first at Question 9. It says you sometimes have some hearing difficulty?
JUROR: Yeah.
THE COURT: Is it serious enough that you would have any difficulty --
JUROR: Well, I mean, I don't think so. When you were talking earlier it was kind of hard for me to --
THE COURT: When I was on the bench giving you the instructions?
JUROR: Yeah.
THE COURT: Is it assisted at all? Do you have a hearing aid?
JUROR: I don't have an assistant, no.
THE COURT: Is it something that's intermittent and maybe depends on how loud somebody is talking?
JUROR: Yes.
THE COURT: And whether they're talking into the microphone and so on and so forth?
JUROR: Exactly.
THE COURT: So if you were a juror and you were having some trouble and you signaled to us, we would make sure the person spoke up, would that cure the problem?
JUROR: Well, I think that would help, definitely.
THE COURT: In Question 11, you take some medication that sometimes makes you drowsy?
JUROR: Oh, yeah, lisinopril. I take it in the morning every day.
THE COURT: Would your level of drowsiness be a problem to sit as a juror?
JUROR: I don't know. You know, I kind of learned how to, you know, operate with it, so... I've been taking it for a while, so...
THE COURT: I gather you probably go through your workday having taken it?
JUROR: Yeah.
THE COURT: Does it affect you then?
JUROR: No, not really. I think I've been okay with it.
THE COURT: And speaking of your workday, why don't you tell us a little bit about what your workday is like.
JUROR: What my workday is like? Pretty much I'm a general manager for Tedeschi's convenience store, so it can be challenging. The store is really based on the GM being there. You know how the convenience stores work. I'm there, I do a 50-hour week, and it's, you know, just a pretty busy store.
THE COURT: How many employees?
JUROR: Well, right now --
THE COURT: Let me ask it differently because some of them may be part time. How many full-time-equivalent employees?
JUROR: Equivalent? Okay. Well, I have an assistant manager full time; a specialist who's full time; and then we have a deli, and they have a deli manager and an assistant manager. Everyone else is part time.
THE COURT: And if you added all the part times together, how many full-time equivalents would that be?
JUROR: Added all the...
THE COURT: Roughly.
JUROR: Three, four.
THE COURT: Is it a seven-day operation?
JUROR: Oh, yeah. Yup. Yup. Six in the morning till eleven at night. It would be difficult if I had to leave for three to four months.
THE COURT: I see in -- there was a question about whether anybody in your family had worked for a law office, basically a prosecutor, public defender, and so on and so forth. And you said your niece's husband?
JUROR: Yeah,
[REDACTED]
THE COURT: And he has his own --
JUROR: Yeah.
THE COURT: I noticed the [REDACTED]name appeared later in Question 83.
JUROR: Right. His brother
JUROR: Right.
THE COURT: How well do you know the
[REDACTED]
JUROR: Well, I know [REDACTED]obviously more than I know [REDACTED]. I've known [REDACTED]since he was dating my niece. I can't really remember. It's got to be at least 10, 15 years.
THE COURT: And he's an attorney?
JUROR: He's an attorney.
THE COURT: And what's his practice, do you know?
JUROR: He's changed recently so I'm not 100 percent sure on his practice. I think it's accidents and --
THE COURT: Civil as opposed to criminal?
JUROR: Yes, exactly.
THE COURT: Okay. Now, how well do you know or interact -- how often do you interact with [REDACTED]?
JUROR: Just at, like, family events.
THE COURT: Why would he be at family events? Is he related to?
JUROR: Well, say he's -- he's --
THE COURT: He would be there because he's [REDACTED]brother?
JUROR: Exactly. So just at, like, you know, birthday parties for the kids and stuff like that, and different parties that the families might have.
THE COURT: One of the persons who was killed in the events that is about this trial was a police officer for MIT. Do you know if [REDACTED]had any relationship with him?
JUROR: I can't say that I know offhand if he actually did or not, to be honest with you. I think he -- he obviously might have known him but I don't -- I don't recall having --
THE COURT: Do you think you would be affected in your judging the evidence, at least particularly about the murder of Sean Collier, the police officer, because of your relationship with an MIT police officer? Would that affect you in any way? Would you be able to -- put another way, would you be able to be as critical a judge of the evidence in that case as you might be with other cases that you didn't have any connection with?
JUROR: I don't know. I don't think so. That's kind of a tough one. I don't think I could...
THE COURT: Do you yourself have any connection with the MIT police generally?
JUROR: I don't.
THE COURT: Could you give us an idea of how many times a month, a year -- you could pick the time frame -- you might be in contact with [REDACTED]?
[REDACTED]
JUROR: ?
THE COURT: Yeah.
JUROR: Two to three times a year.
THE COURT: And how about [REDACTED]?
[REDACTED]
JUROR: was a little bit more -- more frequent. Four to five, depending on what's going on with the family.
THE COURT: Where does your niece and [REDACTED]-- where do they live? What town?
JUROR: Newburyport.
THE COURT: I would like you to look at Question 74, which is on page 19. It asks what your reaction was when you got the jury summons, and you said, "When I realized what case it was I felt there's no way I could be impartial."
JUROR: Hmm.
THE COURT: Tell us your thinking behind that answer.
JUROR: My thinking behind that? Pretty much just, you know, following the case right from the get-go, following, you know, the marathon and the bombings and all the different news reports and things that I've -- I've read and I've seen, I kind of felt that -- I just didn't think I could put that aside and be partial [sic], frankly.
THE COURT: On the next page, Question 77, there's a four-part question to ask whether people had formed opinions based on what they'd seen and so on, and you answered to A that you had formed an opinion that he was guilty and you had formed an opinion that he should receive the death penalty.
JUROR: Yes.
THE COURT: In a criminal trial the government is required to present evidence that is sufficient to prove to the impartial jury that the defendant has committed the offense charged, and the government's burden is to prove that beyond a reasonable doubt. Notwithstanding that you have some views that would precede the trial, would you be able to assess the trial evidence under that standard and be sure that if there were a guilty finding it was only because the government had proved it beyond a reasonable doubt or do you think you would effectively lower the burden for the government or even reverse it and put it on the defendant to show that he was not guilty?
JUROR: Good question. Frankly, I feel like I've formed an opinion already.
THE COURT: So you wouldn't be able to --
JUROR: I don't.
THE COURT: -- be as rigorous as maybe the law requires. Is that what you're saying?
JUROR: That's -- yup, that's what I'm saying.
THE COURT: Okay. Thank you.
JUROR: Okay.
(The juror is excused.)
THE COURT: It is suggested that I remind people to avoid using the jurors' names. I know it's -- I have to suppress the impulse myself because I'm looking at the name, but try to avoid it. There have been a couple of slips.
(The juror enters the courtroom.)
THE COURT: Juror No. 31.
JUROR: Yes.
THE COURT: Thank you for your patience.
Tell me about your status as a student.
JUROR: Okay. I'm currently a full-time student, so I'm set to return next week. I'm a pharmacy student. This would be my last semester in school, and then I have rotations starting in May, I believe, so...
THE COURT: So your semester begins --
JUROR: Next Wednesday.
THE COURT: And continues till when?
JUROR: I believe classes end the first week of May, and then it's like two weeks of finals.
THE COURT: Okay. Let me just ask you a couple of questions about your attitude towards the death penalty.
JUROR: Uh-huh.
THE COURT: You seem to say in your questionnaire that you are more or less firmly opposed to it?
JUROR: Yes.
THE COURT: And would be unable, no matter what the circumstances, to vote to impose it?
JUROR: That is correct.
THE COURT: Would that be correct?
JUROR: Yeah.
THE COURT: Okay. Thank you.
JUROR: Thank you.
(The juror is excused.)
(Pause.)
(The juror enters the courtroom.)
COURT CLERK: 32.
THE COURT: Hi.
JUROR: Hello.
THE COURT: Last but not least.
JUROR: Yes.
THE COURT: Have you been able to abide by my instructions given the last time to avoid any discussion of the case --
JUROR: Yes.
THE COURT: -- or any exposure to media accounts about the case?
JUROR: Yes.
THE COURT: Tell me a little bit about the work you do. I guess you said -- what I'm interested in, I guess, is you said you're on a leave of absence?
JUROR: Yes. I work for Home Depot. I'm going back -- plan on going back the 26th.
THE COURT: Of January?
JUROR: Yes. Yeah. But I am on a medical leave of absence. I've had trouble with insomnia. I've been seeking treatment for it, but I'm definitely making progress. So if I'm not called for service I will be going back.
THE COURT: If you were called, you could postpone your return to the company?
JUROR: Absolutely. Absolutely.
THE COURT: Do you use Facebook?
JUROR: Yes, occasionally.
THE COURT: Well, you said every day in the form. Is that accurate?
JUROR: Well, I don't go -- I look at Facebook to see who's tweeting me, but I don't actually use it myself to send out...
THE COURT: Has anybody been sending you anything about the case?
JUROR: No, not at all.
THE COURT: This is picky, maybe, but if you'd look at page 14, beginning with Number 44 and through Number 46 on the next page, we say, Do you have any strongly positive or negative views about various categories, prosecutors, defense lawyers, and so on. And you say "no negative views."
JUROR: Yeah.
THE COURT: I just wanted to be sure that you weren't implying anything about whether you had positive views.
JUROR: No, both sides have a job to do. I recognize that. So I don't have any positive or negative views.
THE COURT: Do you have strongly positive or strongly negative views about any of the categories in those --
JUROR: No.
THE COURT: Turn to page 20, if you would, Question 77. In this question we ask people whether they have formed an opinion based on media accounts or otherwise about whether the defendant was guilty of the crimes he's charged with, and if so, what -- whether he should be sentenced to death or not. To each of the four options there you indicated that you were unsure.
JUROR: Yes.
THE COURT: Could you just tell us a little bit about your answer, why you answered it that way.
JUROR: I really haven't been following the case at all. Even though, you know, I'm sure there's been a lot of coverage, it's just been too close to home, I guess. And I didn't know anybody that was involved, so I didn't have the same interest as somebody who maybe did know somebody that was affected somehow, so...
THE COURT: Well, with respect to the question of guilt or not, at trial the government would be required to present evidence sufficient to convince the jury that the defendant had committed the offense charged, and the evidence would have to be so convincing that the jurors would have no reasonable doubt about it. That's always the burden on the government.
Do you have any difficulty applying those principles and making sure if you're a juror in the case, in order to prove the defendant guilty of any of these crimes, the government would have to do that, prove it beyond reasonable doubt to you? Do you have any difficulty with that?
JUROR: Yeah, they would have to prove it beyond a reasonable doubt definitely. Especially if, God forbid, the death penalty is called for.
THE COURT: Okay. You did say in answer to Question 78 that if he is found guilty you could support the death penalty?
JUROR: Yes.
THE COURT: If you turn over to page 23, you said the same thing in answer to Question 88 where we ask for your general attitudes about the death penalty. You basically used the same words, I guess. So the word I focus on is you could support it. I take that to be something different from you automatically would support it. Is that correct?
JUROR: I'm not for the death penalty, per se. But if somebody did something that called for that, I wouldn't have a problem.
THE COURT: Could you make that judgment only after you had heard all the evidence in what we call the penalty phase, where evidence is presented as to things that might support the death penalty and evidence will be presented about things that would call for, instead of the death penalty, a sentence of life imprisonment? So if you had that body of evidence in the penalty phase, would you be able to reserve decision about whether the death penalty should be applied until you heard and considered all that evidence?
JUROR: Whatever the instructions were to the jury, that's what I would do.
THE COURT: In Question 89 you said you're relatively strongly in favor of the death penalty. You're a 9 out of 10. I don't know if that -- sometimes it's hard to gauge that, but that's what you put there. If you look at the next page, you circled letter E, which is one of the many choices we gave you. You said you were in favor of the death penalty but you could vote for a sentence of life imprisonment without possible release if you believed that that sentence was the appropriate one on the facts.
JUROR: Right.
THE COURT: Does that truly represent your view?
JUROR: Yes, it does. Yes, it does.
THE COURT: So you're not automatically in favor of or against the death penalty in this case because you haven't reached that point of deciding.
JUROR: It would depend upon what was shown in court and what your instructions were.
THE COURT: Okay. I think that's all I have. Thank you.
JUROR: You're welcome.
(The juror is excused.)
THE COURT: So do you want to hold him?
MS. CLARKE: One follow-up, your Honor, on the insomnia question. He's suffering from insomnia but he didn't get good treatment for it so he's just going to go back to work? I don't know how that might affect his ability to sit. Did the Court maybe want to inquire a little bit more about how disabling that is?
MR. WEINREB: My recollection is that he said that it had been improving.
THE COURT: Yeah, I think he thought it was.
MS. CLARKE: I couldn't hear.
THE COURT: I thought he said he was going back to work next week or in two weeks.
MR. WEINREB: Right, if he wasn't selected to serve he would be going back to work because he was well enough.
MS. CLARKE: I couldn't hear him well enough so I thought he said, "I'm giving up so going back to work."
MS. CLARKE: It just seems like insomnia is something that --
THE COURT: I think we'll leave it as it is.
So I think we'll take a break. Among other things, the reporter needs a break. As we had discussed, I think we'll reconvene and go over the people we've examined and perhaps hear some argument and make some conclusions about it.
I intend to hear the argument openly, but in order to protect the integrity of the process, I may or may not announce conclusions on the basis of the argument. And if you have views on that, I'll entertain those as well. That's my inclination.
MR. BRUCK: I think that hearing the argument openly has the same effect as making the rulings openly. We don't really think that -- if the intention is to keep the criteria and the issues for disqualification from being in the public --
THE COURT: So you think we should do both off the record or off the public record?
MR. BRUCK: That's, in effect, at sidebar.
THE COURT: Let me think about that.
MR. WEINREB: Your Honor, we --
THE COURT: You may be right about that. So let me --
MR. WEINREB: With the caveat that it would eventually become public.
THE COURT: Yes, of course. Absolutely.
Just for those who are listening, we are concerned about protecting -- this is going to be an extended process and we're concerned about people being coached by outcomes. We want honest answers to the questions. So we'll take a recess and -- I presume people will want to confer among themselves before we get back together, so what would you say, about a half-hour? Is that enough? Do you want a little more than that, a little less?
MS. CLARKE: That sounds good.
MR. WEINREB: That's a good amount of time.
THE COURT: Okay. So about 20 minutes of four.
(There is a recess in the proceedings at 3:09 p.m.)
(The Court entered the room at 4:03 p.m.)