3.Publicity, Death-Qualification Questions, and Juror Follow-Up Limits

MR. BRUCK: About -- if I may, about the questioning, about follow-up questioning, again, we have no idea what this juror knows or has read. And we would ask the Defendant's 2 follow up -- Number 2 on the general voir dire request be asked to really draw out what this juror knows and has heard about this case. We would ask Number 3 be asked, Number 4.

We would also -- I'm sorry.

MR. BRUCK: Again, we feel that -- we had hoped that since none of these questions were put into the questionnaire despite our requests, that this would be the time that we would find out what jurors bring into the courtroom given the unprecedented level of publicity and the unprecedented level of direct talk, verbal communication and direct experience of the marathon bombing in this division of the Massachusetts -- of the District of Massachusetts. So we would -- we really feel that it's impossible to assess the impartiality of a juror like this without getting to what he has heard or read.

In addition, it's -- this is a juror who believes the defendant is -- I'm sorry. This is a defendant [sic] who says he's unsure whether he's guilty or not. That covers an awful lot of territory. We think our Number 11 -- our 10 and 11, which asks the juror to imagine that he was on the jury and the government didn't prove its case and they acquitted Mr. Tsarnaev and he went home, and then the juror is asked to say, Well, how do you think people would react, how would you react, how would you feel about that prospect, that gets at whether or not jurors can put it aside; not the verbal formulation of whether they could listen to the evidence and come to their own conclusion.

But this is reality, and there may be jurors who say, If the government didn't prove their case, sure, I could do that. But there are going to be a lot of jurors who will say, Well, we all know he's guilty and people would be furious and there would be an uproar. But if we don't ask the question, we'll never know.

So we think that these questions are really quite critical. In effect, we're asking can these jurors really presume this man innocent or is it a situation where everybody knows he's guilty and let's get on to the penalty phase, but, sure, I could listen to the evidence and, you know, make it look like I was a regular juror.

Secondly -- or maybe it's thirdly, as to the Morgan question, we, of course, will stand on our legal position that we're entitled to ask whether under the charges that have been brought in this case the juror could still consider life imprisonment. We're not asking for all of the facts to be laid out.

And then what we're asking for is for someone who has been charged with a terrorist crime, that is, the use of a weapon of mass destruction, that is the charge in the indictment, could the juror ever impose life imprisonment rather than the death penalty in that case?

The same is true of the statutory aggravating factors which are found in the indictment. They are alleged as special findings. And we think it's important to ask whether -- and we only use a couple of examples, "especially vulnerable victim due to childhood." In other words, if the murder involved a child, under Ring v. Arizona that has the legal equivalent of the element of an offense. Is the jurors' views on the death penalty such that he could never impose the death penalty in that -- life imprisonment, rather, in that situation? Is he talking about a completely different kind of case when he says "I could go either way"? It doesn't matter whether he could impose life imprisonment in a completely different kind of case.

This is not a murder charge; this is a charge of use of a weapon of mass destruction where death results. And Morgan requires that you test the jurors' ability to impose life imprisonment for the crime charged. So we think we are clearly entitled under Morgan to questioning on the -- on that issue.

Finally, even if the Court were to rule against us on that, it would -- we would -- we should nevertheless be allowed to find out whether the juror would always impose the death penalty on somebody where it was proven beyond a reasonable doubt that he intentionally committed a murder or a killing which, of course, has to be proven as a threshold finding.

Those are the only kinds of killings in which it's what's alleged in this case and it's what's required. It doesn't matter whether the juror might vote for life for an unintentional killing because that's not what we're dealing with. It's not what the government has charged. It's not what is on trial in this case. It's purely academic. It would be like saying for the government, Well, I could never impose the death penalty for anyone under the age of 25. The government wouldn't say, Well, that's fine because who knows what age the defendant will turn out to be. That would not be acceptable to the government and it's not acceptable to us and it's not acceptable under the Eighth Amendment and the due process clause of the Fifth Amendment to be tried by a jury that would impose the death penalty -- or even has a single member that would impose the death penalty for every intentional murder. This juror is a blank slate on that. We don't know because he hasn't been asked.

So those are the questions -- those are why we ask for those follow-up questions, and we really don't think we're going to have a fair jury unless they're asked.

MR. BRUCK: If I may, your Honor, Question 94 goes only to the question of penalty. Our request is not about penalty; it is about guilt. And that's where the rubber hits the road, I think, in terms of prejudgment in this community. It's the idea of being on a jury that acquits this man and lets him go home, and then people themselves go home and face the members of their family and the people they work with and their neighbors. And I mean, let's face it, we all know how that would be received.

Now, the government may say, Well, it's not likely to happen, and maybe it's not, but we're supposed to have a fair trial. And the trial is not supposed to be over already on the issue of guilt or innocence. I think there is such a pervasive sense that "we know he did it" in this community that we're sort of skipping over that. And the truth of the matter is that there would be such an explosion of outrage if that were to happen. We know that and these jurors know that.

And I think it is critical for the Court to ask them to imagine that and then tell you what they would think themselves, what other people would think of them, and then whether they could really put aside what they've heard. We're not getting to find out what they've heard; let's at least find out what effect whatever they've heard has had on them.

MR. BRUCK: If I may so the record is clear, we think that question is most likely to get at the underlying issue, which is whether the juror can presume the defendant guilty, not say he does -- presume the defendant innocent, not to say that he does but really presume -- accord the presumption of innocence. If that question would be explained and put to the juror, we would be in much better shape, I think, than with the question never being asked.

So we ask at least for questions getting at whether the juror is capable of presuming this defendant innocent.

MS. CONRAD: I thought that the questionnaire was the initial series of screening questions to determine whether people could be excused for cause based on their questionnaire. I thought based on what your Honor has previously said, including about venue, that there would be a searching voir dire, and a searching voir dire would include where they were on April 19th, whether they sheltered in place, whether they have -- you know, what they've been exposed to in the media.

And, for example, with [REDACTED], when he says "My wife had a tough time after treating victims in the ICU," what exactly he means by that and how that affects him. It seems to me that those are appropriate follow-up questions. And if we can at least have the juror step out after being questioned by your Honor, and at least at that point be asked if we have any follow-up questions as opposed to forecasting before the questions are asked what follow-up questions we might want in response to the jurors' answers -- I think that puts us in an impossible position.

And I would respectfully request that after your Honor asks the questions the juror be asked to wait outside and we have an opportunity to propose additional follow-up questions suggested either by the questionnaire or by the answers. But I don't think we should --