2.Defense Requests for Expanded Voir Dire
35 linesTHE COURT: Okay. So defense has filed some additional follow-up questions this morning.
MR. BRUCK: Yes.
THE COURT: I've looked at them. A lot of them, I think, are territory we covered yesterday. I will say that I have -- for example, Question No. 2, I don't know if it was phrased in this way to every juror, but I know particularly as to later prospective jurors, I began to phrase the Question 77 question in terms of the responsibility of the government to prove beyond a reasonable doubt despite what people might have thought and the defense has no burden and so on. I'll continue to do that. I think that satisfies the issue on No. 2.
MS. CONRAD: Your Honor, if I could on that point, the proposed question asks about the presumption of innocence. And one issue that we have with the questioning yesterday, particularly with the vast number of people who say that they have formed an opinion about guilt, is your Honor's follow-up to that was asking them about the burden of proof and understanding the burden is on the government. But your Honor did not ask about and did not follow up about whether, despite that preconceived belief in Mr. Tsarnaev's guilt, they could presume him innocent. And Taylor v. Kentucky says those are two separate concepts, and it seems to me that that is a crucial area of this inquiry where you -- especially where you have so many people coming in with the belief that Mr. Tsarnaev is guilty, is to ask them whether they can and will presume him innocent. It is insufficient, I would suggest, to simply say, Do you understand that the burden of proof is on the government?, because that suggests that they start at an equal plane as opposed -- and then decide whether the evidence amounts to proof beyond a reasonable doubt as opposed to starting with the presumption of innocence. I did a quick search of the transcripts from yesterday, and your Honor did not ask them about the presumption of innocence at all. And I would urge your Honor to do so certainly going forward.
In addition, a somewhat related but perhaps different point -- and this maybe goes to Mr. Bruck's point -- with respect to certain issues where the defense -- the juror, excuse me, expressed a certain bias -- for example, I believe -- was it the first juror questioned yesterday, had an anti-Muslim bias, your Honor asked whether that would interfere with their ability to fairly and impartially evaluate the evidence in the case. Well, that's fine for the guilt phase, putting aside the issue about presumption of innocence, but I would submit that it's not fine for the penalty phase because, for the penalty phase, the question of bias is not just a fair and impartial evaluation of the evidence. It's whether they can fairly weigh the aggravating and mitigating factors. Many of the jurors' responses are looking at this, Do I believe the witnesses? The facts are the facts. But that's not at issue in the penalty phase. I think that needs to be addressed more directly.
MR. BRUCK: If I could finish with our request, what we have done here, your Honor, is to boil down the earlier series of requests. We're not withdrawing any of the ones that we made in writing in our prior filing, which were three sets of requests: one on publicity, one on Morgan, and one on Witherspoon. But I have combined them for efficiency sake into a single follow-up request. I'd like to say a couple of things about some of the other ones that Miss Conrad didn't refer to.
The first one, as we noted, What stands out in your mind?, is the question that was included in the Skilling transcript at the defense request, and the Court cites that with approval. That question was excluded from the questionnaire when we asked for it or any similar question about content. And the Court at that time -- it told us that that would be covered in the oral voir dire. So we think it's -- to ask this Skilling question is, to say the least, appropriate.
And then we've suggested some prompts for jurors who say, Well, just what I read in the papers, or Nothing particular. Got to say that the investigation that we've done tells us that jurors know an extraordinary amount of detail. They know things about the welfare history of this family. It's constantly being talked about on talk radio. They know things -- derogative information, much of it false, about the defendant's sisters. And that is the staple of talk radio. But if there isn't a question posed, these people will be on the jury, and none of us will be any the wiser. We really -- if ever there was a case where some modest amounts of content inquiry is necessary, this is the case.
Miss Conrad has talked about our second request.
Our third request, If you were the defendant on trial in this case, would you want someone on your jury who thinks about you the way you think about Mr. Tsarnaev? That is taken from Irvin v. Dowd. The United States Supreme Court cited almost exactly that question. I put it into slightly more modern wording. It was a 1961 case. But the Court noted with great concern that many of the jurors in the Irvin v. Dowd case answered no to that question or many of the members of the venire. So it's a proper question. It does get close to the juror, but that's what this is all about. That's the point of this process. And so we think that that is a traditional, well-established question with a very, very good pedigree, and it should be asked.
Then we've -- we continue to feel that there has to be questions about Paris, and we've asked for that again, very short, succinct question. But it's on people's minds, and I've just seen a news account that there is -- two more hostages have apparently been seized this morning in Paris. They're not sure if it's a terrorist attack or not, but this is what jurors are hearing about when they're driving to the courthouse today. And how could we not ask about it?
And then, No. 5, I don't think that this is appropriate for every juror, but we have got jurors who want to be on this jury. I won't belabor this anymore. We've made this point. This is a route to celebrity and to -- possibly to financial profit for some people who are of a mind to look at this opportunity in that way. And this is the one question that no one will be ready for who is of that mind. What's the right answer? If you're someone with an agenda and the judge says, Do you want to be on this jury?, what are you supposed to say? Yes, and you give it away? No, and the judge might say, Well, guess what? I've got good news for you. You're off. What would be valuable is not so much the answer but the body language, the reaction, the hesitation, the, Uh-oh, what am I supposed to say now? That will speak volumes but only if the question is asked. So we'd ask you to keep that in your arsenal for inquiry and to use it as appropriate.
The Morgan question, the first No. 6 is the question asked in Morgan. It's not a particularly good question, but it's the one that caused the United States Supreme Court to reverse the death sentence in Morgan v. Illinois. It goes far beyond the quite-difficult-to-understand question that the government proposed about, Would you meaningfully consider aggravation and mitigation?, without any inkling of what the point of that is. The first juror that was asked that question said, Can you repeat the question? I don't understand it. And for good reason. So this is the Morgan question. And then No. 7, 8, and 9, we've tried to put that into English in a form that's understandable just to be sure that we're not getting jurors who are actually -- whose actual state of opinion is, Sure, in a run-of-the-mill murder case, I could consider both punishments but not in a terrorism case, not in a case where a child was killed, not in a case involving weapons of mass destruction. I don't want to belabor this, but these are not stakeout questions. These are Morgan questions framed in terms of the charge that the government has brought in this case.
Finally, the Witherspoon questions are just -- speak for themselves, and I think, by the end of the day, the Court was asking fairly close to something like this, but we wanted to put our request in writing.
Then as to the procedure, we think it's terribly important that the Court give us an opportunity outside the presence of the juror to ask for follow-up questions rather than simply send the juror home after the Court's questioning has concluded. We'd prefer, and actually think it would be faster, if the Court would, as was done in the Skilling case, allow limited follow-up questioning by counsel. If the Court is unwilling to do that, then at a minimum, if you would excuse the juror and hear from us so that we have an opportunity to ask for specific follow-up questions, we'd appreciate that.
THE COURT: Well, I think we're doing that at the end of the day or actually in the middle of the day.
MS. CONRAD: May I just add one thing to that? With respect to follow-up questions -- in our original submission, Question 4, we asked, "How did you first learn about the bombing of the Marathon?" "Where were you?" "What did you do?" "What was your reaction?" "Did your feelings change?" That was not included.
Instead, the questionnaire asks if you or anyone close to you was personally affected. If the person says no or even if the person says a friend was there, but even if they say no, we think all of the prospective jurors should be asked where they were on the 15th of April 2013 and how they learned about the Marathon bombing and where they were on April 19th because many people -- even though the question asks whether the effects include shelter in place, many people whom we know, based on where they lived or worked, must have sheltered in place, put down no. I don't think we should simply accept the no answer as covering everything.
Your Honor asked follow-up questions for people who put down that they don't use social media. Your Honor asked them, Well, what kind -- you really don't use social media? But it seems to me -- that's fine, but the crucial question that we want to get at is not just whether they were affected but how they were affected. Someone who had a loved one or even a friend or a neighbor at the Marathon in 2013, their reaction would have been presumably, when they heard about the bombing, you know, Is that person safe? Try to call. Not be able to reach. A sense of panic. A sense of fear. And we're not getting that out because we're going straight from, you know, the -- my friend or my whatever was at the Marathon to would that affect your ability to be fair and impartial in this case? We need to find out what their reaction was, not just how it relates to this case.
THE COURT: Mr. Weinreb.
MR. WEINREB: Your Honor, if I might, I'll respond in reverse order. With respect to that last request, the government agrees that a searching and probing voir dire of the jurors is appropriate in this case, but we also believe that that is the process that has taken place. And the parties jointly negotiated over a 100-plus-question questionnaire, were given an opportunity to review those, ask for follow-up on specific questions. The Court has asked follow-up on many of the questions, asked follow-up on questions of his own. It will always be the case that one more question could be asked or a hundred more questions could be asked if you had more and more information.
The whole point of that process was to try and come up with an approach that satisfied the objectives and the needs of voir dire without making the process unduly cumbersome, lengthy, and perhaps even counter-productive from having to drag on too long. We don't believe that there's any need for these additional specific questions. Many of the things that the defense has asked about are subsumed in other questions that are already on the questionnaire. One of them, for example, "Do you want to be on this jury?" This was a question on the questionnaire, "What was your reaction when you got the summons in this case?" And that fairly invited the -- an answer to this same question, "Do you want to be on this jury?" Was your reaction positive, negative, neutral? Where did your mind go? In some ways, it's an even better question because it does not force them -- it doesn't channel them into one just particular answer but gives all the whole range of things that might have been on their mind.
We don't think there's any need to ask whether they've heard or read anything about the recent attacks in Paris. There are terrorist attacks going on all over the world at virtually all times. Most of these jurors have been instructed not to listen or hear about any news related to this case. It's quite speculative to imagine they've drawn comparisons between that case and this case. I think it seems like, again, an unnecessary additional question that is covered by so many of the others that it would just be superfluous.
The question from Irvin v. Dowd, If you were the defendant on trial in this case, would you want someone on the jury who thinks about you the way you think about Mr. Tsarnaev?, that doesn't imply that question was necessary to be asked. It just noted that it had been asked and that the answer troubled the Court in that case. But all the cases that the Supreme Court has decided have emphasized over and over again that there is no catechism for voir dire. There is no requirement that particular questions be asked or that they be asked in a particular way except in very narrow exceptions, which is the Witherspoon and Morgan questions.
The government's view is that the Court has formulated -- the parties first together and now the Court has formulated -- adequate ways of asking these questions. And this particular case could have been -- this particular question, rather, could have been proposed to be included in the questionnaire. It wasn't. There are only a limited number of questions that we could include in that questionnaire. The defense evidently thought others would be better. And so I don't think now is the time to be amending it.
And then with respect to the Morgan question, I don't want to belabor that because we've had so much discussion about it. But I just want to say that the idea that the defense -- that jurors need to be asked about the specific charges in the case is a reimagining of what Morgan held. I think that if the Court looks at the language of the Morgan opinion carefully, what the Court there said over and over and over again is that it is necessary to screen out jurors who have made up their minds to vote for the death penalty in a capital case before they know anything about the particular case. That's what it says again and again. A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances because such a juror has already formed an opinion before he knows anything about what the charges are in this case other than it's a capital case. Again, the very last sentence of the case, where the Court is summarizing its holding, "Petitioner was entitled upon his request to inquiry discerning those jurors who, even prior to the state's case in chief, in other words, before they even had any idea what the evidence was going to be in the case, had predetermined the terminating issue of this trial," that being whether to impose the death penalty.
I'm not going to read all the quotes, but I've underlined ten more where the Court essentially says the exact same thing, that is, that the holding in that case is limited to determining -- to ferreting out jurors who are committed to imposing the death penalty in every capital case, every one, not just -- not necessarily limited to or potentially limited to the ones where the charges in the case -- before the facts in the case but before they know anything about the case. And so for that reason, again, we oppose these requests for case-specific warning questions.
THE COURT: Let me -- I don't want to prolong this by again going through each of the questions and addressing it. I understand the arguments, and I think you will -- I think largely we -- particularly as we got going and got further experience with the jurors, we did most of this satisfactorily yesterday. I expect I might make some modest amendments, and so you'll -- I understand your positions. You'll see what they are as they come up.
In other words, one of the difficulties here is being too tied to a script. Every juror is different. Every juror has to be sort of questioned in a way that is appropriate to the juror's questionnaire answers and then to the preceding voir dire answers and so on. So to try to stick with a repeatable formula is -- can be counter-productive actually rather than helpful. So I understand the points.
Let me raise a couple of procedural matters, I guess. A couple of occasions the -- while I was looking at the juror, the parties were looking at each other and agreeing that the juror could be excused. As a technique of doing that, it was a little awkward. Here's a suggestion: If it gets to that point, somebody could say, Excuse me, your Honor. Could we have a moment? And we can then excuse the juror for the moment, and it might turn into longer than that. Would that be satisfactory if --
MR. BRUCK: Yes.
MS. CLARKE: Yes.
THE COURT: Okay. The other is to come back to the press issue. One possible accommodation -- I don't know whether this is something we should do or not, but before I thought even more about it, I wanted to see what the parties thought about it -- is to have one or two pool representatives in the room.
MR. WEINREB: So, your Honor, the government is in favor of that proposal provided that it doesn't make doing things essentially at sidebar under the husher so inconvenient that it becomes impossible.
THE COURT: We might be able to ask them to step out for that if the particular -- if there's only a couple of them. It would be hard to ask two dozen people to step out, but I think if there were only a couple --
MR. WEINREB: I think that's fine. At least we could begin trying it that way.
MR. BRUCK: We agree with that.
THE COURT: I think we'll take a recess and see if we can negotiate that on those terms; and when we've done that, then we can come back.
MR. BRUCK: Before we leave this, there were just two very brief matters, and I also don't want to prolong this voir dire discussion. One is, though, is we cannot leave unchallenged the suggestion that because of the questionnaire we have in some way waived or defaulted all of the positions we're taking or many of the positions we're taking now. The record will reflect that there was a negotiation over the questionnaire, and then the Court ruled against us on many points particularly about content voir dire and about Morgan-type questions on the questionnaires. So there has been no waiver or agreement on the issues that we're talking about in terms of the content of the questionnaire.
The second -- and this is a request. We plan to go through yesterday's transcript and today's and perhaps brief this over the weekend. But I think when we look at the questionnaire -- at the transcript of the voir dire, we will find times in which the juror was seeming to express a bias and the Court responded with questions which I think have to be considered somewhat leading, back in the direction of asserting impartiality.
I know the Court didn't intend to lead the juror to say something that they didn't really think, but it's just an area of such sensitivity, and we would just like to respectfully make the request that the jurors be encouraged to really express what they think themselves. Thank you.
THE COURT: All right.
MR. CHAKRAVARTY: Your Honor, one other housekeeping matter. Yesterday you learned some of our jurors have criminal histories that are obviously going to be sensitive. Today is the first time I think that we're going to have a prospective juror that actually has an active warrant which the juror may not know about. We don't want to do nothing and not discharge our obligation. We don't want to cause unnecessary embarrassment. But, also, we need to come up with some way, I think, to notify the juror that he needs to take care of it. I don't know that we're the best equipped to do that. We wanted to alert your Honor just in terms of how to proceed in that --
MS. CLARKE: It's a warrant for failure to appear for jury service.
THE COURT: Really?
MS. CLARKE: Yes.
THE COURT: Before we get to that issue, with respect to the people who have records, it would be, I think, helpful for me to know in advance that that's the case. So any group of 17 or whatever, there are people -- if perhaps before we begin the process, I be alerted to what was coming and maybe have a copy of the record. So I'd like whatever papers you have on this particular -- are there other people in this group of 17 that there would be an issue?
MR. CHAKRAVARTY: Your Honor, with criminal records, there are, probably a handful.
THE COURT: That were not disclosed?
MR. CHAKRAVARTY: Some kind of criminal record. I have them. I can provide them.
THE COURT: That were or were not disclosed?
MS. CONRAD: Both.
MR. CHAKRAVARTY: Both.
THE COURT: Well, again, during the recess, if you could make copies of those so I could see them. Okay. Thanks. We'll take a short recess.
COURT CLERK: All rise for the Court.
(Recess taken at 9:55 a.m.)
(The venire entered the room at 10:43 a.m.)