8.Individual Voir Dire — Questionnaire Follow-Up, Publicity, and Sentencing Views
134 lines(SIDEBAR CONFERENCE AS FOLLOWS:
MS. CLARKE: On the next one, the parties agree --
THE COURT: I know, but I don't -- I don't want her to know that or the others.
MS. CONRAD: The one after that --
THE COURT: This is going to be brief, but I understand that this is an agreed excuse. But rather than just send her on her way, we're going to treat her like everybody else but --
MS. CLARKE: But she's gone?
THE COURT: If the parties agree on it, she will be excused.
Back on.
. . . END OF SIDEBAR CONFERENCE.)
COURT CLERK: 15.
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: I had previously instructed all the jurors to avoid any discussion of the case after that session and until now. Have you been able to abide by that?
JUROR: Yes, sir.
THE COURT: Have you avoided any media about the case?
JUROR: Yes, sir.
THE COURT: Tell me about your use of social media.
JUROR: I use Facebook, Instagram and Pinterest, but I do it based off of my job. I am a makeup artist, so I take pictures of myself and show them off and try to gain business through that material.
THE COURT: I just want to follow up on some of the questions. And you have the questionnaire there if you want to look along. Let me ask you to turn to Page 20, Question 77. We asked about whether, based on things you'd seen in the media or heard from other people, you had formed an opinion about, first, whether the defendant was guilty or not and, second, whether he should receive the death penalty. And you answered, yes, you had an opinion about his guilt and, yes, you had an opinion about his -- that he should receive the death penalty. Can you tell us what led you to make those conclusions?
JUROR: I feel as if it was a capital punishment. I believe in the death penalty in this particular situation.
THE COURT: Is it the case that you, based on what you understand anyway, given the nature of the crimes involved here, that you would be firmly for the death penalty and unable to consider the alternative of life imprisonment?
JUROR: If it was a capital crime, I believe I would still feel as firmly with the death penalty.
THE COURT: A capital crime is any crime for which the death penalty might be imposed. So there's always the question, even on conviction of a capital crime, whether it should be imposed. I guess that's the question.
JUROR: I still have firm faith, yes, sir.
THE COURT: Okay. Thank you. Why don't you step out.
THE COURT: This is Question 40?
MS. CONRAD: Question 40, yes, your Honor. And the document that I handed up indicates that this juror had an arrest for assault and battery in 2012, and the charges were --
THE COURT: I'll ask him about it. I see it was...
Back on.
(In open court:)
MR. BRUCK: Excuse me. Before the juror comes in, if we could, when you ask him -- when you ask him about it, could the Court simply ask the juror if -- whether this is the answer to the question rather than making it clear that you already know there's something else, and see whether the juror still says, No, that's it. It might be more revealing on the question of credibility.
In other words, I guess if he learned about it, if someone is concealing something, you would be giving them a little more rope, and we might learn more if he still says, No, that's it, and then you'd say, Well, what about this, rather than making it clear from the beginning he's already backpedaling and say --
THE COURT: All right. I can think of asking it that way. Okay.
(Pause.)
(The juror enters the courtroom.)
THE COURT: This is Juror No. 16.
JUROR: Good afternoon.
THE COURT: Good afternoon.
Have you abided by the instruction I gave when you were here last time to avoid any discussion of the case with anyone or any exposure to media or other sources of information about it?
JUROR: Yes, your Honor.
THE COURT: Okay. I have a few questions to follow up with you on the questionnaire, and there's -- it's in front of you if you want to look at it at any time.
JUROR: All right.
THE COURT: I'd like you to look at Question 11 and --
JUROR: Yes.
THE COURT: Would that prevent -- present any issue of -- extended sitting in the courtroom or anything?
JUROR: No, I don't believe it would if --
THE COURT: So we usually sit, you know, roughly speaking, in two-hour blocks, two hours and then take a break and then --
JUROR: No. I think if I was empaneled, I would watch my fluid intake and I would be fine.
THE COURT: All right. Let me ask you, you're employed as a limo driver?
JUROR: Yes, as an independent contractor. Yes, sir.
THE COURT: Okay. In Question 27 it says that you are unemployed due to an auto accident. Is that --
JUROR: No, I'm unemployed due to a work injury. Did I put auto accident?
THE COURT: Yeah.
JUROR: I recently had an auto accident, but the unemployment -- the disability is due to a work injury that I had.
THE COURT: What kind? You don't have to get too specific.
JUROR: Cervical. I have cervical hardware in my neck. But it doesn't prevent me from --
THE COURT: Was the accident before you started driving as a limo driver?
JUROR: What do you mean, my work injury?
THE COURT: Yeah.
JUROR: Yes, sir. Yes.
THE COURT: In other words, did you change your employment and, you know, you were unemployed from what you used to do because of the injury but you're able to be a limo driver? Is that --
JUROR: Yes, your Honor. I drive more as an activity than an employment-type thing. I just picked it up as sort of an independent contractor for a limo company.
THE COURT: I see.
Let's cut the audio for a second.
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
THE COURT: Okay. I think we can go back on the audio.
(In open court:)
THE COURT: Number 62 on page 17, you -- I'll wait until you get there -- you answered that you believe the war on terror was overblown or exaggerated.
JUROR: Number --
THE COURT: 62.
JUROR: -- 62? Yeah, I do believe that.
THE COURT: Can you just briefly tell us what your thoughts are on that.
JUROR: What my thoughts are on that? I believe that the way the news -- the news grabs on it and tries to inflame us. That's how I feel as far as the exaggeration. I mean, I'm not trying to say that the war on terror is not there -- it is there -- but I think that it's overblown.
THE COURT: Have you followed over the time prior to your appearance a couple of weeks ago, whenever it was, media reports about this case?
JUROR: No, sir.
THE COURT: Even before you came in as a juror?
JUROR: Even before. The only time I followed was when the initial thing happened. Other than that, I don't follow too much -- too much of the news. Simply because of the answer that I gave you about the war on terror and all of that, I prefer to not have strong opinions about it.
THE COURT: And if you'd look at page 20, Question 77, in that question we asked a series of questions about whether you had formed an opinion based on the media or other things that the defendant here is guilty or not guilty or should or should not receive the death penalty.
You checked the box "no" for each of those.
JUROR: That's correct.
THE COURT: Is that the condition of your mind, that you have not formed an opinion about any of those things?
JUROR: I have not formed an opinion of that in any way.
THE COURT: And that's including whether he is guilty of any offenses?
JUROR: Correct.
THE COURT: And I guess in the next question you say you haven't expressed an opinion to anybody else about those matters?
JUROR: No, I have not.
THE COURT: If you turn to page 23, beginning with Question 88, we asked a series of questions about your attitude towards the death penalty or possible alternate punishment of life imprisonment without release. With respect to the death penalty, you said you were neutral. You had neutral feelings. Maybe amplify that a little and tell us what you think about the death penalty in general.
JUROR: I don't think of the death penalty pro or con; I'm neutral on it. I don't know what -- how I would feel about it.
THE COURT: On the next page we had a series of choices that you could pick that would indicate what was closest to your opinion, and you picked D which says you're not for or against the death penalty, you could vote to impose it or you could vote to impose a sentence of life imprisonment, whichever you believed was called for by the facts and the law in the case.
JUROR: That's correct. I believe that.
THE COURT: Is that true for this case?
JUROR: Yes, sir. I would depend -- I would depend on the powers that be to convince me one way or the other.
THE COURT: What do you mean by "the powers that be"?
JUROR: The case itself. The case in general.
THE COURT: So if -- first of all, of course the defendant has to be proved guilty to be punished in any way.
JUROR: Correct. Correct.
THE COURT: And the first phase of the case would be for the government to prove that by the evidence. So you are telling me you don't have a preconceived notion of that because you -- I guess for the reasons you said?
JUROR: I wouldn't even consider it until the case in general.
THE COURT: All right. If he were to be convicted of a crime that carried capital punishment, would you then -- based on what I've called the penalty phase where the government would offer evidence of things that might point toward a serious -- more serious evaluation of the crime and therefore support the death penalty, and at the same time consider what might be presented by the defense as something that might mitigate against that and point in the other direction, towards life imprisonment rather than the death penalty -- would you be able to give consideration to either of those alternatives without preconception?
JUROR: Absolutely.
THE COURT: Okay. Thank you. You may step out.
JUROR: Thank you.
(The juror is excused.)
THE COURT: The live feed is apparently not working.
MR. DOREAU: The audio has been going constantly.
THE COURT: But the video has not?
MR. DOREAU: The video has been cutting in and out. If I can have one second, I can try a new cable.
THE COURT: I'm thinking we may break for lunch at this point. We're going to have to do it anyway. Can we make it about a half-hour, so maybe 1:15?
MS. CLARKE: Can we leave our stuff?
THE COURT: Yes. The courtroom will be secured. Yes.
(There is a recess in the proceedings from 12:48 p.m. to 1:25 p.m.)
THE COURT: Before we bring in the next juror, this has obviously been a little more time-consuming than perhaps we anticipated. In light of the fact it's almost 1:30 and we still have half this panel, I think we're considering sending the second panel home to come back tomorrow morning and we'll not schedule what we had planned for for Friday. We'll use tomorrow's -- if the pace picks up, which I think it may as we all get a little more accustomed to it, we'll make the adjustment.
MR. BRUCK: We'll just have the second 20 for all-day Friday?
THE COURT: That's right. Okay? I just wanted to get assent to that.
MR. WEINREB: Sure.
THE COURT: So the jury clerk will send the panel -- just for your information, the first panel we provided lunch for. They didn't have to go downstairs. They've eaten.
(The juror enters the courtroom.)
THE COURT: Good afternoon.
JUROR: Good afternoon.
THE COURT: When you were here before I asked everybody to avoid any discussion about the case with anybody after this process had begun. Have you been able to comply with that?
JUROR: To the best of my ability. We had spoken, you know, a tiny bit, but nothing --
THE COURT: Who's "we"?
JUROR: I mean, I told my wife that, you know, I'm on the trial, but nothing big, though. I purposely tell them, "Let's not talk about this."
THE COURT: Okay. Well, I told you you could obviously discuss with your family that you might be on the trial because it involves scheduling and so on, but what I intended you to avoid was any discussion of the substance of the case, the merits or --
JUROR: No. No, I have not.
THE COURT: You have not? Okay.
So we have your questionnaire. You have the original right there, actually, if you want to refer to it.
JUROR: I remembered a few mistakes on this.
THE COURT: Well, are there some things you want to mention? It might be useful at the beginning.
JUROR: Yeah. In my house, we -- I found a Red Sox Boston Strong towel. Somebody took us to a game. So I have that and I said I didn't.
THE COURT: Okay.
JUROR: I also -- what else did I -- things have changed since that day, since I filled that out, so I don't know if that matters, or just on the day?
THE COURT: Yeah, okay. We'll come to that.
JUROR: Okay.
THE COURT: Anything else that occurs to you? Anyway, if it does, bring it up. But I have some things that I want to address and it actually, I think, is what you're thinking of.
And if we could cut the audio just briefly for this.
(Discussion at sidebar and out of the hearing of the public:)
[REDACTED]
THE COURT: Yeah. Okay. I thought that was what you were referring to when you said something had changed that day.
JUROR: No, no, that isn't it.
THE COURT: Okay. What does it relate to?
JUROR: My views.
THE COURT: Okay. We'll go back on the audio.